1 The claimant, by his own account, a citizen of Eritrea, 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.

2 Up until September 2011, the claimant lived in Italy where he stated a different name and a different date of birth and where he was treated as an Ethiopian national. In Italy, he was recognised as a refugee and received a residence permit valid until 5 February 2015 as well as a passport that was also valid until 5 February 2015.

3 In September 2011, he entered Germany and applied for recognition as a person entitled to asylum. Since his fingertips were changed, it was not possible to immediately perform an identification procedure. In a hearing on this issue on 1 December 2011, he stated, amongst other things, that he had not been to any other European country before. His fingerprints taken in June 2012 showed that he had already applied for protection in Italy. When asked to take over the asylum procedure, the Italian Ministry of the Interior stated on 8 January 2013 that the claimant had been granted refugee status in Italy. Since his asylum procedure was thereby completed, take back was not possible under the Dublin rules, but under the Readmission Agreement. On 26 February 2013, the Italian Ministry of the Interior informed the Federal Police Headquarters that the application to take back the claimant had been granted because he was recognised as a refugee so that his return to Italy was approved.

4 In its notice of 18 February 2013, the Federal Office found that the claimant is not entitled to asylum because he entered Germany from a safe third country (no. 1) and ordered his deportation to Italy (no. 2).

5 In response to the action filed against this notice, the Administrative Court (Verwaltungsgericht) dismissed the action in its judgment of 15 April 2013. In its judgment of 19 May 2016, the Higher Administrative Court (Oberverwaltungsgericht) annulled the deportation order to Italy, but with regard to all other aspects dismissed the appeal. It stated that the decision that the claimant is not entitled to asylum in the Federal Republic of Germany was lawful because the claimant entered Germany from a safe third country within the meaning of article 16a (2) first sentence of the Basic Law (GG, Grundgesetz) (section 26a (1) first and second sentences of the Asylum Act (AsylG, Asylgesetz)). It stated that Italy was a safe third country. The claimant was therefore not at risk of inhuman or degrading treatment within the meaning of article 3 of the European Convention on Human Rights (ECHR). In Italy, foreign nationals who are recognised as refugees there have the same rights and obligations as Italian nationals, i.e. they are in principle expected to pay for their accommodation and livelihood themselves. This would not constitute a violation of human rights. Italy transposed Directive 2011/95/EU into national law. It could therefore be expected that recognised refugees enjoy the rights contemplated in article 20 to 35 of this Directive. However, the deportation order to Italy was unlawful because it was not certain whether Italy's willingness to take back would continue to exist after the validity term (5 February 2015) of the passport issued to the claimant had now expired.

6 The claimant's appeal on points of law contests this. First, he claims that the Federal Office was not entitled to refrain from conducting a personal interview with the claimant. Furthermore, the Federal Office could not refer to the third-country rule if the claimant was recognised as a refugee in another EU Member State. An inadmissibility decision according to article 25 (2a) of Directive 2005/85/EC was not taken.

7 The defendant claims that the asylum application was now at least inadmissible pursuant to section 29 (1) no. 2 AsylG. The obligation to hear the claimant was not violated. Pursuant to article 12 (4) of Directive 2005/85/EC, the absence of a personal interview did not prevent the asylum authority from deciding on the application for asylum.

8 The proceedings must be suspended. In accordance with article 267 TFEU, a preliminary ruling by the Court of Justice of the European Union (Court of Justice) is to be obtained on the questions raised in the operative part of the decision. (…)

9 1. Under national law, the legal assessment of the action for annulment seeking a repeal of no. 1 of the notice of 18 February 2013 is founded on the Asylum Act in the version promulgated on 2 September 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798), as last amended by the Fiftieth Act Amending the Criminal Code - Improvement of Protection of Sexual Self-Determination (StrÄndG 50, Fünfzigstes Gesetz zur Änderung des Strafgesetzbuches - Verbesserung des Schutzes der sexuellen Selbstbestimmung) of 4 November 2016, which entered into force on 10 November 2016 (BGBl. I p. 2460). According to the established jurisprudence of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), changes in the law occurring after the appeal judgment must be taken into consideration if they had to be considered by the court of appeal - if it were to decide instead of the court deciding on appeals on points of law. Since this legal dispute concerns issues of asylum law where the court of appeal had to refer to the factual and legal situation at the time of the last oral hearing pursuant to section 77 (1) first sentence AsylG, it would have to consider the current legal situation if it were to decide on the matter now. This includes the recast version of section 29 AsylG as created by the Integration Act (Integrationsgesetz) of 31 July 2016 (BGBl. I p. 1939) as of 6 August 2016.

10 The following provisions of national law are hence the decisive legal framework for the legal dispute:

11 Article 16a GG
(1) Persons persecuted on political grounds shall be entitled to asylum.
(2) Subsection (1) may not be invoked by a person who enters the federal territory from a Member State of the European Communities or from another third state in which application of the Convention Relating to the Status of Refugees and of the Convention for the Protection of Human Rights and Fundamental Freedoms is assured. The states outside the European Communities to which the criteria of the first sentence apply shall be specified by a law requiring the consent of the Bundesrat. (...)
(...)

12 Section 24 AsylG
(1) The Federal Office shall clarify the facts of the case and compile the necessary evidence. After the application for asylum has been filed, the Federal Office shall inform the foreign national in a language he can reasonably be supposed to understand about the course of the procedure and about his rights and obligations, especially concerning deadlines and the consequences of missing a deadline. It shall interview the foreign national in person. The interview may be dispensed with if the Federal Office intends to recognise the foreign national's entitlement to asylum or if the foreign national claims to have entered the federal territory from a safe third country (section 26a). (...)
(...)

13 Section 26a AsylG
(1) Any foreign national who has entered the federal territory from a third country within the meaning of article 16a (2) first sentence of the Basic Law (safe third country) cannot invoke article 16a (1) of the Basic Law. He or she shall not be granted asylum. The first sentence shall not apply if
1. (...)
2. the Federal Republic of Germany is responsible for processing an asylum application based on European Community law or an international treaty with the safe third country, or if
3. (...)
(2) In addition to the Member States of the European Union, safe third countries are those listed in Annex I.

14 Section 29 AsylG
(1) An application for asylum shall be inadmissible if
1. another country
a) according to Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180 of 29 June 2013, p. 31); or
b) based on other European Union law or another international treaty
is responsible for conducting the asylum procedure;
2. another Member State of the European Union has already granted the foreign national international protection within the meaning of section 1 (1) no. 2;
3. 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;
(...)

15 Section 34a AsylG
(1) If the foreign national is to be deported to a safe third country (section 26a) or to a country responsible for processing the asylum application (section 29 (1) no. 1), the Federal Office shall order his or her deportation to this country as soon as it has been ascertained that the deportation can be carried out. (...) No prior deportation warning or time limit shall be necessary. If it is not possible to order a foreign national's deportation in line with the first or second sentences, the Federal Office shall warn the foreign national that he or she will be deported to the country in question.
(2) (...)

16 Section 35 AsylG
In the cases under section 29 (1) no. 2 and 4, the Federal Office shall warn the foreign national that he or she will be deported to the country where he or she was safe from persecution.

