CJEU: Advocate General Sharpston delivers opinion in Case C-680/17

Date: 
Thursday, March 28, 2019

On 28 March, Advocate General Eleanor Sharpston (AG or Advocate) delivered an opinion on the regime applicable to the issue and refusal of visas under the Visa Code, where Member States (MS) don’t have a consular presence, as well as on the standing of sponsors.

Regarding the question on whether sponsors may appeal in their own name against a decision refusing a visa, the AG noted that, in the absence of EU rules on the matter, it is for the national legal order of each MS to establish procedural rules for actions aiming to safeguard the rights of individuals, in accordance with the principles of procedural autonomy, equivalence and effectiveness. Consequently, according to Article 32 (3) of the Visa Code the AG sees the possibility for sponsors to introduce an appeal in their own name and against the refusal of a visa under national procedural rules. Those rules must ensure that the appeal rights of the sponsor are without prejudice to the visa applicant’s right of appeal, which is a right directly foreseen under the Code. In this regard, if a visa applicant has appealed against a refusal decision, the AG finds it difficult that the sponsor could introduce a second appeal against the same decision.

With regard to the question on which MS should be taking the final decision on a refusal of visa, when there is a representation agreement in place authorising a representing MS to refuse a visa in accordance with Article 8(4)(d) of the Code, the AG first noted that these agreements aim to avoid putting disproportionate effort, travel and expenses to visa applicants when accessing the consulates. In this respect, the Advocate observed, inter alia, that the recognition of the jurisdiction of the represented MS would best reflect the principle of effective judicial protection, as provided under Article 47 of the Charter of Fundamental Rights. Applicants can then avoid appealing before the judicial authorities of a MS with which they do not have any link and which is not their destination.

Moreover, the AG is of the opinion that the Visa Code is intended to provide coherence and equal treatment between applicants. Consequently, in situations where applications for visas towards a MS are refused by consulates of different MSs – acting through representation agreements – and the appeals against those decisions are submitted before the judicial authorities of different representing MSs, there is a risk of different treatment of appeals by applicants who wish to visit the first MS. According to the Advocate General, these situations would be inconsistent with the Code’s overall purpose.

 


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE. 

 

                                                     

 

Keywords: 
Visa