Italy / Council of State / 1027 Ministry of Foreign Affairs v Mo. Fe. Pe. and Mo. Vi. Az.

Key facts of the case:

Mo. Fe. Pe. and Mo. Vi. Az. are a married couple from the Philippines whose children live in Italy. On invitation by their children, the couple applied for a tourist visa and the application was turned down. According to the Ministry, the application for a tourist visa was in reality a way of entering in Italy without going through the provisions on family reunion. - Immigration - The Council of State focused on the reasons for refusing the visa, questioning whether the competent office of the Ministry of Foreign Affairs enjoyed a margin of discretion when it took the decision or was obliged to follow the relevant EU regulation. According to the Council of State, although the competent office provides general and standard justification for refusing a visa, it does not violate the right set forth in Article 41 of the EU Charter of Fundamental Rights. Therefore, in disagreement with the lower Court, the Council of State confirmed the refusal to issue a visa to Mr. and Mrs. Mo.

Paragraphs referring to EU Charter: 

 

Everyone who applies for a visa should be granted the fundamental rights set forth in the European Convention on Human Rights and the EU Charter of Fundamental Rights. The examination of applications should guarantee professionality and the respect of the prohibition of inhuman and degrading treatment and discrimination, as affirmed in Articles 3 and 14 of the European Convention on Human Rights and Articles 4 and 21 of the EU Charter of Fundamental Rights. [...] The standardisation of the justification for refusing a visa, does not prevent a general obligation to give reasons for the adoption of an administrative act (Article 3 of the Law 7 August 1990 no. 241) nor does it prevent the examination of the same justification by the administrative judge. Even in the EU regulation from which this obligation of standardisation derives, the obligation of the administration to give reasons for its decisions is a principle not only affirmed by the EU Court of Justice, but also found in Article 296 (2) of the Treaty on the Functioning of the European Union (TFEU) where it states that “legal acts are justified”; moreover, the same principle is reaffirmed in Art. 41 (2) let. (c), of the EU Charter of Fundamental Rights as the right to a good administration, where it provides for an obligation of the administration to give reasons for its decisions. Finally, it should be added that the Charter and the recalled principle have the same legal status of the EU Treaties (Article 6 (1) of the EU Treaty).

Deciding body (original language): 
Consiglio di Stato
Language: 
Italian