Opinion of the Advocate General — ECLI:EU:C:2023:887
Date: 2023-11-16
Language of the case: French
Subject matter: Immigration and asylum policy;Provisions governing the Institutions;Area of freedom, security and justice;Fundamental rights;Acts of the institutions;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-14/23 – 1 
Case C-14/23 
Request for a preliminary ruling 
Date lodged:  
16 January 2023 
Referring court:  
Conseil d’État (Belgium) 
Date of the decision to refer:  
23 December 2022 
Appellant:  
XXX 
Respondent:  
Belgian State, represented by the State Secretary for Asylum and 
Migration 
  
CONSEIL D’ÉTAT (COUNCIL OF STATE), ADMINISTRATIVE 
LITIGATION DIVISION 
ELEVENTH CHAMBER 
JUDGMENT 
No 255.381 of 23 December 2022 
[…] 
In the proceedings: XXX, 
 […] 
v 
the Belgian State, represented by 
EN 
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Secrétaire d’État à l’Asile et la 
Migration (State Secretary for Asylum 
and Migration), 
[…] 
I. Subject matter of the application 
By application lodged on 19 January 2021, XXX sought to have set aside 
Judgment No 246.757 of 23 December 2020) delivered by the Conseil du 
contentieux des étrangers (Asylum and Immigration Board, Belgium; ‘the Board’) 
in Case 252.221/I. 
II. Proceedings before the Conseil d’État (Council of State, Belgium) 
[…] 
[…] [procedure] 
III. Facts relevant to the examination of the case 
On 6 August 2020, the appellant applied for a visa to study in Belgium on the 
basis of Article 58 of the Law of 15 December 1980 on access to the territory, 
residence, establishment and removal of foreign nationals (‘the Law on foreign 
nationals’ or ‘the Law of 15 December 1980’). 
On 18 September 2020, the respondent refused to grant the visa. 
On 28 September 2020, the appellant sought to have the decision of 18 September 
2020 set aside. 
On 23 December 2020, the Asylum and Immigration Board (‘the Board’), by the 
judgment under appeal, dismissed the action to have the decision set aside. 
IV. Plea in law 
The appellant puts forward a single plea in law alleging infringement of 
‘Article 288 TFEU, of Articles 14, 47 and 52 of the Charter of Fundamental 
Rights of the European Union (‘the Charter’), of Articles 3, 5, 7, 11, 20, 34, 35 
and 40 of Directive 2016/801 of the European Parliament and of the Council of 
11 May 2016 on the conditions of entry and residence of third-country nationals 
for the purposes of research, studies, training, voluntary service, pupil exchange 
schemes or educational projects and au pairing (recast) [OJ 2016 L 132, p. 21], of 
Articles 39/1, 39/2(2), 39/65 and 58 of the Law of 15 December 1980 […], read in 
accordance with the above European provisions, of the principle of legal certainty 
and the duty of transparency and of the principle of effectiveness.’ 
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First complaint 
Submissions of the parties 
The appellant submits that ‘the dispute is governed by Directive 2016/801, which 
was to be transposed by 23 May 2018 (Article 40)’, that ‘(…) Article 288 TFEU 
stipulates that the directive shall be binding, as to the result to be achieved, upon 
each Member State to which it is addressed, but shall leave to the national 
authorities the choice of form and methods binding on the countries which are its 
addressees, that, ‘in paragraphs 22 and 25 of the judgment [of 15 March 1990, 
Commission v Netherlands, (C-339/87, EU:C:1990:119)], the Court of Justice 
ruled that, in view of the principle of legal certainty, the relevant prohibitions 
must be reproduced in mandatory legal provisions’, that ‘such an obligation 
applies to the Member State concerned, above all in order to establish a 
framework of laws or regulations which is sufficiently precise, clear and 
transparent to ensure in law, in all circumstances, the full application of the 
directive and to enable individuals to know their rights and obligations (…)’, that 
‘Directive 2016/801 has not been transposed into Belgian law to this day […]’, 
that ‘since the transposition period expired two and a half years ago, domestic law 
must be applied, if not interpreted, in conformity with the directive’, that ‘the 
obligation arising from a directive for the Member States to achieve the result 
envisaged therein and their duty under Article 5 of the Treaty Establishing the 
European Community to take all appropriate measures, whether general or 
particular, to ensure compliance with that obligation is binding on all the 
authorities of Member States, including, for matters within their jurisdiction, the 
courts, and that, when applying national law, the national court therefore must 
interpret that law in the light of the wording and the purpose of the directive so as 
to achieve the result it has in view and thereby comply with the third subparagraph 
of Article 189 of the Treaty’, that ‘the national court is the [Board] […]’, that 
‘Article 58 (…) sets out the conditions applicable to periods of residence for study 
purposes in Belgium’, that ‘according to the court, it is immaterial that Article 
[20(2)(f)] of Directive [2016/801] has not been transposed, since Article 58 of the 
Law on foreign nationals is in conformity with Article 20 [of that directive]; the 
option it provides is consistent with the requirements of Article 58 of the Law on 
foreign nationals, relating to foreign nationals who wish to study in Belgium, 
which implies that the administration (may and even) must verify the appellant’s 
wish to study’, that ‘such reasoning disregards all of the preceding provisions’, 
that ‘Article 3 of Directive [2016/801] does not define a student as a foreign 
national who wishes to study but as one who has been accepted by a higher 
education institution; that acceptance is one of the specific conditions laid down 
by Article [11(1)(a)] of Directive [2016/801]’, that ‘its Article [20(1)(a)] requires 
