Poland - Ruling of the Supreme Administrative Court from 28 June 2016 II OSK 1346/16 submitting the request for preliminary ruling to the CJEU and suspending the proceedings

Facts:

A third country national applied for a Polish visa on 24 December 2014 in Morocco. His wife and child live in Poland and are Polish nationals. In January 2015 the Polish Consulate refused issuing a visa to the applicant with the purpose of visiting his family. The applicant appealed this decision. Under Polish law the appeal against the Consulate’s decision refusing the issuance of a visa is examined by the same authority (otherwise known as a request to reconsider). The Consulate again refused to issue the visa, because  of doubts as to whether the applicant would leave Poland before the visa expires.

The applicant appealed to the Voivodeship Administrative Court in Warsaw. The Court dismissed the complaint, as under article 5 of the Law on Proceedings before Administrative Courts, the Administrative Courts are not competent in cases concerning visas issued by Consulates, excluding visas issued for family members of EU citizens. The applicant claimed that his rights codified in Articles 8, 13 and 14 of the ECHR had been infringed. As a third country national who was not a family member of an EU citizen in accordance with Polish legislation on EU citizens and their family members, the applicant was deprived of the right to an effective remedy before a court. The applicant does not have a right to submit a complaint to the Voivodeship Administrative Court, although he has a wife and a child in Poland, whilst family members of other EU nationals have such a possibility. Last but not least, the decision on the refusal of the visa interfered with his right to a family life.

Decision & reasoning:

In the Polish legal system there is a principle that the decision of the authority can be appealed to the authority of the second instance or can be reconsidered by the same authority. The decision issued after appeal or reconsideration can be appealed to the Administrative Court. In the present case judicial control is excluded under Article 5 of the Law on Proceedings before Administrative Courts. The appeal to the Voivodeship Administrative Court in Warsaw can be submitted only by the family member of EU nationals, as defined in the Law on entry, residence and leave of EU nationals and their family members. The applicant is a spouse of a Polish national and is not treated as the family member of an EU national under Polish law.

In the proceedings regarding the Consulate’s refusal to issue a visa (including a Schengen visa) there is a form of an appeal called a request to reconsider, which is examined by the same authority. After reconsidering the case, the Consulate issues a decision which is final and cannot be appealed to another administrative authority or Court.

The Visa Code envisages the right to appeal against a negative decision regarding issuing a visa, but does not precisely establish whether the appeal proceedings should take place before a court.

The Court has doubts concerning the interpretation of Article 32(3) of the Visa Code in relation to Article 47 of the Charter. The legal conditions which justify issuing a visa as defined in the Visa Code signify that it is an area covered by EU law. The provision concerned constitutes a part of an EU Regulation, that is the act of law which generally does not need implementing measures and is applied directly. This is why clarifying the doubts regarding its interpretation is even more important. In this context there is a question whether the national law excluding judicial control of the Consulate’s decisions is in accordance with Article 47 of the Charter.

This matter is related to the notion of procedural autonomy of Member States to the extent which concerns their obligation to guarantee fundamental rights as defined in EU law. The procedural autonomy of Member States is understood as the competence of the state to designate the courts having jurisdiction and to determine procedural conditions governing actions at law intended to ensure the protection of the rights which individuals acquire by virtue of EU law. This principle is limited by Article 47 of the Charter. While establishing the standard of protection, CJEU jurisprudence relating to effective judicial protection has to be taken into account. Effective judicial protection is the general principle of EU law, resulting from the constitutional traditions common to Member States and protected under Article 6 and 13 of the ECHR. The notion of an effective remedy has to be interpreted in line with the jurisprudence of the ECtHR regarding Article 13. The decision to refuse the issuance of a visa can infringe the right to respect for family life protected under Article 8 of the ECHR and Article 7 of the Charter. In the present case the applicant relies on these rights because his wife and child live in Poland. The exclusion of judicial control with regard to this decision, which can infringe the right protected under the ECHR, can result in an infringement of Article 13 of the ECHR.

Additionally the EU law principles of equivalence and effectiveness were mentioned in jurisprudence of the CJEU as limiting the principle of procedural autonomy. The principle of equivalence requires that the procedural conditions governing actions at law intended to ensure the rights which individuals acquire as a result of EU law cannot be less favourable than those relating to similar actions of a domestic nature. The principle of effectiveness requires that these conditions cannot make it impossible in practice to exercise the rights acquired as a result of EU law before national courts.

It is important to note that on 16 October 2014 the European Commission gave a reasoned opinion under Article 258 of the TFEU concerning Poland, the Czech Republic, Slovakia and Estonia which concerned guaranteeing an effective remedy in cases of refusal, withdrawal and invalidating a visa. The Commission stated that under the Visa Code the third country national has the right to an impartial examination of the visa application and that this right should be secured by an appeal procedure before a court. On 26 February 2015 the Commission issued an additional reasoned opinion regarding Poland.

The Court found that exclusion of judicial control with regard to the Consulate’s decisions refusing the issuance of a visa is doubtful in light of the obligation upon Member States to ensure an effective remedy against a decision refusing an individual a right acquired as a result of EU law. The appeal against a negative decision of the Consulate is done by reconsidering the case by the same authority in administrative proceedings, which is not contradictory. 

Outcome:

The Supreme Administrative Court, contrary to the Court of lower instance, agreed with the applicant that there is a need to clarify whether Article 32 (3) of the Visa Code interpreted in light of Recital 29 of the preamble and Article 47 of the Charter be understood as creating an obligation for a Member State to guarantee the right to an effective remedy before a court.

The Supreme Administrative Court suspended proceedings.

Subsequent proceedings:

Preliminary reference available here.

Observations/comments:

The request for a preliminary ruling concerns a right to an effective remedy before a court in cases concerning refusal of issuing a visa. However, the forthcoming judgement in this case will be relevant in asylum cases as it may give an answer as to whether the Voivodeship administrative court, responsible for judicial control of administrative decisions, is a court in accordance with EU law.

Judgement available here

The Helsinki Foundation for Human Rights is involved in this case.

For an in depth commentary on the right to an effective remedy in Poland please see: Karolina Rusiłowicz, The right to an effective remedy in asylum proceedings in Poland, EDAL.

Other sources:

Article 32(3) Visa Code