CJEU: Opinion AG Bobek in Case C-403/16 El Hassani

Thursday, September 7, 2017

On 7 September 2017, Advocate General Bobek published his Opinion regarding Case C-403/16 which relates to the interpretation of Article 32(3) of the Visa Code (right to appeal) in light of Article 47 of the EU Charter of Fundamental Rights (right to an effective remedy). The main proceeding concerns Mr El Hassani, who unsuccessfully applied for a Schegen visa to visit his wife and children in Poland. He appealed against the visa rejection but, under Polish law, a judicial review of visa decisions is excluded and appeals are analysed by the same consul who reached the first decision. The Supreme Administrative Court of Poland requested the CJEU to provide clarity on whether the right to appeal under the Visa Code presupposes an obligation to provide for a judicial review of the decision.
According to AG Bobek, the text, context and purpose of the Visa Code does not necessarily require that Member States provide for a judicial review mechanism. He puts forward that such appeal can be of an administrative or judicial nature, which is for the Member States discretion to decide. AG Bobek rejected the appellant’s and the Commission’s view that there is a subjective, although not automatic, right to a visa under EU Law. He recognised, however, that the right to have one’s visa application fairly and properly assessed is protected under EU Law. Therefore, Article 47 CFR is applicable in the case in question and adds an obligation for the Member States that, at some stage of the proceedings, there must be the possibility of bringing the matter before a court.


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Effective remedy (right to)