CJEU Case C-949/19 / Judgment

M.A. v Konsul Rzeczypospolitej Polskiej w N.
Policy area
Borders and Visa
Deciding body type
Court of Justice of the European Union
Deciding body
Court (First Chamber)
Type
Decision
Decision date
10/03/2021
ECLI (European case law identifier)
ECLI:EU:C:2021:186
  • CJEU Case C-949/19 / Judgment

    Key facts of the case:

    Request for a preliminary ruling from the Naczelny Sąd Administracyjny.

    Reference for a preliminary ruling – Border controls, asylum and immigration – Visa policy – Convention implementing the Schengen Agreement – Article 21(2a) – Charter of Fundamental Rights – Article 47 – Right to an effective remedy – Refusal of a long-stay visa by the consul – Obligation on a Member State to guarantee a remedy before a tribunal against a decision refusing such a visa.

     

    Outcome of the case:

        
    On those grounds, the Court (First Chamber) hereby rules:

    1. Article 21(2a) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, which was signed in Schengen on 19 June 1990 and entered into force on 26 March 1995, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as not being applicable to a national of a third State who has been refused a long-stay visa.
    2. EU law, in particular Article 34(5) of Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing, 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 the Member States to provide for an appeal procedure against decisions refusing a visa for the purpose of studies, within the meaning of that directive, the procedural rules of which are a matter for the legal order of each Member State, in conformity with the principles of equivalence and effectiveness, and that procedure must, at a certain stage, guarantee a judicial appeal. It is for the referring court to establish whether the application for a national long-term visa for the purpose of studies that is at issue in the main proceedings falls within the scope of that directive.
  • Paragraphs referring to EU Charter

    1) This request for a preliminary ruling concerns the interpretation of Article 21(2a) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), which was signed in Schengen on 19 June 1990 and entered into force on 26 March 1995, 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 CISA’), and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

    ...

    20) In that regard, the referring court observes that Article 21(2a) of the CISA grants the right of free movement to foreign nationals who hold a national long-stay visa. Thus, a national visa is one of the means enabling a foreign national to exercise the right of free movement and, as such, does not display fundamental differences vis-a-vis the exercise of that right under a Schengen visa granted to a third-country national. According to the referring court, although national visas and Schengen visas present differences as regards the rules, the requirements and the procedures for their issue that are applicable to them, both those types of visas concern the exercise by foreign nationals of the same right derived from EU law. The fact that it is not possible to challenge before a court the final decision refusing a national visa may therefore amount to an infringement of EU law, in particular the right to an effective remedy before a tribunal, set out in the first paragraph of Article 47 of the Charter.

    21) In those circumstances, the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

    ‘Must Article 21(2a) of the [CISA] in conjunction with the first paragraph of Article 47 of the [Charter] be interpreted as meaning that a third-country national who has been refused a long-stay visa and who cannot exercise the right to move freely within the territories of the other Member States under Article 21(1) of the [CISA] must have the right to an effective remedy before a tribunal?’

    ...

    26) By its question, the referring court asks, in essence, whether EU law, in particular Article 21(2a) of the CISA, read in the light of Article 47 of the Charter, must be interpreted as obliging the Member States to provide for a judicial appeal against decisions refusing a long-stay visa for the purpose of studies.

    ...

    29) Thus, that provision does not grant nationals of third States who have been refused such a visa any right or freedom that would be covered by the principle of effective judicial protection, enshrined in Article 47 of the Charter. Consequently, Article 21(2a) of the CISA does not impose upon the Member States any obligation in that regard in relation to those nationals of third States.

    ...

    35) Since applications for such long-stay visas are not, therefore, governed by EU law, the provisions of the Charter, in particular Article 47, do not apply to the refusal of such applications (see, to that effect, in respect of long-stay visas issued on humanitarian grounds, judgment of 7 March 2017, X and X, C‑638/16 PPU, EU:C:2017:173, paragraph 45 and the case-law cited).

    36) The scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78 and the case-law cited).

    ...

        
    44) Furthermore, in accordance with the case-law recalled in paragraph 36 of the present judgment, the characteristics of the appeal procedure envisaged in Article 34(5) of Directive 2016/801 must be determined in a manner that is consistent with Article 47 of the Charter.

    45) That provision of the Charter requires the Member States to guarantee, at a certain stage of that procedure, a judicial appeal (see, to that effect, judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 41).

    46) Consequently, so far as concerns decisions refusing a visa for the purpose of studies that is covered by Directive 2016/801, EU law, in particular Article 34(5) of that directive, read in the light of Article 47 of the Charter, requires the Member States to provide for an appeal procedure against such decisions, the procedural rules of which are a matter for the legal order of each Member State, in conformity with the principles of equivalence and effectiveness, and that procedure must, at a certain stage, guarantee a judicial appeal (see, by analogy, judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 42).

    ...

    48) EU law, in particular Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, must be interpreted as meaning that it requires the Member States to provide for an appeal procedure against decisions refusing a visa for the purpose of studies, within the meaning of that directive, the procedural rules of which are a matter for the legal order of each Member State, in conformity with the principles of equivalence and effectiveness, and that procedure must, at a certain stage, guarantee a judicial appeal. It is for the referring court to establish whether the application for a national long-term visa for the purpose of studies that is at issue in the main proceedings falls within the scope of that directive.