17 Section 37 AsylG
(1) The decision of the Federal Office as to the inadmissibility of an application under section 29 (1) no. 2 and 4 and the deportation warning shall become ineffective if the administrative court grants the application pursuant to section 80 (5) of the Code of Administrative Court Procedure. The Federal Office shall continue the asylum procedure.
(...)

18 Section 77 AsylG
(1) In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing; if the decision is taken without an oral hearing, it shall be based on the situation at the time the decision is taken. (...)

19 Section 25 Residence Act (AufenthG, Aufenthaltsgesetz)
(...)
(3) A foreign national should be granted a residence permit if a deportation ban applies pursuant to section 60 (5) or (7). (...)
(...)

20 Section 60 AufenthG
(1) In application of the Convention relating to the Status of Refugees of 28 July 1951 (BGBl. 1953 II p. 559), a foreign national may not be deported to a state in which his or her life or liberty is under threat on account of his or her race, religion, nationality, membership of a certain social group or political convictions. This shall also apply to persons who are entitled to asylum and to foreign nationals who have been incontestably granted refugee status or who enjoy the legal status of foreign refugees on other grounds in the federal territory or who have been granted foreign refugee status outside of the federal territory in accordance with the Convention relating to the Status of Refugees. Where the foreign national cites the ban on deportation pursuant to this subsection, the Federal Office for Migration and Refugees shall establish in an asylum procedure whether the conditions stated in the first sentence apply and the foreign national is to be granted refugee status, except in cases covered by the second sentence. The decision by the Federal Office shall only be contestable subject to the provisions of the Asylum Act.
(2) Foreign nationals may not be deported to a state where they face serious harm as referred to in section 4 (1) of the Asylum Act. Subsection (1) third and fourth sentences shall apply mutatis mutandis.
(...)
(5) A foreign national may not be deported if deportation is impermissible under the terms of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (BGBl. 1952 II p. 685).

21 Section 86 Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)
(1) The court shall investigate the facts of the case ex officio; the parties shall be consulted in doing so. It shall not be bound to the submissions and to the application to take evidence filed by the parties.
(...)

22 Section 46 Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz)
Application for annulment of an administrative act which is not invalid under section 44 cannot be made solely on the ground that the act came into being through the infringement of regulations governing procedure, form or local competence, where it is evident that the infringement has not influenced the decision on the matter.

23 Article 2 of the European Agreement on Transfer of Responsibility for Refugees of 16 October 1980 (BGBl. 1994 II p. 2646)
(1) Responsibility shall be considered to be transferred on the expiry of a period of two years of actual and continuous stay in the second State with the agreement of its authorities or earlier if the second State has permitted the refugee to remain in its territory either on a permanent basis or for a period exceeding the validity of the travel document.

24 This period of two years shall run from the date of admission of the refugee to the territory of the second State or, if such a date cannot be established, from the date on which he presents himself to the authorities of the second State.

25 2. The questions referred are relevant for the decision and require clarification by the Court of Justice of the European Union.

26 a) The Federal Office was not empowered to refuse the assessment of the asylum application on the grounds that the claimant entered from a safe third country. That decision, founded on section 26a AsylG, must be measured against the standard of section 29 (1) no. 3 AsylG, in the version of the Integration Act of 31 July 2016 (BGBl. I p. 1939), which entered into force during the appeal proceedings. According to that provision, an application for asylum is inadmissible if a country that is willing to readmit the foreign national is regarded to be a safe third country for that foreign national according to section 26a AsylG. The requirements of that provision are not met, because according to the required interpretation in conformity with EU law, only a country that is not a Member State of the European Union can be a safe third country in this sense. The Senate considers this to be an "acte clair", as explained in more detail in its decisions to request a preliminary ruling of 23 March 2017 (see, i.a., BVerwG - 1 C 17.16 - para. 12 et seqq.).

27 b) The questions referred arise within the scope of the question to be examined by the Senate as to whether the third-country decision taken by the Federal Office can be re-interpreted as a different lawful decision. One option is the inadmissibility of the asylum application pursuant to section 29 (1) no. 2 AsylG. According to this provision, an application for asylum is inadmissible if another EU Member State has already granted the foreign national international protection within the meaning of section 1 (1) no. 2 AsylG. Until section 29 (1) no. 2 AsylG entered into force in August 2016, the inadmissibility of asylum applications by foreign nationals who - like in this case - had been granted refugee status in another Member State was based on section 60 (1) third sentence AufenthG (see BVerwG, judgment of 17 June 2014 - 10 C 7.13 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts), 150, 29 para. 29). The power to issue such a national regulation was already contained in article 25 (2) (a) of Directive 2005/85/EC. Article 33 (2) (a) of Directive 2013/32/EU meanwhile expanded this possibility to any form of granting international protection by another Member State. In these proceedings, it can hence be left open which version of the Directive on common procedures for granting and withdrawing international protection is relevant in this case (see the decisions to request a preliminary ruling by the referring court of 23 March 2017, BVerwG - 1 C 17.16 et al.).

28 aa) The need to examine the constituent elements of section 29 (1) no. 2 AsylG did not become obsolete in the present case due to the fact that the decision by the Federal Office became ineffective when the Administrative Court granted interim protection pursuant to section 37 (1) AsylG. This is not the case here already because the suspensive effect of the action was ordered against a notice based on the third-country regulation of section 26a AsylG and the deportation order issued thereunder, whilst the regulation on ineffectiveness of section 37 (1) AsylG only applies to inadmissibility decisions pursuant to section 29 (1) no. 2 and 4 AsylG, but not to third-country notices pursuant to section 29 (1) no. 3 AsylG. It was therefore not necessary to decide whether the reference in section 37 (1) AsylG to section 29 (1) no. 2 AsylG is an editorial mistake.

29 bb) The constituent elements of section 29 (1) no. 2 AsylG are satisfied. Italy is a Member State of the EU. The Court of Appeal found that the claimant was granted refugee status within the meaning of Directive 2011/95/EU and therefore international protection within the meaning of section 1 (1) no. 2 AsylG in Italy.

30 cc) In the present case, it is not necessary for the Court of Justice to clarify the question regarding how to proceed if the concrete form of international protection, i.e. the living conditions of persons who have been granted refugee status in the Member State granting refugee protection to the third-country national, violates article 4 of the Charter of Fundamental Rights of the European Union (CFR) or article 3 ECHR (see referred question 3b) first alternative of the decision to request a preliminary ruling of 23 March 2017, BVerwG - 1 C 17.16). This is because the Court of Appeal found on the basis of its assessment of facts and evidence, which is binding upon the court deciding on appeal on points of law, that these conditions in Italy do not breach article 4 CFR or article 3 ECHR. Furthermore, the claimant did not contest these findings in his appeal on points of law.

