The claimant, a stateless Palestinian from Syria, contests the decision by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) pursuant to which he is not entitled to asylum because he entered Germany from a safe third country.

The claimant left Syria, together with his parents and siblings (the claimants in proceeding 1 C 5.19) in 2012 and entered Bulgaria. Him and his family was granted subsidiary protection there in February 2013. In November 2013, the claimant and his family entered the Federal Republic of Germany by way of Romania, Hungary and Austria, and lodged another application for asylum here on 29 November 2013.

On 22 January 2014, the Federal Office addressed a request to take back to the Bulgarian state refugee administration, which that authority refused in a letter dated 10 February 2014. Because subsidiary protection had already been granted to the claimant in Bulgaria, the provisions on taking back under the Dublin III Regulation did not apply. The competent Bulgarian authority was the Bulgarian border police.

By notice of 27 February 2014, the Federal Office found, without examining the substance of the asylum application, that the claimant was not entitled to asylum because he had entered from Bulgaria, a safe third country (no. 1), and ordered his deportation to Bulgaria (no. 2).

In response to the action filed against this notice, the Administrative Court (Verwaltungsgericht) dismissed the action. On appeal on points of fact and law by the applicant, the Higher Administrative Court (Oberverwaltungsgericht) annulled the deportation order to Bulgaria, but with regard to all other aspects dismissed the appeal. 

Following the appeal on points of law lodged by the claimant, the Senate, by decision of 23 March 2017 - 1 C 17.16 - (Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 158, 271), suspended the proceedings and requested a preliminary ruling from the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) on questions concerning the interpretation of, inter alia, article 33 (2) (a), article 52 (1) of Directive 2013/32/EU and article 4 of the Charter of Fundamental Rights of the European Union (CFR). The Court of Justice ruled on these questions by judgment of 19 March 2019 - C-297/17, C-318/17, C-319/17 and C-438/17 [ECLI:EU:C:2019:219], Ibrahim et al. In a further decision issued in two other proceedings for the request of a preliminary ruling, the Court of Justice provided clarification on the interpretation of article 33 (2) (a) of Directive 2013/32/EU, which is also of significance in the present proceedings (CJEU, decision of 13 November 2019 - C-540/17 and C-541/17 [ECLI:EU:C:2019:964], Hamed et al. -).

The claimant's appeal on points of law met with success and led to the case being referred back to the Higher Administrative Court.

11 (...) The assumption of the Higher Administrative Court that the Federal Office's notice based on the national provisions on third countries, was lawful on the grounds that the Republic of Austria, through which the applicant entered the country, was a safe third country within the meaning of article 16a (2) first sentence of the Basic Law (GG, Grundgesetz) and section 26a (1) first sentence of the Asylum Act (AsylG, Asylgesetz), violates federal law (article 137 (1) no. 1 of the Code of Administrative Procedure (VwGO, Verwaltungsgerichtsordnung)). As a Member State of the European Union, Austria already fails to constitute a third country within the meaning of said provisions. In the absence of factual findings on the living conditions of recognised beneficiaries of protection in Bulgaria, the Senate cannot decide conclusively whether the contested notice can be re-interpreted as an inadmissibility decision under section 29 (1) no. 2 AsylG. The case must therefore be referred back to the Court of Appeal for a further inquiry into the facts (section 144 (3) first sentence no. 2 VwGO).

12 (...)

13 The subject matter of the appeal proceedings on points of law are only the findings made under no. 1 of the notice of the Federal Office of 27 February 2014, declaring that the claimant is not entitled to asylum on account of his entry from a safe third country. In the appeal proceedings on points of law, the deportation order is no longer subject matter of the dispute, since the Higher Administrative Court has set it aside and the judgment has become final and binding in this respect.

14 The Court of Appeal rightly held that the action for annulment brought by the claimant was admissible. Under the current legislation, the Federal Office's finding that the claimant is not entitled to asylum on account of his entry from a safe third country is equivalent to an inadmissibility decision under section 29 (1) no. 3 AsylG (see in more detail under 1.1) and is therefore to be challenged with the action for annulment (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 14 December 2016 - 1 C 4.16 - BVerwGE 157, 18 para. 16 et seqq. and of 1 June 2017 - 1 C 9.17 - (...) para. 15).

