CJEU - Case C-403/16, El Hassani
| Country of Domestic Proceedings: | Poland |
| Country of applicant: | Morocco |
| Court name: | Court of Justice of the European Union (First Chamber) |
| Date of decision: | 13-12-2017 |
| Citation: | Case C-403/16 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
Article 47 CFR EU requires 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 that must, in particular, have jurisdiction to consider all the relevant issues.
It follows 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.
Facts:
Decision & reasoning:
First, the CJEU advanced that the EU legislature left to the Member States the task of deciding the nature and specific conditions of the remedies available to visa applicants. However, 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, which is for the referring court to assess.
Outcome:
Article 32(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, 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.
Subsequent proceedings:
Following the CJEU's judgment, the Regional Administrative Court in Warsaw handed down a decision on 20 September 2018 relating to visa refusals. The Court stated that the consul's final decision on visa refusal (given after reconsideration of the visa application, when the first refusal was issued on the form provided by the Visa Code) issued on the form does not allow for an assessment of the refusal reasons. Therefore, the Court stated that the consul's duty is to provide a justification in which such reasons should be indicated. The Court referred to Article 41 EU Charter of Fundamental Rights in this respect.
Observations/comments:
The ruling is largely in line with Advocate General Bobek’s Opinion.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| C-418/11, TEXDATA Software GmbH |
| C 317/08 to C 320/08 Alassini and Others |
| CJEU - Case C-239/14, Abdoulaye Amadou Tall |
| CJEU - C- 84/12, Rahmanian Koushkaki v Bundesrepublik Deutschland |
| CJEU - C-506/04, Wilson |
| CJEU - C-682/15, Berlioz Investment Fund |
| CJEU - C-3/16, Aquino |
Follower Cases:
Other sources:
Recital 29, Articles 1(1), 31(2) and 21(3) of the Visa Code.