In its judgment of 9 September 2021 (C-18/29), the Court of Justice of the EU ruled that it is incompatible with EU law to reject a subsequent application as inadmissible solely because the application was not filed within a certain period. This decision has a direct impact on the applicability of the 3-month time limit of section 51(3) VwVfG, which is enshrined in German asylum law and applies via section 71(1) Asylum Act.
EU law precludes a subsequent application for international protection from being rejected as inadmissible on the sole ground that it is based on circumstances which already existed during the procedure relating to the first application. In addition, the reopening of the first procedure in order to examine the substance of the subsequent application cannot be subject to the condition that that application has been lodged within a certain time limit.
In its judgment, the Court states that the examination of the substance of a subsequent application for international protection that is based on elements or findings which already existed before a final decision was taken on the first procedure may, in principle, and subject to observance of the basic principles and guarantees provided for by that directive, be carried out in the course of the reopening of the procedure relating to the first application.
However, such a reopening must not be subject to the condition that, as provided for by Austrian law, the subsequent application has been lodged within a certain time limit.