15 1. The opinion of the Court of Appeal that the contested notice (no. 1) was lawful in application of section 26a (1) first and second sentence, section 31 (4) AsylG on the ground that the applicant entered Germany via Austria and thus from a safe third country within the meaning of article 16a (2) first sentence GG (section 26a (1) first and second sentence, section 31 (4) AsylG) violates federal law. The findings based on the national third-country provisions to the effect that the claimant is not entitled to asylum under sections 26a, 31 (4) first sentence AsylG on account of his entry from a safe third country is unlawful.

16 1.1. The contested decision is to be measured against the standard of section 29 (1) no. 3 AsylG, in the version of the Integration Act (Integrationsgesetz) of 31 July 2016 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1939), which entered into force on 6 August 2016 during the appeal proceedings. This is because, at least since the insertion of this provision, an application for asylum with regard to a safe third country can no longer be rejected "only pursuant to section 26a AsylG", but only by way of an inadmissibility decision under section 29 (1) no. 3 (in conjunction with section 26a) AsylG, with due regard for the requirements stipulated therein. (...) This is already suggested by systematic interpretation. Section 29 (1) AsylG clearly serves to implement (by concentration) the (optional) grounds for inadmissibility laid down in Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180 p. 60). (...) The requirement, previously stipulated in section 31 (4) first sentence AsylG, to find that the foreign national is not entitled to asylum when the asylum application is rejected solely on the basis of the provision on safe third countries (section 26a AsylG), has been deleted by the Integration Act. The reason given in the draft act is that this finding was no longer necessary; rather, the application was to be rejected as inadmissible under section 29 (1) no. 3 AsylG (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/8615 p. 52). (...)

17 The applicability of section 29 (1) no. 3 AsylG to the present dispute is not precluded by the transitional provision in article 52 (1) of Directive 2013/32/EU. Under this provision, Member States shall apply the laws, regulations and administrative provisions referred to in article 51 (1) of the Directive to applications for international protection formally lodged after 20 July 2015 or an earlier date. Applications formally lodged before that date and procedures for withdrawing refugee status started before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85/EC. In the present case, the asylum application was lodged before 20 July 2015. However, the Court of Justice has interpreted this transitional provision in answering the question raised in the Senate's decision to request a preliminary ruling on article 33 (2) (a) of Directive 2013/32/EU (implemented by section 29 (1) no. 2 AsylG) as allowing a Member State (by virtue of the phrase "or an earlier date" in the first sentence) to provide for application, with immediate effect, of the national provision implementing article 33 (2) (a) of the Directive to asylum applications on which no legally binding decision has been made and which were lodged before 20 July 2015 and before the national provision entered into force (CJEU judgment of 19 March 2019 - C-297/17 et al. - para. 64 et seq, 69, 74). The requirements of legal certainty and equality before the law are safeguarded in Germany by section 77 (1) first sentence AsylG, which ensures that applications for international protection, which have been lodged in the course of the same period in German territory and on which no legally binding decision has been made at the time of the entry into force of section 29 (1) no. 2 AsylG, are examined in a predictable and uniform manner (CJEU, judgement of 19 March 2019 - C-297/17 et.al - para. 66 - 68). It follows from these statements that, in the present dispute, there are no objections under EU law to apply section 29 (1) no. 3 AsylG ratione temporis either.

18 1.2 Under section 29 (1) no. 3 AsylG, an application for asylum is inadmissible if a country that is willing to readmit the foreign national is regarded as a safe third country for that foreign national according to section 26a. These requirements are not met. As the Senate has already stated in its decision to request a preliminary ruling of 23 March 2017 - 1 C 17.16 - (BVerwGE 158, 271 para. 12 et seqq.), a safe third country within the meaning of this provision - according to the required interpretation in conformity with EU law - can only be a country that is not a Member State of the European Union.

19 (...)

20 (...)

21 2. The appeal judgment on points of fact and law also does not prove to be correct for other reasons (section 144 (4) VwGO). Prior to annulling an unlawful inadmissibility decision, it must be examined whether the possibility of re-interpreting such decision into another inadmissibility decision exists (see BVerwG, judgment of 15 January 2019 - 1 C 15.18 - BVerwGE 164, 179 para. 40). The Senate cannot conclusively answer this question on the basis of the available factual findings established by the competent court.

