CJEU Judgment: Case C-403/16 El Hassani, 13 December 2017

Wednesday, December 13, 2017

On 13 December 2017, the CJEU delivered its ruling in case C-403/16 El Hassani. The main proceedings concerned a Moroccan national who submitted an application for a Schengen visa to the Consul of the Republic of Poland in Rabat in order to visit his wife and son who are Polish nationals. The application and the subsequent request for review were rejected on the ground of a lack of certainty as to Mr El Hassani’s intention to leave Poland before the visa expired.  Following an unsuccessful appeal before the Regional Administrative Court, Mr El Hassani brought an appeal in cassation before the Supreme Administrative Court of Poland, who then asked the CJEU to clarify whether the Visa Code, read in the light of Article 47 Charter of Fundamental Rights of the European Union (CFR EU), requires Member States to provide for a judicial appeal against a visa refusal.

First, the CJEU advanced that the EU legislature left to the Member States the task of deciding the nature and specific conditions of the remedies available to visa applicants. However, national procedural autonomy is subject to the principles of equivalence and effectiveness necessary to ensure judicial protection of an individual’s rights under EU law, which is for the referring court to assess. Moreover, the CJEU affirmed that the CFR EU is applicable where a Member State adopts a decision refusing to issue a visa under Article 32(1) of the Visa Code. Article 47 CFR EU requires that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues. Therefore, it follows that Article 47 CFR EU requires the Member States to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court.


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Effective remedy (right to)