Member States to reject an application where this condition is not met’, that ‘the 
definition of a student is therefore not identical in Directive [2016/801] and in the 
Law on foreign nationals; the directive lays down an objective criterion, namely 
acceptance by a higher education institution; the law refers to a wish to study, 
which, according to the court, requires (…) the State to verify the wish to study’, 
that ‘… the intention to study is not a constituent element of the application where 
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that intention follows neither from the definition of a student by Article 3 of the 
directive nor from the general or specific conditions laid down by its Articles 7 
and 11 [and] does not require the respondent to reject the application’, that ‘on the 
assumption that that intention might constitute a ground for rejection within the 
meaning of Article [20(2)(f)] of Directive [2016/801], unlike Article [20(1)], 
Article [20(2)] of the directive provides only rejection options (may reject)’, that 
‘one the one hand, it is therefore inaccurate to assert that the State must verify the 
wish to study, since it would only be an optional and not a mandatory ground for 
rejection’, that ‘on the other hand, while Article [20(1)] of Directive [2016/801] 
may be considered sufficiently clear […] to have direct effect without 
transposition, given its imperative character and the precise references to clear and 
objective provisions and circumstances imposing rejection, the same does not 
apply to Article [20(2) of the same directive], which provides only the option of 
rejection and does not contain such references’, that ‘Article 288 TFEU, 
[Article 20(2)(f) and Articles] 34, 35 and 40 of Directive [2016/801] and the 
principle of legal certainty invoked above as well as the duty of transparency set 
forth in Articles 34 and 35 [of Directive 2016/801] dictate that the State cannot 
exercise that option unless: 1. it is expressly transposed into national law because 
Article [20(2)(f) of Directive 2016/801] does not authorise rejection unless the 
Member State has evidence or serious and objective grounds to establish that the 
third-country national would reside for purposes other than those for which he or 
she applies to be admitted (‘serious and objective grounds’); 2. the legislation, in 
turn, specifies the serious and objective grounds which make it possible to 
exercise that option and to establish that the student will be residing for purposes 
other than those for which he or she has applied to be admitted’, ‘which […] is 
manifestly not the case with Article 58 of the Law on foreign nationals, which 
refers neither to that rejection option nor to evidence or serious and objective 
grounds (…)’, that ‘Article [3(7)] of Directive [2008/115/EC of the European 
Parliament and of the Council of 16 December 2008 on common standards and 
procedures in Member States for returning illegally staying third-country nationals 
(OJ 2008 L 348, p. 98)] certainly specifies that the objective criteria must be 
defined by law, which is not indicated by Article [20(2)(f)] of Directive 2016/801, 
but it is difficult to see how objective grounds can have that status without being 
so defined’, ‘which is confirmed by the recitals of Directive 2016/801’, that 
‘according to recital 2 thereof, Directive 2016/801 should ensure increased 
transparency and legal certainty and offer a coherent legal framework for different 
categories of third-country nationals coming to the Union’, that ‘according to 
recital 60 thereof, each Member State should ensure that adequate and regularly 
updated information is made available to the general public, notably on the 
internet, concerning the host entities approved for the purposes of the directive 
and the conditions and procedures for admission of third-country nationals to the 
territory of the Member States for the purposes of the directive’, that ‘Article 35 
of the directive recalls the duty of transparency (…)’, that ‘transparency and legal 
certainty dictate that the serious and objective grounds must be known to the 
student before the submission of his or her application, which is not the case with 
Article 58 of the Law on foreign nationals […]’, that ‘where a right is limited, a 
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law must state that clearly’, that ‘that principle is apparent from Article 52(1) of 
the Charter (…)’, that ‘the right to education is guaranteed by Article 14 of the 
Charter, the requirements of which the directive meets (in recital 61 thereof)’, that 
‘in its judgment [of 15 March 2017, Al Chodor (C-528/15, EU C 2017 213)], the 
Court recalls the principles set forth in Article [52(1)] of the Charter and applies 
them to the detention of a foreign national in the framework of the Dublin III 
Regulation (paragraph 37 of the judgment)’, that ‘even though the protected right 
is not of the same nature, it [the Court] insists on compliance with strict 
safeguards, namely the presence of a legal basis, clarity, predictability, 
accessibility and protection against arbitrariness (…)’, that it ‘is therefore 
important that the discretionary power available to the State under Article 
[20(2)(f) of Directive 2016/801], read in conjunction with Article 35 and recital 2 
thereof, lies within certain pre-established limits’, that ‘it is essential that the 
serious and objective grounds which may limit the right of residence for the 
purpose of studies are precisely defined by a binding act which is foreseeable in 
its application’, that ‘only a provision of general application could meet the 
requirements of clarity, predictability, accessibility and, in particular, protection 
against arbitrariness’ and that ‘… this is not the case with Article 58 of the Law on 
foreign nationals, which does not comply with the full range of provisions and 
principles set out in this complaint’. 