22 2.1 In any event, the contested third-country decision cannot be upheld on the basis of section 29 (1) no. 1 (a) AsylG or re-interpreted into a decision under this provision ("Dublin notice" due to the lack of international competence of the Federal Republic of Germany). Under the circumstances of the present case, only an inadmissibility decision pursuant to section 29 (1) no. 2 AsylG can possibly come into consideration. This follows from the answer given by the Court of Justice to referred question 2 by the Senate. As the asylum application was submitted before 1 January 2014, but the request to take back was lodged after that date, the Dublin III Regulation already applies to the request to take back according to article 49 (2) first sentence Dublin III Regulation. In such a case, a Member State cannot properly make a request of another Member State, within the procedures set out by that Regulation, that it takes charge or to take back a third-country national who has lodged an application for international protection in the former Member State after having been granted subsidiary protection in the latter Member State. An application for international protection can only be rejected by issuing an - in this respect more specific - inadmissibility decision under article 33 (2) (a) of Directive 2013/32/EU rather than by means of a transfer decision and not to examine the application under article 26 of the Dublin III Regulation (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 78 et seq.; see also decision of 5 April 2017 - C-36/17 [ECLI:EU:C:2017:273], Ahmed - para. 39 and 41).

23 2.2 The Senate cannot conclusively decide whether no. 1 of the notice can be upheld as an inadmissibility decision under section 29 (1) no. 2 AsylG. By virtue of this provision, an asylum application is inadmissible if another Member State of the European Union has already granted the foreign national international protection within the meaning of section 1 (1) no. 2 AsylG.

24 2.2.1 The unlawful third-country decision shall not be subject to judicial annulment in the ongoing court proceedings only, if it can be replaced by another - lawful - regulation by way of re-interpretation in accordance with section 47 Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz). (...)

25 2.2.2 On the basis of the factual findings established by the competent Court of Appeal, the Senate cannot conclusively decide whether the requirements for a re-interpretation of the contested regulation into an inadmissibility decision under section 29 (1) no. 2 AsylG are met.

26 In the case of re-interpretation (conversion), the regulation made in the administrative act is not merely based on a different legal basis but is replaced by another (lawful) regulation. Not only the authorities but also the administrative courts are authorised to do so - provided that the requirements of section 47 VwVfG are met. This does not involve a breach of the principle of effective legal protection. A re-interpretation is also still possible in appeal proceedings on points of law, provided that the factual findings of the competent court, binding on the Court deciding on appeals on points of law, are sufficient, the parties have been granted the right to be heard and that they are not impaired in their legal defence (BVerwG, judgement of 16 November 2015 - 1 C 4.15 - BVerwGE 153, 234 para. 30 with further references).

27 Pursuant to section 47 (1) VwVfG, an erroneous and therefore unlawful administrative act may be re-interpreted into a different administrative act when it has the same objective, could legally have been issued by the issuing authority using the procedures and form in fact adopted, and when the requirements for its issuance have been fulfilled. Pursuant to section 47 (2) VwVfG, this does not apply when the administrative act, into which the erroneous administrative act would have to be re-interpreted, would contradict the clearly recognisable intention of the issuing authority or when its legal consequences would be less favourable for the person concerned than those of the erroneous administrative act (first sentence). Furthermore, re-interpretation is impermissible when the withdrawal of the erroneous administrative act would not be possible (second sentence). Pursuant to section 47 (3) VwVfG, a decision that can only be taken as a non-discretionary one cannot be re-interpreted into a discretionary decision. Pursuant to section 47 (4) VwVfG, section 28 VwVfG shall apply mutatis mutandis.

28 According to this, there are no fundamental objections against the re-interpretation of a third-country decision into an inadmissibility decision under section 29 (1) no. 2 AsylG (a). Such re-interpretation is also not frustrated on the ground that section 29 (1) no. 2 AsylG would yet fail to apply to the present legal dispute ratione temporis for reasons of EU law having primacy (b). An inadmissibility decision under section 29 (1) no. 2 AsylG could have been lawfully issued by the issuing authority using the form and procedures in fact adopted (c). The formal requirements for the adoption of an inadmissibility decision are met (d). However, there is a lack of sufficient findings to assess whether the substantive requirements - to be complemented in application of the Court of Justice's case law in order to be in conformity with EU law - for issuing an inadmissibility decision under section 29 (1) no. 2 AsylG are met (e).

29 a) There are no fundamental objections against the re-interpretation of a third-country decision into an inadmissibility decision under section 29 (1) no. 2 AsylG. Both are in principle aimed at the same objective, namely rejecting to review the substance of the asylum application and the deportation of the claimant to Bulgaria (section 34a (1) first sentence and section 35 AsylG). In any case, the legal consequences of an inadmissibility decision under section 29 (1) no. 2 AsylG would not be less favourable to the claimant. Nor would the re-interpretation be contrary to the recognisable intention of the Federal Office to end the claimant's stay (if possible) without reviewing the substance of the asylum application. Both inadmissibility decisions are non-discretionary decisions. In any event, the parties have been aware of the possibility of a re-interpretation ever since the oral hearing of 23 March 2017 and the subsequent reference for a preliminary ruling to the Court of Justice (decision of the Senate of 23 March 2017 - 1 C 17.16 - BVerwGE 158, 271), so that they were able to prepare themselves for such re-interpretation in their legal defence.

