On the 7th September 2023, the Court of Justice of the European Union (CJEU) AG Emiliou delivered his Opinion in the case of C-216/22. The case concerned a Syrian national who received subsidiary protection in Germany but whose second asylum claim was rejected on the basis that a CJEU judgment (Bundesamt für Migration und Flüchtlinge (Military service and asylum) did not give rise to a new element changing the applicant’s position as required in order to examine a subsequent application on the merits. The referring court thereby invited the Court to clarify the interpretation of the concept of “new element” within the meaning of Article 33 (2) (d) and Article 40 Directive 2013/32 and the extent of the remedy an applicant must have against the decision to reject a subsequent application as inadmissible.

The AG firstly reiterated that “new element” is an element on which the previous decision could not be based and must significantly add to the likelihood that the application will be successful on the merits. He furthermore continued that this concept must be interpreted to the effect that it can also apply to a judgment of the CJEU which entails a change in the interpretation of the national provisions on which the final decision of the asylum application was based, without affecting the validity of those provisions. The AG then considered that the date a judgment is delivered is irrelevant for its use as a new element, as the legal effects are the same and this is consistent with previous clarifications of the Court whereby elements which already existed but were not relied on by the applicant in the first application can still be considered as “new elements”.

The AG Emiliou considered the third question regarding effective remedies and the scope of judicial review of an appeal against a decision declaring a subsequent application inadmissible. He referred to the procedural autonomy of Member States (MS) and the Alheto judgment and concluded that MS are free to provide that national courts should not assess a subsequent application on the merits but that if national courts are allowed to make this assessment rather than the administrative authorities, this must be done in line with the relevant procedural guarantees set out in Directive 2013/32.