31 dd) However, clarification is required with regard to the question as to whether the rejection of the asylum application of a foreign national, who has been granted refugee status, as being inadmissible is excluded if the concrete form of international protection, i.e. the living conditions for persons who have been granted refugee status, in the Member State (here: Italy) where this status was granted, does not fulfil the requirements of article 20 et seqq. of Directive 2011/95/EU without breaching article 4 CFR and/or article 3 ECHR. The Court of Appeal answered this question in the negative in as far as it found that the transposition of the provisions of article 20 to 35 of Directive 2011/95/EU was legally effective. However, the Court did not sufficiently establish factual findings as to the extent to which recognised refugees are in fact granted difficult access to the benefits granted by the rights pursuant to article 20 et seqq. of Directive 2011/95/EU and whether they have access to the benefits under family or social networks which replace or supplement state benefits. This question is relevant for the decision because, should the question regarding the existence of a legal obstacle to an inadmissibility decision be answered in the affirmative, the case would have to be referred back to the Court of Appeal for further inquiry into the facts, whilst in the case of a negative answer, the claimant's appeal on points of law would have to be dismissed. The question requires clarification because diverging legal opinions have been issued by the national jurisprudence and because it has not yet been decided by the Court of Justice.

32 Referred question 1
With question 1, the referring court seeks clarification as to whether a recognised refugee can claim another recognition procedure in another EU Member State if the living conditions for refugees there do not breach article 4 CFR and article 3 ECHR, but if factual problems do exist below this threshold with regard to access to the benefits laid down in article 20 et seqq. of Directive 2011/95/EU. The referring court tends to negate such claim, for two reasons.

33 On the one hand, lowering the threshold defined by article 4 CFR and article 3 ECHR would undermine the Common European Asylum System and the mutual trust underlying this system. This would facilitate the secondary movement of beneficiaries of protection, which has already reached substantial levels, as well as the so-called "asylum shopping" the prevention of which is one of the aims of the Common European Asylum System. The rules of the Qualification Directive for the form of international protection grant refugees subsistence benefits that do not exceed the extent to which Member States grant such benefits to their own nationals (see articles 27, 29 (1) and 30 of Directive 2011/95/EU). This means that refugees in Italy - unlike in Germany - do not receive state-funded social welfare because the Italian state does not grant such benefits to its own citizens either. Furthermore, the level of state benefits and the offering of integration facilities (article 34 of Directive 2011/95/EU) varies strongly between the individual Member States. In this respect, the EU legislature refrained from standardisation, even for recognised refugees. This means that EU law can, at best, require the assessment of an application for repeated granting of refugee status in another Member State despite the inadmissibility of such application under the national law of that state if the living conditions in the Member State which granted the applicant refugee status infringe article 4 CFR and/or article 3 ECHR (...).

34 On the other hand, there is no need for another asylum procedure even if the question as to whether the need for protection exists beyond article 4 CFR and article 3 ECHR is answered in the affirmative. An alternative to this is a solution based on residence law which grants to refugees recognised in another Member State the rights pursuant to article 20 et seqq. of Directive 2011/95/EU in Germany or at least a secured legal status without performing a new recognition procedure as long as the refugees cannot be reasonably expected to stay in such other Member State. In section 60 (1) second sentence AufenthG, the German legislature made use of the option allowed - albeit not mandatory - under international and EU law to grant limited legal effect to recognition decisions by other countries even in Germany. Pursuant to this, the ban on deportation to the state where the refugee is persecuted pursuant to section 60 (1) second sentence AufenthG is also applicable to foreign recognitions of refugee status (BVerwG, judgment of 17 June 2014 - 10 C 7.13 - BVerwGE 150, 29 para. 29). If (in an exceptional case) the foreign national is at risk of inhuman or degrading treatment within the meaning of article 4 CFR/article 3 ECHR in the state where he was recognised as a refugee, deportation of the refugee to such state is also impermissible (section 60 (5) AufenthG). If a national ban on deportation exists pursuant to section 60 (5) AufenthG, the foreign national "should" be granted a (humanitarian) residence permit pursuant to section 25 (3) first sentence AufenthG by the foreigners authority if it is not possible for the foreign national or if the foreign national cannot be reasonably expected to leave for another country. In this way, a foreign national can lawfully stay in Germany even without another asylum procedure and enjoy the integration rights related thereto. The holder of a residence permit pursuant to section 25 (3) first sentence AufenthG does not automatically have access to all rights granted to a recognised refugee in article 20 et seqq. of Directive 2011/95/EU. However, article 2 of the European Agreement on Transfer of Responsibility for Refugees of 16 October 1980, which was ratified by Germany, is applicable to a refugee recognised by another Member State. Pursuant to this article, responsibility for a refugee is transferred to Germany on the expiry of a period of two years of "actual and continuous stay" or earlier in the federal territory. This means that a refugee who was recognised in another Member State can fully enjoy the rights related to recognition as refugee even without performing another asylum procedure in Germany.

35 Even assuming the obligation under EU law that a refugee recognised in a Member State may not, even temporarily, be deprived of the rights and privileges connected to this status, and even if the refugee cannot be reasonably expected to return to the other Member State, there would be no compelling need for a new asylum procedure, this requirement could also be effectively fulfilled by treating the refugee in the Member State of stay by way of interpreting national residence and social law in conformity with EU law like a refugee recognised in this state as long as the refugee cannot be reasonably expected to return to the Member State that recognised him as a refugee. Compared to the performance of a new recognition procedure, the advantage of this is that the foreign national's position would ultimately be neither better nor worse compared to the position he would have if the Member State that granted him international protection were to comply with the related obligations under EU law. Furthermore, this would also consider the fact that the Common European Asylum System is based on the principle that an asylum application is assessed by a single Member State (article 3 (1) second sentence of the Dublin III Regulation). This is to prevent not only multiple recognition, but also diverging decisions within the European Union including all related undesired consequences under EU law - which cannot be ruled out when an asylum procedure is repeated.

36 Referred question 2
With question 2, which is divided into two variants, the referring court seeks further clarification should question 1 be answered in the affirmative. Sub-question a serves to clarify whether it can also be argued against the inadmissibility of a new asylum procedure that recognised refugees in the Member State where they were recognised as refugees (here: Italy) do not receive any subsistence benefits at all, or those benefits which they do receive are very limited compared to those available in other Member States, so they are to this extent not treated any differently from nationals of that Member State. The purpose is to ascertain whether recognised refugees are entitled to a minimum standard that goes beyond formal equal treatment with that Member State's own nationals.

37 Sub-question b serves to clarify whether it can also be argued against the inadmissibility of a new asylum procedure that recognised refugees in the Member State where they were recognised as refugees (here: Italy) are, admittedly, granted the rights provided for under article 20 et seqq. of Directive 2011/95/EU but in fact have greater difficulty in accessing the related benefits or benefits of family or social networks which replace or supplement state benefits. The Court of Appeal found that, due to the transposition of Directive 2011/95/EU in Italy, it can in principle be assumed that recognised refugees enjoy the rights set forth in article 20 to 35 of this Directive in Italy. The Court of Appeal supported this assessment based on the legal situation by factual findings compiled by the Federal Foreign Office (Auswärtiges Amt), the Swiss Refugee Council (Schweizerische Flüchtlingshilfe) and other non-governmental organisations. On this basis, the Court of Appeal concluded that refugees have to the same extent limited - however, not infringing article 3 ECHR - access to public welfare and private benefits as Italian nationals. The Court of Appeal found the same with regard to access to healthcare. As regards the provision of recognised refugees with living space, the Court of Appeal found that sufficient public or charitable (sometimes locally overcrowded) accommodation is available throughout Italy. At the same time, the Court of Appeal concedes that access to the labour market is difficult. Many refugees, especially young men, competing with unemployed Italians on the labour market were often only able to find jobs as seasonal workers in agriculture. In its overall assessment, the Court of Appeal finds that recognised refugees in Italy are at least able to cover their basic needs. If this was not immediately or fully possible, they would be able to obtain support from charitable organisations. However, the Court's findings also suggest that problems do in fact exist when it comes to exercising the rights set forth in article 20 et seqq. of Directive 2011/95/EU, for instance, with regard to access to the labour market. However, consistent with the Court's legal point of view, it was not examined in more detail to what extent refugees have difficulty in obtaining benefits of family or social networks which replace or supplement state benefits. The same applies to the question regarding the provision of integration facilities pursuant to article 34 of Directive 2011/95/EU. The Court of Justice is therefore requested to clarify whether these aspects are relevant for answering the question of commencing a new asylum procedure.

