Key facts of the case:
‛Reference for a preliminary ruling — Regulation (EC) No 810/2009 — Article 25(1)(a) — Visa with limited territorial validity — Issuing of a visa on humanitarian grounds or because of international obligations — Concept of ‘international obligations’ — Charter of Fundamental Rights of the European Union — European Convention for the Protection of Human Rights and Fundamental Freedoms — Geneva Convention — Issuing of a visa where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights is established — No obligation’
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 1 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as meaning that an application for a visa with limited territorial validity made on humanitarian grounds by a third-country national, on the basis of Article 25 of the code, to the representation of the Member State of destination that is within the territory of a third country, with a view to lodging, immediately upon his or her arrival in that Member State, an application for international protection and, thereafter, to staying in that Member State for more than 90 days in a 180-day period, does not fall within the scope of that code but, as European Union law currently stands, solely within that of national law.
1) This request for a preliminary ruling concerns the interpretation of Article 25(1)(a) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243 p. 1), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1) (‘the Visa Code’), and of Articles 4 and 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
6) Article 4 of the Charter, headed ‘Prohibition of torture and inhuman or degrading treatment or punishment’, provides:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
7) Under Article 18 of the Charter, headed ‘Right to asylum’:
‘The right to asylum shall be guaranteed with due respect for the rules of the [Geneva Convention] and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union …’
8) Article 51(1) of the Charter, that article being headed ‘Field of application’, provides:
‘The provisions of [the] Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law …’
9) Recital 29 of the Visa Code states: ‘This Regulation respects fundamental rights and observes the principles recognised in particular by the [ECHR] and the [Charter].’
14) Article 4 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1, ‘the Schengen Borders Code’), headed ‘Fundamental Rights’, is worded as follows:
‘When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the [Charter], relevant international law, including the [Geneva Convention], obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis.’
23) Before the referring court, the applicants in the main proceedings claim, essentially, that Article 18 of the Charter imposes a positive obligation on the Member States to guarantee the right to asylum and that the granting of international protection is the only way to avoid any risk that Article 3 of the ECHR and Article 4 of the Charter will be infringed. In the present case, since the Belgian authorities have themselves taken the view that the applicants in the main proceedings are in a situation that is exceptional from a humanitarian point of view, the latter assert that, having regard to the international obligations of the Kingdom of Belgium, the conditions for applying Article 25(1)(a) of the Visa Code were satisfied, and they conclude therefore that they should have been issued, on humanitarian grounds, with the visas that they were seeking to obtain.
26) In addition, the referring court notes that the implementation of Article 4 of the Charter, unlike Article 3 of the ECHR, does not depend on the exercise of jurisdiction but on the application of EU law. However, it does not follow either from the Treaties or from the Charter that that implementation is territorially limited.
27) With regard to Article 25 of the Visa Code, the referring court notes that it provides, inter alia, that a visa must be issued when a Member State ‘considers’ it to be necessary because of international obligations. The referring court, however, questions the extent of Member States’ discretion in that respect and is of the opinion that, having regard to the binding nature of international obligations and those arising from the Charter, any such discretion can be ruled out in that respect.
28) In those circumstances, the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Do the “international obligations” referred to in Article 25(1)(a) of the Visa Code cover all the rights guaranteed by the Charter, including, in particular, those guaranteed by Articles 4 and 18, and do they also cover obligations which bind the Member States, in the light of the ECHR and Article 33 of the Geneva Convention?
(2) (a) Depending on the answer given to the first question, must Article 25(1)(a) of the Visa Code be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter or another international obligation by which it is bound is established?
(b) Does the existence of links between the applicant and the Member State to which the visa application was made (for example, family connections, host families, guarantors and sponsors) affect the answer to that question?’
38) By its first question the referring court asks, in essence, whether Article 25(1)(a) of the Visa Code must be interpreted as meaning that the international obligations referred to in that article include compliance by a Member State with all the rights guaranteed by the Charter, in particular, in Articles 4 and 18 thereof, by the ECHR and by Article 33 of the Geneva Convention. By its second question it asks, in essence, whether, depending on the answer given to its first question, Article 25(1)(a) of the Visa Code must be interpreted as meaning that the Member State to which an application for a visa with limited territorial validity was made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter or another international obligation by which it is bound is established. If necessary, the referring court also seeks to ascertain whether the existence of links between the applicant and the Member State to which the visa application was made has any bearing in that regard.
45) Since the situation at issue in the main proceedings is not, therefore, governed by EU law, the provisions of the Charter, in particular, Articles 4 and 18 thereof, referred to in the questions of the referring court, do not apply to it (see, to that effect, inter alia, judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19, and of 27 March 2014, Torralbo Marcos, C‑265/13, EU:C:2014:187, paragraph 29 and the case-law cited).