Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court of Justice referred in its reasoning to the Art. 47 of the Charter and explained that procedure against decisions refusing visas must, at a certain stage of the proceedings, guarantee a judicial appeal.
Mr El Hassani submitted an application for a Schengen visa to the Polish Consul in Rabat. That application was refused twice. Then Mr El Hassani appealed against that decision before the Regional Administrative Court in Warsaw. The appeal was dismissed on the basis of Article 5(4) of the Law on proceedings before the administrative courts, holding that actions brought against a decision to refuse a Schengen visa by the consul does not fall within the jurisdiction of the administrative court.
Mr El Hassani brought an cassation appeal before the Supreme Administrative Court arguing essentially that he has been denied the right to an effective judicial remedy before a national court, contrary to Article 32(3) of the Visa Code, read together with Article 47 of the Charter, which guarantees the right to an effective remedy before a tribunal.
In those circumstances, the Supreme Administrative Court referred the following question to the CJEU for a preliminary ruling - whether Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter, must be interpreted as meaning that it requires Member States to provide for a judicial appeal.
Whether Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter, must be interpreted as meaning that it requires Member States to provide for a judicial appeal.
In operative part of the judgement the CJEU answered that Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter, must be interpreted as meaning that it requires Member States to provide for an appeal procedure against decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, guarantee a judicial appeal.
In reasons of the judgment the CJEU stated that according to the Article 32(3) of the Visa Code, applicants who have been refused a visa have the right to an ‘appeal’ against this decision. The appeal must be introduced against the Member State that has taken the final decision on the application ‘in accordance with the national law of that Member State’.
The CJEU stated that the interpretation of the provisions of the Visa Code, as is clear from recital 29 thereof, must be carried out in accordance with the fundamental rights and principles recognised by the Charter. It is clear that the Charter is applicable where a Member State adopts a decision refusing to issue a visa under Article 32(1) of the Visa Code.