38 ee) Clarification is also necessary with regard to the consequences of the failure to interview the foreign national regarding the intended inadmissibility decision by the Federal Office which is required under article 12 (1) first sentence of Directive 2005/85/EC if the applicant has an opportunity in the judicial proceedings to set out all the circumstances mitigating against a decision of inadmissibility and, even having regard to those submissions, no other decision can be taken in the case. Referred question 3 submitted to the Court of Justice serves to clarify this question.

39 In these proceedings, the claimant applied for asylum in Germany in September 2011. In the record of the asylum application signed by him, he disclosed personal information and referred to the application as a first asylum application. Due to changes in his fingertips, Eurodac requests for comparison initially did not deliver a hit. However, in a personal visit to the Federal Office on 1 December 2011, the claimant expressly denied the question as to whether he had ever been to another European country before. He stated that he had worked as a soldier in Eritrea. His fingerprints taken in June 2012 showed that he had already applied for asylum in Italy in 2009. Information provided by the Italian Ministry of the Interior of January 2013 and February 2013 further showed that the claimant was granted refugee status in Italy, albeit under a different name and date of birth, and that a residence permit valid until 5 February 2015 was issued to him. On 18 February 2013, the Federal Office issued the order contested here without hearing the claimant beforehand with regard to the facts communicated by the Italian Ministry of the Interior and the planned rejection of his asylum application.

40 The procedure chosen by the Federal Office breached the German asylum procedure law that was already in force at that time. Pursuant to section 24 (1) third sentence AsylG, the Federal Office is obliged to hear the foreign national pursuant to section 25 AsylG (see nowadays supplementary section 29 (2) AsylG). Such a hearing did not take place, and the claimant was not heard with regard to the reasons for his persecution or his stay in Italy and the recognition as a refugee granted there. Although a hearing can be dispensed with pursuant to section 24 (1) fourth sentence AsylG if the foreign national "claims to have entered the federal territory from a safe third country (section 26a)". However, the requirements for an application of this exception are not fulfilled because the claimant did not make such statements; instead, the Federal Office acquired its knowledge in this respect via an Eurodac hit and information from the Italian authorities following this.

41 The procedure chosen by the Federal Office also breached EU law because article 12 of Directive 2005/85/EC requires a personal interview with the applicant for asylum. None of the exceptions as contemplated in article 12 (2) of Directive 2005/85/EC existed. Although a meeting with the claimant already took place on 22 September 2011 where he was given assistance in completing the application within the meaning of article 12 (2) (b) of Directive 2005/85/EC. The completed form also included all details required pursuant to article 4 (2) of Directive 2004/83/EC, however, with the exception of the reasons for his asylum application. As information on this was missing, it was not permissible to omit the interview pursuant to article 12 (2) (b) of Directive 2005/85/EC. The provision of article 12 (4) of Directive 2005/85/EC did not release the Federal Office from the obligation to conduct the personal interview either. Pursuant to this provision, the fact that no personal interview pursuant to article 12 of Directive 2005/85/EC took place does not prevent the asylum authority from taking a decision on the application for asylum. The referring court interprets the provision in such a manner that it applies solely to cases where a personal interview may be omitted pursuant to the provisions of Directive 2005/85/EC (for instance, pursuant to article 12 (2) and (3) of Directive 2005/85/EC). (…) Exceptions of this kind from the obligation to conduct a personal interview do not exist here. This also holds true when articles 14 and 34 (1) of Directive 2013/32/EU are applied.

42 Clarification is necessary as to whether the exceptions provided by article 12 (2) and (3) of Directive 2005/85/EC and/or by article 14 (2) of Directive 2013/32/EU are exhaustive or whether EU law permits, based on the Member States' procedural autonomy, further exceptions and remedies expressly permitted under national law. National law classifies a defect due to failure to hear the applicant as irrelevant pursuant to section 46 VwVfG where it is evident that the defect has not influenced the decision on the matter. This is the case here because the inadmissibility decision pursuant to section 29 (1) no. 2 AsylG does not provide for discretionary freedom. In cases like this, a defect due to failure to hear the applicant cannot have an ultimate effect because the Federal Office and afterwards the administrative courts have a duty to investigate the facts and are therefore obliged to clarify all constituent elements of the provision on an ex officio basis. This also applies to unwritten requirements, if any, which can, for instance, result from the answers to referred questions 1 and 2 for reasons of EU law (...). However, a chamber of the Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) considered it to be necessary to clarify for the scope of application of the Dublin III Regulation, which is not relevant here, whether the application of section 46 VwVfG is limited by the fact that article 5 (2) of the Dublin III Regulation - similar to article 12 (2) and (3) of Directive 2005/85/EC and articles 14 (2) and 34 (1) of Directive 2013/32/EU - defines case groups where a personal interview (hearing) can be dispensed with if this constitutes a special and, in this respect, exhaustive regulation of the proceedings (BVerfG, chamber decision of 17 January 2017 - 2 BvR 2013/16 - para. 20).

43 Although the Court of Justice already addressed possible measures to remedy defects due to failure to hear the applicant, it did not do so with regard to inadmissibility decisions as contemplated in article 25 (2) (a) of Directive 2005/85/EC or article 33 (2) (a) of Directive 2013/32/EU. In the case of a defect as regards public participation within the scope of the environmental impact assessment, for instance, the Court of Justice found that it constitutes a breach of article 11 of Directive 2011/92/EU, in so far as section 46 VwVfG places the burden of proof on the claimant being a "member of the public concerned" that there is a causal link between the procedural defect which the claimant alleges and the outcome of the administrative decision (CJEU, judgment of 15 October 2015 - C-137/14 [ECLI:EU:C:2015:683], European Commission/Federal Republic of Germany - para. 62). According to the case-law of the Court of Justice, an impairment of a right, for the purposes of article 11 of Directive 2011/92 cannot be excluded unless the court of law or body covered by that article is in a position to take the view, without in any way making the burden of proof of causality fall on the applicant, but by relying, where appropriate, on the evidence provided by the developer or the competent authorities and, more generally, the entire file present to that court or body, that the contested decision would not have been different without the procedural defect invoked by that applicant (CJEU, judgment of 15 October 2015 - C-137/14 - para. 60).

