Advocate General Pikamäe’s opinion on the joined cases R.N.N.S., K.A. v. Minister van Buitenlandse Zaken

On 9 September 2020, Advocate General Pikamäe delivered his opinion in the Grand Chamber case R.N.N.S., K.A. v. Minister van Buitenlandse Zaken (joined cases C‑225/19 and C‑226/19) on a request for preliminary ruling from the District Court of the Hague. The questions concern the interpretation of Article 32 of the Visa Code (Regulation 810/2009), read in light of Article 41 and 47 of the Charter of Fundamental Rights of the European Union.

The national proceedings involve the review of refusals to grant visa applications on the basis of Article 32(1)(vi) Visa Code. In this context, the referring court asks whether a Member State that rejects a visa application, after another Member State has objected to the issuing of the visa, is required to communicate the identity of the objecting Member State and the latter’s substantive reasons in its rejection decision or during the appeal procedure.

The AG opines, following opinions of AG Szpunar, Bobek and Mengozzi, that EU law does not grant nationals of third countries any right to enter the territory of the Member States or any subjective right to obtain a visa. Therefore, Member States are not required to supply a detailed statement of reasons, and, consequently, the standard form outlined in Annex VI to the Visa Code meets the requirements of the right to an effective remedy under Article 47 of the Charter. Similarly, the AG addresses the margin of appreciation in the Member States’ assessment of ‘a threat to’ public policy, internal security or public health. Indeed, he favours a wide margin of appreciation for Member States, given the preventive nature of the visa regime, conceived with the objective of protecting security throughout the Schengen area from external risks such as illegal migration and human trafficking.

Following the AG’s evaluation of the legal status of a third country national visa applicant and the objectives of the EU’s foreign and security policy, the AG suggests that it is appropriate to place less stringent requirements on the statement of reasons for a decision refusing a visa.

Nevertheless, the AG emphasizes that EU law provides minimum guarantees, leaving to the Member States the task of determining the detailed rules of the appeal procedure while observing the principles of equivalence and effectiveness. He notes that there is nothing to prevent them from also making information classified as confidential available to the judicial body, on certain conditions. He states that where appropriate, the Member States may, in order to protect their national interests, request the judicial body to apply techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the decision on refusal concerned and, on the other, the need to guarantee sufficiently to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process.

He suggests that it is within the jurisdiction of the Member States to decide on the nature of and the specific rules applicable to the remedies available to visa applicants to challenge the objections raised to the issuing of a visa in the context of the consultation procedure provided for in Article 22 of the Visa Code. Finally, the AG adds that Member States should provide applicants with information relating to the remedies, upon application or following a complaint.

Photo: Transparency International, March 2013, Flickr (CC)

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