30 b) Section 29 (1) no. 2 AsylG applies, ratione temporis, as the legal basis to the present legal dispute. Whether the substantive-law requirements for the issuance of the other administrative act within the meaning of section 47 (1) VwVfG are met, is assessed (...) on the basis of the point in time generally relevant for such an administrative act. Accordingly, the factual and legal situation at the time of the last oral hearing of the court responsible for finding the facts is in principle to be taken as a basis. However, section 29 (1) no. 2 AsylG, which only entered into force during the appeal proceedings on points of law, must be taken into account as, if the court responsible for finding the facts were to decide now, it would also have to take it into account pursuant to section 77 AsylG (...).

31 Nor does the transitional provision laid down in article 52 (1) of Directive 2013/32/EU preclude the application of section 29 (1) no. 2 AsylG to the asylum application lodged in this case before 20 July 2015. The Court of Justice has clarified this in response to the request for a preliminary ruling made by the Senate (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 64 et seq., 69, 74); reference is made to the above statements under 1.1 for more detailed reasons. (...)

32 c) An inadmissibility decision under section 29 (1) no. 2 AsylG could have been lawfully issued by the issuing authority - the Federal Office - using the form and procedures in fact adopted. Section 29 (2) first sentence AsylG obliges the Federal Office in procedural terms to interview the foreign national in person with regard to the reasons stipulated in subsection 1 no. 1 (b) to no. 4 prior to deciding on the admissibility of an asylum application. This provision implements article 34 (1) of Directive 2013/32/EU, which requires Member States to allow applicants to present their views with regard to the application of the grounds referred to in article 33 in their particular circumstances before the determining authority decides on the admissibility of an application for international protection. To that end, the Member States shall conduct a personal interview on the admissibility of the application. It was also in such proceedings involving a personal interview that the contested third-country decision was issued.

33 d) The formal requirements for the issuance of an inadmissibility decision are met (section 47 (1) VwVfG at the end). In the result, the requirements of section 29 (2) first sentence AsylG were complied with in this case, irrespective of the fact that the ground of inadmissibility in question did not yet apply at the time of the hearing. It is true that the Court of Appeal has not made any findings in this regard and merely referred (in another context) to the minutes of the personal interview on 2 December 2013. The Senate may, however, independently evaluate the minutes of the interview - contained in the files of the administration - in preparation of the hearing held in accordance with section 25 Asylum Procedure Act (AsylVfG, Asylverfahrensgesetz), the recorded course of which is not disputed by any of the parties. The Court of Appeal has not made any factual findings to the contrary, which would in principle be binding on the Court deciding on appeals on points of law pursuant to section 137 (2) VwGO (see BVerwG, judgment of 21 November 2017 - 1 C 39.16 - BVerwGE 161, 1 para. 35). It is apparent from those minutes that the claimant was heard in relation to an inadmissibility decision in substance in a manner just sufficient to comply with the legal requirements.

34 e) Whether the substantive-law requirements for issuing an inadmissibility decision under section 29 (1) no. 2 AsylG are met, cannot be conclusively assessed on the basis of the factual findings made by the Court of Appeal which are binding on the Senate.

35 aa) Pursuant to section 29 (1) no. 2 AsylG, an application for asylum is inadmissible if another Member State of the European Union has already granted the foreign national international protection within the meaning of section 1 (1) no. 2 AsylG; this also applies to subsidiary protection within the meaning of Directive 2011/95/EU. Those requirements are met in the present case since, according to the factual findings of the lower court, which are not challenged by procedural complaints and are therefore binding on the Senate pursuant to section 137 (2) VwGO, the claimant was granted subsidiary protection in Bulgaria before continuing his journey to Germany.