44 On the basis of the Court of Justice's case-law as described in the foregoing, it can be noted with regard to the defect due to failure to hear the applicant pursuant to article 12 of Directive 2005/85/EC/article 14 in conjunction with article 34 of Directive 2013/32/EU that this defect is fully compensated for under national law in the court proceedings. In his application initiating proceedings, the claimant explained in length the problems which he faced in Italy in his search for a flat which he was unable to rent due to a lack of money. He further explained in detail which difficulties he faced in his search for a job so that he was forced to beg or obtain food from Caritas. In view of the hopelessness of his situation, he decided to move to Germany. The Administrative Court then decided that the deportation ordered was not to be carried out, and evaluated on an ex-officio basis information from the Federal Foreign Office and the "Associazione per gli Studi Giuridici sull'Immigrazione" (ASGI) regarding the rights of a recognised refugee in Italy with a view to residence, freedom of movement, as well as access to work and medical care. This was carried out in conformity with section 86 (1) VwGO pursuant to which the court investigated the facts ex officio. Although the parties shall be consulted in doing so, the court - unlike in many other EU Member States - shall not be bound to the submissions and to the application to take evidence filed by the parties. The Administrative Court then ultimately dismissed the action on the grounds of its own evaluation of facts and evidence because it - also considering the claimant's submissions and specific circumstances - concluded that as a single young man he would be able to gradually settle down in Italy and that, at least at the beginning, he would be able to resort to support from charitable organisations. The Court of Appeal also performed ex officio investigations by evaluating different sources of information in order to determine whether the claimant would be at risk of treatment infringing article 3 ECHR after his deportation to Italy. On pages 20 to 26 of its judgment, the Court of Appeal explained in detail why, according to its evaluation of facts and evidence, this is not the case and referred to the information from the Federal Foreign Office, the Swiss Refugee Council and other non-governmental organisations. The claimant's specific situation as evident from the established facts and his submissions was also taken into consideration. The burden of proof was not placed on the claimant that there was a causal link between the claimed defect due to failure to hear the applicant and the outcome of the administrative decision. Instead, referring to the above-quoted judgment of the Court of Justice of 15 October 2015, the Court of Appeal shifted the burden of proof to the public authority (printed judgment p. 11). It confirmed the causal link since it follows from legal reasons. Although it is not yet finally decided whether an inadmissibility decision pursuant to section 29 (1) no. 2 AsylG has, beyond the foreign country's recognition as a refugee, further unwritten requirements for reasons deriving from EU law and, if so, what these requirements are (see, for instance, referred questions 1 and 2). Should this be the case, and should it be impossible for the Senate to establish the existence of these requirements on the basis of the factual findings made by the Court of Appeal - which also include the claimant's submission during the court proceedings - it would not be possible to re-interpret the Federal Office's decision not to perform asylum procedures because the claimant entered Germany from a safe third country as a decision pursuant to section 29 (1) no. 2 AsylG. The decision would then have to be annulled due to unlawfulness on substantive grounds.

45 Even under normal conditions where no re-interpretation is concerned, a defect due to failure to hear the applicant does not have any relevance of its own in German law of administrative court procedure in the case of non-discretionary decisions. As a result of the obligation of the public authority to conduct ex officio investigations and the comprehensive verification by the administrative courts, which are also obliged to conduct ex officio investigations and which also grant the claimant the right to be heard in court, such an administrative decision will ultimately turn out to be either lawful or unlawful on substantive grounds, without the procedural defect attaining any relevance in its own right. The Court of Justice will have to assess whether this comprehensive examination by the court justifies the classification of the defect due to failure to hear the applicant as irrelevant in as far as the public authority cannot exercise any discretion in its decision, as is the case here.

46 One aspect that could also have a role to play in the assessment of the legal situation is the question regarding which restrictions under EU law apply to article 33 (2) (a) of Directive 2013/32/EU and/or the preceding provision in article 25 (2) (a) of Directive 2005/85/EC and how the Court of Justice answers referred questions 1 and 2. If it is a requirement for returning a recognised refugee to the Member State where the refugee was recognised that, apart from the absence of reasons according to article 4 CFR/article 3 ECHR, access to the rights laid down in article 20 et seqq. of Directive 2011/95/EU and to the related benefits including such family or social networks may not in fact be hindered, this would expand the scope of assessment by public authorities and courts. The Court of Justice could attach a higher level of relevance to failure to hear an applicant on the basis of such an extended scope of assessment.

47 The referring court requests the Court of Justice, when answering referred question 3, to specify its jurisprudence as formulated in its judgment of 10 September 2013 concerning the interpretation of the Return Directive 2008/115/EC (C-383/13 PPU [ECLI:EU:C:2013:533]). The case decided concerned the extension of the detention pending deportation of an illegally-staying third-country national without the party concerned being heard beforehand. The Court of Justice noted that, according to EU law, an infringement of the rights of the defence, in particular the right to be heard, results in annulment of the administrative decision only if, had it not been for such an irregularity, the outcome of the procedure might have been different (para. 38). The Court of Justice points out that not every breach of the right to be heard will systematically render the decision unlawful, for the purposes of article 15 (2) fourth subparagraph of Directive 2008/115/EC (para. 39). More precisely, the Court of Justice notes that to make such a finding of unlawfulness, the national court must assess whether, in light of the factual and legal circumstances of the case, the outcome of the administrative procedure at issue could have been different if the third-country nationals in question had been able to put forward information which might show that their detention should be brought to an end (para. 40). When applied to the case in question here, this would imply an obligation on the part of the national courts to examine whether the administrative procedure could have led to a different outcome on the basis of the refugee's submissions regarding the living conditions in Italy. This can be denied for the general living conditions because these must be examined on an ex officio basis, but not for individual circumstances - such as illness of the refugee - which the Federal Office does not know unless communicated by the refugee. In this respect too, the Court of Justice is requested to answer the question as to whether a defect of the hearing procedure before the public authority can be remedied in subsequent court proceedings if all facts submitted by the claimant as well as further facts which are relevant for the decision are explored and considered on an ex officio basis without leading to a different result.

48 3. The referring court requests that the Court of Justice process the case in the expedited procedure under article 105 of the Rules of Procedure of the Court of Justice because the nature of the case requires that it be dealt with within a short time. The referred questions are related to the secondary movement of asylum seekers which is undesired under EU law and where Germany has been among the preferred destinations for quite some time. It must be expected that the Federal Office and the administrative courts currently have several thousand cases to handle where (at least in part) the questions raised must be answered and which cannot be finally decided in view of this request for a preliminary ruling.

1 1. After hearing the parties, the decision of 27 June 2017 to suspend the proceedings and to request a preliminary ruling must be set aside in as far as it concerns questions 1 and 2 directed at the relevance of the living conditions for recognised beneficiaries of protection in other Member States in the case of an inadmissibility decision under article 33 (2) (a) of Directive 2013/32/EU and/or the predecessor provision in article 25 (2) (a) of Directive 2005/85/EC. These questions have been answered by the judgment of the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) of 19 March 2019 in Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17 ([ECLI:EU:C:2019:219], Ibrahim et al.).

