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Action brought on 13 May 2005 by the Commission of the European Communities against the Republic of Austria

(Case C-209/05)

(2005/C 171/18)

Language of the case: German

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 13 May 2005 by the Commission of the European Communities, represented by Maria Condou and Wolfgang Bogensberger, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

Directive 64/221/EEC imposes various obligations on the Member States in relation to the measures adopted, for persons falling within their personal scope, on the grounds of public policy, public security or public health, in particular as regards the reasons on which decisions are based and legal remedies available against decisions. Pursuant to Article 6 of the directive the person concerned is to be informed of the grounds of public policy, public security, or public health upon which the refusal to issue a visa to a member of the family of a citizen of the Union is based. Article 8 of the directive stipulates that the person whose visa application was rejected must have at least the same legal remedies against the decision as are available to nationals of the State concerned in respect of acts of the administration.

The Commission is of the view that certain provisions of the Austrian Fremdengesetz (Law on Aliens) do not correspond to the aforementioned Community law requirements contained in the directive.

Pursuant to Paragraph 93(2) of the Fremdengesetz, a written decision is to be given only on application in writing or by protocol by the party concerned and it is sufficient, in the statement of reasons of the decision, to state only the relevant legal provisions. Under Article 6 of the directive, however, the Member States are under an automatic duty to state reasons: the stating of reasons may not be dependant on urgency, nor on the applications of the person concerned. The mere indication of the legal provisions applied does not, furthermore, satisfy the requirements demanded of a statement of reasons: mere reference to the legal provisions applied in reaching a negative decision does not amount to adequate information on the grounds of rejection. The Court's case-law also shows that a precise, sufficiently detailed and complete statement of reasons for a decision is required so that the person concerned can challenge the decision made against him and protect his interests accordingly.

Paragraph 94(2) of the Austrian Fremdengesetz does not allow for appeals against refusals or declarations of invalidity of visas. This provision infringes the obligation under Article 8 of the directive, according to which the person concerned must have the same legal remedies as are available to nationals of the State concerned in respect of acts of the administration, regardless of whether these are remedies submitted to administrative authorities or the courts. The Commission considers incorrect the Republic of Austria's arguments that the refusal of legal remedies in this connection is justified by the fact that neither refusals nor declarations of invalidity of visas have any consequential effect beyond the individual act in question and that submitting a new application is a quicker means of reaching one's goal than pursuing a legal remedy against the decision. Submitting a renewed application entails the risk that the objectively incorrect decision may simply be repeated.

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(1)  OJ, English Special Edition 1963-1964, p. 117.

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