CJEU: Member States responsible for deciding the specific conditions of the remedies available to visa applicants

The CJEU in its judgment from 13 December reaffirmed that EU legislature left Member States with the responsibility of deciding the nature and specific conditions of the remedies available to visa applicants.  At the same time though, it held that national procedural autonomy is subject to the principles of “equivalence” and “effectiveness” necessary to ensure judicial protection of an individual’s rights under EU law.

Firstly, the principle of equivalence requires “that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law.” As regards the principle of effectiveness, a national procedural rule, “must not be such as to render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order.”

The case at hand concerned a Moroccan national who submitted an application for a Schengen visa to the Consul of the Republic of Poland in Rabat in order to visit his wife and son who are Polish nationals. However, the application and the subsequent request for review were rejected on the ground of a lack of certainty as to Mr El Hassani’s intention to leave Poland before the visa expired.

According to Article 32(3) of the Visa Code, applicants who have been refused a visa have the right to an ‘appeal’ against that judgment, which must be introduced against the Member State that has taken the final decision on the application “in accordance with the national law of that Member State.”

Moreover, the Court reaffirmed that Article 47 of the Charter of Fundamental Rights of the European Union, provides that everyone is entitled to a hearing by an independent and impartial tribunal. This right also assumes “that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body.” It follows therefore that Article 47 CFR EU requires the Member States to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court.

On these grounds, the Court concluded that Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter, must be interpreted as meaning that “it requires Member States to provide for an appeal procedure against decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, guarantee a judicial appeal.”

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