2 2. However, based on the reasons stated it its decision of 27 June 2017 to request a preliminary ruling (para. 38 to 47), the Court still sees a need for clarification with regard to question 3 as to whether article 14 (1) first sentence of Directive 2013/32/EU or the rule in article 12 (1) first sentence of Directive 2005/85/EC that preceded it precludes the application of a national provision under which the failure to conduct a personal interview with the applicant in the case where the determining authority rejects an asylum application as inadmissible, in implementation of the power under article 33 (2) (a) of Directive 2013/32/EU or the rule in article 25 (2) (a) of Directive 2005/85/EC that preceded it, does not result in that decision being annulled by reason of that failure if the applicant has an opportunity in the judicial proceedings to set out all the circumstances mitigating against a decision of inadmissibility and, even having regard to those submissions, no other decision can be taken in the case. This question is not addressed in the judgment of the Court of Justice of 19 March 2019 in Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17 to which its request for information of 26 March 2019 refers. In particular, the question raised by the Senate, i.e. whether in cases where the asylum authority failed to hear the person concerned regarding the grounds of inadmissibility, providing an opportunity to submit a written opinion in the judicial proceedings is also sufficient to remedy the failure to hear the applicant, remains unanswered.

The claimant, who was granted refugee status in Italy and who was issued a travel document for refugees valid until February 2015 challenges the determination by means of a notice of 18 February 2013 by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office), which was made without any prior personal interview, that he was not entitled to asylum because he entered Germany from a safe third country.

The Administrative Court (Verwaltungsgericht) dismissed the action filed against this notice. In its judgment, the Higher Administrative Court (Oberverwaltungsgericht) annulled the deportation order to Italy that was concurrently issued by the Federal Office, but with regard to all other aspects dismissed the appeal. In the view of the Court, the declaration was correct since the claimant entered the federal territory from a safe third country within the meaning of article 16a (2) first sentence of the Basic Law (GG, Grundgesetz). In Italy, the claimant was not at risk of inhuman or degrading treatment within the meaning of article 3 of the European Convention on Human Rights (ECHR).

Based on the claimant's appeal on points of law, the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) submitted a request for a preliminary ruling to the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) on the question, among other things, as to whether the fact that the failure to conduct a personal interview is irrelevant is compatible with Directive 2013/32/EU. Upon this request, the Court of Justice held that articles 14 and 34 of Directive 2013/32/EU must be interpreted as precluding national legislation under which failure to comply with the obligation to give an applicant for international protection the opportunity of a personal interview before the adoption of an inadmissibility decision on the basis of article 33 (2) (a) of Directive 2013/32/EU does not lead to that decision being annulled and the case being remitted to the asylum authority, unless that legislation allows the applicant, in the judicial proceedings against that decision, to set out all the circumstances mitigating against a decision of inadmissibility in a personal interview which complies with the applicable conditions and fundamental guarantees listed in article 15 of Directive 2013/32/EU and, even having regard to those submissions, no other decision can be taken.

The claimant's appeal on points of law was successful. The Federal Administrative Court amended the judgments of the lower instances and annulled the contested declaration of the Federal Office.

7 (...) The assumption of the Higher Administrative Court that the Federal Office's decision based on the application of the national provisions on third countries was lawful violates section 29 (1) no. 3 of the Asylum Act (AsylG, Asylgesetz). The appeal judgment does not prove to be correct within the meaning of section 144 (4) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) for other reasons either since a re-interpretation of this decision as an inadmissibility decision pursuant to section 29 (1) no. 2 AsylG is not possible since the procedural requirements stipulated in section 29 (2) first sentence AsylG are not met. The action is admissible (1.) and well-founded (2.).

8 1. The action, which is only directed against the declaration that the claimant is not entitled to asylum on account of his entry from a safe third country, is admissible as an action for annulment within the meaning of section 42 (1) first alternative VwGO. According to the applicable law, this declaration is to be regarded as a decision on the inadmissibility of the asylum application under section 29 (1) no. 3 AsylG, which can only be challenged by means of an action for annulment (see BVerwG, judgment of 20 May 2020 - 1 C 34.19 [ECLI:DE:BVerwG:2020:200520U1C34.19.0] - (...) para. 10 with further references).

9 Also, the claimant has the necessary legal interest in bringing proceedings. Regardless of the question as to whether the action could improve his legal position in the event that the responsibility for issuing the travel document for refugees has been transferred to the Federal Republic of Germany, as asserted by him, a question that does not need to be clarified in this context, he has a recognised legal interest in bringing proceedings simply because it is neither obvious nor undisputed whether the requirements for such a transfer of responsibility are met.

10 2. The action is also well-founded. The decision justified by the Federal Office with the application of the national provisions on third countries is unlawful because it is not covered by section 29 (1) no. 3 AsylG which is the legal basis currently applicable to this decision (2.1). Nor may it be re-interpreted as an inadmissibility decision under section 29 (1) no. 2 AsylG since the necessary procedural requirements are not met (2.2). However, a potential transfer of responsibility for issuing the travel document for refugees does not prevent such an inadmissibility decision (2.3).

12 2.1 The declaration that the claimant has no right of asylum due to his entry from a safe third country, which the Federal Office still bases on the (national) third-country provision as contained in § 26a AsylG, is unlawful. According to currently applicable law, it must be reviewed based on the provision in section 29 (1) no. 3 (in conjunction with section 26a) AsylG that entered into force during the appeal proceedings on points of fact and law. This is because, at least since the insertion of this provision, an application for asylum with regard to a safe third country can now only be rejected by way of an inadmissibility decision with due regard for the requirements stipulated therein. (...)

13 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 AsylG. These requirements are not met here because, according to the required interpretation in conformity with EU law, only a country that is not a Member State of the European Union can be a safe third country in this sense (BVerwG, judgments of 21 April 2020 - 1 C 4.19 - (...) para. 18 et seqq. and of 17 June 2020 - 1 C 35.19 - (...) para. 12, each with further references).

14 2.2 The appeal judgment on points of fact and law also does not prove to be correct for other reasons (section 144 (4) VwGO). Admittedly, pursuant to section 47 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) an erroneous and therefore unlawful administrative act may be re-interpreted into a different administrative act (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 (b); however, an inadmissibility decision under section 29 (1) no. 2 AsylG could not have been lawfully issued by the Federal Office using the procedures in fact adopted (c).

15 a) An unlawful inadmissibility decision shall not be subject to annulment in court proceedings only, if it can be replaced by another - lawful - regulation by way of re-interpretation in accordance with section 47 VwVfG (see BVerwG, judgments of 21 April 2020 - 1 C 4.19 - (...) para 24 et seqq. with further references and of 17 June 2020 - 1 C 35.19 - (...) para 19). Here, as a legal basis for an inadmissibility decision, only section 29 (1) no. 2 AsylG can come into consideration. According to this provision, an application for asylum is inadmissible if another EU Member State has already granted the foreign national international protection.

16 b) 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 (see BVerwG, judgments of 21 April 2020 - 1 C 4.19 - (...) para. 29 et seqq. and of 17 June 2020 - 1 C 35.19 - (...) para. 16 et seq. (...)). (...)

17 c) A corresponding re-interpretation as an inadmissibility decision under section 29 (1) no. 2 AsylG is precluded by the fact that the procedural requirements that had to be observed under section 47 (1) VwVfG at the End for issuing an inadmissibility decision under section 29 (1) no. 2 AsylG are not met (aa) and this procedural defect which has also not been remedied in the meantime pursuant to section 45 (1) no. 3 VwVfG in conjunction with (2) VwVfG (bb) is not irrelevant under section 46 VwVfG (cc).