36 bb) If the written requirements of section 29 (1) no. 2 AsylG are therefore met, an inadmissibility decision under this provision may nevertheless be exceptionally precluded under the case law of the Court of Justice for reasons of EU law having primacy. This is the case where the living conditions which would await the applicant and/or claimant as a recognised beneficiary of protection in the other Member State would expose him or her to a serious risk of suffering inhuman or degrading treatment within the meaning of article 4 CFR. Under these circumstances, Member States are prohibited from exercising the power conferred by article 33 (2) (a) of Directive 2013/32/EU to reject an application for international protection as inadmissible on the ground that the applicant has already been granted international protection by another Member State (see now expressly CJEU, decision of 13 November 2019 - C-540/17 et al. - para. 35; see also judgment of 19 March 2019 - C-297/17 et al. - para. 88). It is thus clarified that breaches of article 4 CFR in the Member State where protection is otherwise granted must not only be taken into account when reviewing the lawfulness of a deportation warning but already result in the unlawfulness of the inadmissibility decision.

37 In response to the request by the Senate, the Court of Justice has, in the "Ibrahim" judgment - based on the "Jawo" judgment of the same day - also specified in more detail the standard for a violation of article 4 CFR by the living conditions in the country granting protection. According to this, deficiencies, which may be systemic or generalised or which may affect certain groups of people, are to fall within the scope of article 4 CFR if they attain a particularly high level of severity, which depends on all the circumstances of the case and which would be attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself or herself, irrespective of his or her wishes and his or her personal choices, in a situation of extreme material poverty that does not allow him or her to meet his or her most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his or her physical or mental health or puts him or her in a state of degradation incompatible with human dignity. That threshold cannot therefore cover situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned, where they do not entail extreme material poverty placing that person in a situation of such gravity that it may be equated with inhuman or degrading treatment (see CJEU, judgments of 19 March 2019 - C-297/17 et al. - para. 89-91 and - C-163/17 [ECLI:EU:C:2019:218], Jawo - para. 91-93; decision of 13 November 2019 - C-540/17 et al. - para. 39).

38 The mere fact that the living conditions in the Member State which granted international protection do not comply with the provisions of Chapter VII of the Qualification Directive cannot, in view of the fundamental importance of the principle of mutual trust, prevent the Member States from exercising the option granted by article 33 (2) (a) of Directive 2013/32/EU as long as the severity threshold of article 4 CFR, as described above, is not exceeded (CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 92). Nor does the fact that beneficiaries of subsidiary protection in the Member State which has granted the applicant such protection receive no or markedly inferior subsistence benefits in comparison to other Member States though they are not treated differently from nationals of that Member State, in itself preclude the rejection of a (renewed) application for international protection as inadmissible (CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 93 et seq.) Systemic deficiencies in the asylum procedure itself may justify infringement proceedings against the Member State having granted subsidiary protection, but likewise do not prevent the other Member States from exercising the option to reject a new application as inadmissible (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 95-100).

39 Based on these standards, the Senate cannot conclusively decide on the question of whether an inadmissibility decision under section 29 (1) no. 2 AsylG as an exception is unlawful in this case on the grounds that the living conditions for persons entitled to subsidiary protection in Bulgaria amount to inhuman or degrading treatment within the meaning of article 4 CFR. This is because the Court of Appeal - based on its different legal approach, consistently - has not made any factual findings on the living conditions of beneficiaries of subsidiary protection in Bulgaria. The annulment of the deportation order was not based on the assumption that these persons had to face a life of extreme material poverty in Bulgaria, which may be equated with inhuman or degrading treatment, but on the fact that it was not clear whether Bulgaria's willingness to take back persisted.

40 However, it cannot be excluded from the outset that the living conditions for recognised beneficiaries of subsidiary protection in Bulgaria may be equated with inhuman or degrading treatment within the meaning of article 4 CFR. Here, the particular situation of the person concerned must also be taken into account. The claimant alleged that he had received "very bad" treatment in Bulgaria and that he was particularly vulnerable because he was severely traumatised and required specialist medical treatment. Bulgaria is one of the Member States where the question of a situation of extreme material poverty in breach of article 4 of the CFR is regularly addressed in the jurisprudence of the courts responsible for finding the facts at least in some detail, although, since the Court of Justice's "Ibrahim" and "Jawo" judgments have become known, the result has regularly been that the high severity threshold required was not met (...). The judicial obligation to assess, in line with the aforementioned requirements, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, whether there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people in Bulgaria, that would expose the claimant to a risk of extreme material poverty in violation of article 4 of the CFR (see CJEU, judgment of 19 March 2019 - C-297/17 et al. - para. 88 et seq.) is a task for the courts responsible for finding the facts. The legal dispute must therefore be referred back to the Court of Appeal for further inquiry into the facts (section 144 (3) first sentence no. 2 VwGO).

41 3. (...)