18 aa) Pursuant to article 14 (1) first sentence of Directive 2013/32/EU, the applicant shall be given the opportunity of a personal interview on his or her application for international protection with a person competent under national law to conduct such an interview. According to article 34 (1) of Directive 2013/32/EU, Member States shall allow applicants to present their views with regard to the application of the grounds referred to in article 33 of Directive 2013/32/EU in their particular circumstances before the asylum authority decides on the admissibility of an application for international protection. To that end, Member States are to conduct a personal interview on the admissibility of the application. In implementation of that regulation, section 29 (2) first sentence AsylG provides that the Federal Office interviews the foreign national in person with regard to the reasons stipulated in section 29 (1) no. 1 (b) to no. 4 AsylG prior to deciding on the admissibility of an asylum application (BVerwG, judgment of 21 April 2020 - 1 C 4.19 (...) para. 32). Contrary to section 29 (2) first sentence AsylG, the claimant was not interviewed in person in the administrative procedure concerning the issuance of an inadmissibility decision under section 29 (1) no. 2 AsylG.

19 bb) This procedural defect was not remedied pursuant to section 45 (1) no. 3 in conjunction with (2) VwVfG in the court asylum proceedings until the conclusion of the proceedings before the court responsible for finding the facts. According to national law, such a defect may only be remedied - also during court proceedings - by the authority itself; it must conduct the interview subsequently and critically reconsider its original decision in the light of the results of this interview (see, for example, BVerwG, judgment of 17 December 2015 - 7 C 5.14 [ECLI:DE:BVerwG:2015:171215U7C5.14.0] - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 153, 367 para. 17 with further references). It has neither been established by the Court of Appeal nor asserted by the defendant that his had occurred. The failure to comply with the obligation to conduct a personal interview cannot be compensated by the opportunity to set out in writing reasons for protection in the court asylum proceedings or by the obligation on the asylum authority and on the court to investigate all of the relevant facts ex officio (CJEU, judgment of 16 July 2020 - C-517/17 [ECLI:EU:C:2020:579], Addis - para. 71).

20 cc) The failure to conduct a personal interview with the claimant is not irrelevant under section 46 VwVfG either. Even though the provision is applicable in principle ((1)) and its requirements are met ((2)); its application in the present procedure was not compatible with EU law ((3)).

21 (1) Re-interpretation serves to render an additional administrative procedure unnecessary for reasons of procedural effectiveness and to ensure the continued existence of the erroneous administrative act (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 7/910 p. 66). For this purpose, it legitimises the changed regulatory content of the erroneous administrative act. In light of the purpose of section 47 VwVfG to achieve an effective procedure, it is consistent that the fact that the procedural requirement that was not observed is irrelevant leads to the re-interpreted administrative act no longer being able to be annulled (...).

22 (2) According to section 46 VwVfG, an application for annulment of an administrative act which is not invalid under section 44 VwVfG cannot be made solely on the ground that the act came into being through the infringement of regulations governing procedure, form or local competence, where it is evident that the infringement has not influenced the decision on the matter. It is not possible to establish this condition - obvious lack of a causal link between the procedural defect and the decision on the matter - in the present case based on the interpretation of the relevant requirements under EU law by the Court of Justice.

23 (a) In principle, it must be assumed under national law in non-discretionary decisions, such as the inadmissibility decision under section 29 (1) no. 2 AsylG, that a defect due to failure to conduct a personal interview with the applicant cannot have an impact on the final outcome (see BVerwG, decision to suspend the proceedings and to request a preliminary ruling of 27 June 2017 - 1 C 26.16 - (...) para. 42). However, one may not deny the relevance of the personal interview by the authority required by Directive 2013/32/EU for the final outcome, when implementing the preliminary ruling of the Court of Justice obtained by the Senate (...). In detail, the Court of Justice gave the following specific reasons for this:

24 Under EU law, one may only make use of an exclusion of the right to annulment under national law due to irrelevance only if and insofar as this does not render the exercise of the rights awarded by the EU legal order, namely the right to a personal interview in the present case, impossible or excessively difficult in practice (principle of effectiveness) (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 57).

25 While there is no conflict between section 46 VwVfG and the principle of equivalence since it also applies in comparable cases that have to be assessed based on national law alone (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 58), the fundamental importance that the issuer of the Directive attributed both to the personal interview by the asylum authority equipped with special resources and expert personnel and to ensuring compliance with the specific conditions and guarantees of article 15 (2) and (3) of Directive 2013/32/EU for a fair asylum procedure according to the rule of law in this regard, must be noted when assessing the compatibility of section 46 VwVfG with the principle of effectiveness (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 59, 61 and 64 et seqq.). It would be incompatible with the effectiveness of articles 14, 15 and 34 of Directive 2013/32/EU, if a decision, which the asylum authority adopted without complying with the obligation to give the foreign national the opportunity of a personal interview regarding his or her application for international protection, would be upheld in the court asylum proceedings without the administrative court itself conducting an interview with the applicant in accordance with the conditions and fundamental guarantees applicable in the individual case (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 68). The application of section 46 VwVfG is therefore only compatible with articles 14 and 34 of Directive 2013/32/EU if the foreign national had an opportunity in the court asylum proceedings to set out all the circumstances mitigating against a decision of inadmissibility in a personal interview which complies with the applicable conditions and fundamental guarantees listed in article 15 of Directive 2013/32/EU and, even having regard to those submissions, no other decision can be taken in the case (CJEU, judgment of 16 July 202 - C-517/17, Addis - para. 74). If the court considers that the foreign national was not or cannot be guaranteed that opportunity in the court asylum proceedings, it must annul the inadmissibility decision (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 73). The questions as to which of the conditions and fundamental guarantees in article 15 Directive 2013/32/EU must be applied to a foreign national (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 67 et seq.) and whether they were observed, must be answered taking all circumstances of the individual case into account.

26 (b) It is at the broad procedural discretion of the court responsible for finding the facts that is only subject to limited judicial review, whether it obliges the Federal Office to interview the claimant in the course of the court asylum proceedings in person, to take a decision on the question whether the challenged decision will be maintained and to introduce this decision into the proceedings or whether it conducts the personal interview of the claimant itself or whether it annuls the challenged notice of the Federal Office thereby giving the Federal Office the opportunity to take a new decision on the application for asylum after a personal interview in the course of the administrative procedure. When exercising its discretion in accordance with legal obligation, the court has to consider both the concentration and acceleration principle applicable in the asylum procedure as well as effective proceedings while at the same time taking account of the length of the procedure to date as well as any expected increased need to clarify the facts of the case.

27 If the court exercises its discretion such that it conducts the personal interview of the claimant itself, it has to conduct this interview in particular in accordance with article 15 (2) of Directive 2013/32/EU under conditions that ensure appropriate confidentiality both in fact and also legally. Appropriate confidentiality is ensured if the personal interview is performed either within the framework of a meeting to discuss the factual and legal situation of the case prior to the oral hearing within the meaning of section 87 (1) second sentence no. 1 VwGO or as part of the taking of evidence prior to the oral hearing if the participating claimant is questioned by the commissioned judge pursuant to section 96 (2) VwGO, (...). The public is not admitted to these sessions since the principle of public access to proceedings stipulated in section 55 VwGO in conjunction with section 169 (1) first sentence of the Courts Constitution Act (GVG, Gerichtsverfassungsgesetz) only applies to the oral hearing before the adjudicating court (BVerwG, decision of 8 September 1988 - 9 CB 38.88 - (...)). However, appropriate confidentiality is ensured also if the court excludes the public from the oral hearing. Section 55 VwGO in conjunction with section 171b (1) first sentence GVG places this exclusion at the discretion of the court in as far as it is foreseeable in the actual case (Federal Court of Justice (BGH, Bundesgerichtshof) judgment of 18 September 1981 - 2 StR 370/81 - (...)) that circumstances from the private sphere of a party to the proceedings are mentioned, the public discussion of which would violate legitimate interests. A legitimate confidentiality interest must be acknowledged, for instance, in the case of matters from the private sphere that are not readily accessible by third parties and the public discussion of which would violate overriding legitimate interests of the claimant (see BGH, judgment of 18 September 1981 - 2 StR 370/81 - (...)). This include especially family, relationships and sexual life, health status as well as ideology, religious and political views, i.e. circumstances that are not readily accessible to an uninvolved third party and deserve protection from outsiders gaining insight (...). Excluding the public is not possible under section 55 VwGO in conjunction with section 171b (1) second sentence GVG if there is an overriding interest in public discussion of these circumstances. The fundamental importance assigned to the confidentiality of the personal interview (CJEU, judgment of 16 July 2020 - C-517/17, Addis - para. 65 et seq.) is usually justification for public control of the judiciary as a protected interest stepping back (BVerwG, decision of 6 March 2019 - 6 B 135.18 [ECLI:DE:BVerwG:2019:060319B6B135.18.0] - (...) para. 50) for the time it takes to remedy the failure to conduct the personal interview in court asylum proceedings. According to section 55 VwGO in conjunction with section 171b (3) first sentence GVG, the public must be excluded if the requirements of section 171b (1) GVG are met and the claimant applies for such exclusion. However, the claimant is free to voluntarily, expressly and unequivocally waive the confidentiality requirement or to object to the exclusion of the public ordered by the court in accordance with section 55 VwGO in conjunction with section 171b (4) GVG. The fact of a separate personal interview and the circumstance that it was conducted taking the applicable conditions and fundamental guarantees of article 15 of Directive 2013/32/EU into account, has to be expressly recorded in the minutes of the hearing or session.

28 (c) In the case in dispute, the requirements presented above, under which section 46 VwVfG can only be applied, are not met.

29 It is not evident from the minutes of the public hearings of the Administrative Court of 15 April 2013 and of the Higher Administrative Court of 19 May 2019 that the claimant was given the opportunity in the court asylum proceedings to set out all the circumstances mitigating against the decision in a personal interview which complies with the applicable conditions and fundamental guarantees listed in article 15 of Directive 2013/32/EU. The mere possibility, one that can be assumed, for the claimant who was present in each of the oral hearings to rise to speak on his own initiative does not meet the - more far-reaching - requirements concerning a personal interview nor does the fact that no listeners were present ensure the confidentiality of such interview. Therefore, the challenged decision must be annulled and the Federal Office must be given the opportunity to decide on the asylum application of the claimant again - after an interview that is now compatible with EU law.

30 2.3 From a substantive point of view, the Senate additionally points out that a transfer of responsibility for issuing the travel document for refugees to the Federal Republic of Germany based on article 2 of the European Agreement on Transfer of Responsibility for Refugees (Europäisches Übereinkommen über den Übergang der Verantwortung für Flüchtlinge) of 16 October 1980 <European Treaty Series no. 107, Federal Law Gazette (BGBl., Bundesgesetzblatt) 1994 II p. 2645> that specifies the transfer of responsibility provided for in article 28 in conjunction with section 11 of the Annex to the Convention relating to the Status of Refugees of 28 July 1951 (hereinafter Geneva Refugee Convention) <BGBl. 1953 II p. 559 and 1954 II p. 619> - as asserted by the claimant and disputed by the defendant - does not prevent a rejection of the asylum application based on section 29 (1) no. 2 AsylG. Rather, the lawfulness of an inadmissibility decision under section 29 (1) no. 2 AsylG would remain unaffected by a corresponding transfer of responsibility.

31 Section 29 (1) no. 2 AsylG is based on the consideration that it is not necessary to decide on the merits of the asylum application filed in the federal territory again since the responsible Member State is granting protection. Like article 33 (2) (a) of Directive 2013/32/EU, the provision is based on the assumption that the other Member State continues to be the Member State responsible for the refugee or will be the Member State responsible for the refugee again and affords the refugee protection in the exercise of its responsibility. To use this assumption as the starting point would not be justified only if it is proven that the treatment of persons entitled to international protection in the other Member State exceptionally fails to comply with the requirements of the Charter of Fundamental Rights of the European Union (CFR) (CJEU, decision of 13 November 2019 - C-540/17 et al. [ECLI:EU:C:2019:964], Hamed, Omar - para. 41). If there is a serious risk of the refugee being subjected to an inhuman or degrading treatment breaching article 4 CFR when being transferred to the other Member State, another asylum procedure must be conducted in the federal territory in order to ensure that the foreign national is able to make use of his or her refugee status and the rights associated with this status in the federal territory as well (CJEU, decision of 13 November 2019 - C-540/17 et al., Hamed, Omar - para. 42).

32 Contrary to the cases where there is an imminent risk in the sense of article 4 CFR, it is not necessary to conduct another asylum procedure in the federal territory in cases where there is a transfer of responsibility for the refugee under the European Agreement on Transfer of Responsibility for Refugees. It is true that the Geneva Refugee Convention essentially grants refugees a national refugee status and not an international refugee status that is effective in all state parties to the Convention (BVerwG, judgment of 29 April 1971 - 1 C 42.67 - BVerwGE 38, 87 <89 et seq.>) and a state is neither bound under international law by the decision of another state to grant refugee status (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 14 November 1979 - 1 BvR 654/79 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts 52, 391 <404>) nor under EU law (...), which is why the Federal Republic of Germany only attributes legal effects in the federal territory to such a decision to a limited extent (see section 60 (1) second sentence in conjunction with the first sentence of the Residence Act (AufenthG, Aufenthaltsgesetz)). However, with the transfer of responsibility for issuing the travel document the responsibility for the refugee also passes from the state that granted the refugee status to the state where the refugee has lawfully settled, such that the decision of the initial state to grant refugee status continues to be effective in the other state (BT-Drs. 13/4948 p. 11). According to section 60 (1) third sentence AufenthG, which exempts the cases of section 60 (1) second sentence AufenthG from an asylum procedure, the refugee is not entitled to be granted refugee status again. In principle, an application filed regardless of this is - in compatibility with article 33 (2) (a) Directive 2013/32/EU - inadmissible pursuant to section 29 (1) no. 2 AsylG (BVerwG, judgment of 17 June 2014 - 10 C 7.13 - BVerwGE 150, 29 para. 29).