[…] 
The respondent replies that ‘Article 58 of the Law of 15 December 1980 is 
regarded as the transposition into Belgian law of Articles 7 and 11 of Directive 
2016/801’, that ‘this directive replaced Directive 2004/114/EC [of the Council of 
13 December 2004 on the conditions of admission of third-country nationals for 
the purposes of studies, pupil exchange, unremunerated training or voluntary 
service (OJ 2004 L 375, p. 12)]’, that ‘under this provision, if the appellant fulfils 
the various conditions, the jurisdiction of the respondent in cassation is bound and 
must recognise a right of residence’, that ‘it must be noted, however, that 
Article 58 of the Law of 15 December 1980 provides that a residence permit is to 
be granted to a foreign national who wishes to study in Belgium’, that ‘Directive 
2016/801 allows Member States to verify the reality of the foreign national’s 
intention to study and, to this end, defines the strict framework of this verification 
in its Article [20(2)(f)]’, that ‘in accordance with (recital 41 of Directive 
2016/801), Member States may require the evidence they need in order to assess 
the consistency of the application for admission, namely proof of the intention to 
study’, that ‘even though Article 3 of Directive 2016/801 does not define a student 
[by] his or her intention to study, recital 41 of the same Directive allows the 
applicant’s intention to study to be verified’, that ‘this recital is inspired by 
recital 15 of Directive 2004/114/EC, which previously governed the matter of 
visas for study purposes and according to which, in case of doubts concerning the 
grounds of the application of admission, Member States should be able to require 
all the evidence necessary to assess its coherence, in particular on the basis of the 
applicant’s proposed studies, in order to fight against abuse and misuse of the 
procedure set out in this Directive’, that ‘in the context of a preliminary ruling on 
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the Member States’ […] margin of appreciation when examining the conditions 
for admission of third-country nationals for the purpose of study for which 
Directive 2004/114/EC provides, the Court of Justice of the European Union (‘the 
Court of Justice’), after finding that the decision to refuse to grant a visa was 
based on doubts as to the intention to study, had held that: “It is true that Directive 
2004/114 allows Member States to exercise a measure of discretion when 
considering applications for admission. However, it should be noted that, as the 
Advocate General observed in point 49 of his Opinion, the discretion available to 
the national authorities relates only to the conditions laid down in Articles 6 and 7 
of that directive and, within that context, to the assessment of the relevant facts in 
order to determine whether those conditions are met and, in particular, whether 
there are grounds relating to the existence of a threat to public policy, public 
security or public health which preclude the admission of the third-country 
national. Consequently, for the purposes of the appraisal to be made in relation to 
the conditions for admission on the basis of Directive 2004/114, there is nothing 
to prevent Member States, in accordance with recital 15 of that directive, from 
requiring all the evidence necessary to assess the coherence of the application for 
admission, in order to fight against abuse and misuse of the procedure set out in 
that directive”’, that ‘it is clear from the foregoing that the national court could 
consider the intention to study as a constituent element of the application and not 
as an additional condition’, that ‘it is also apparent from that case-law that, since 
the right of the respondent in cassation to […] verify the intention of the appellant 
in cassation has already been decided by the Court of Justice, it is not necessary to 
question it [on that point]’, that ‘thus, Article 58 of the Law of 15 December 1980, 
which is considered to be the transposition of Articles 7 and 11 of Directive 
2016/801 and which must be interpreted in accordance with that directive, gives 
the respondent in cassation the option of verifying the intention to study in 
accordance with recital 41 and independently of Article [20(2)(f)] of the aforesaid 
directive’, that it ‘cannot therefore be argued that the conditions for granting a 
residence permit are not clear and precise, with the same applying to the 
discretionary power of the respondent in cassation’, […] [repetitions]. 
At the hearing, the respondent also submitted, in essence, that the applicant has no 
interest in the reference for a preliminary ruling because the Court of Justice has 
already decided the question in its judgment [of 10 September 2014, Ben Alaya 
(C-491/13, EU:C:2014:2187)] […] [irrelevant]. 
The appellant replies […] that ‘according to the respondent, consideration of the 
intention of the (visa applicant) is permitted by recital 41 of Directive 2016/801, 
which is based on recital 15 of Directive 2004/114; the respondent cites the 
judgment [of 10 September 2014, Ben Alaya (C-491/13, EU:C:014:2187)], which 
interprets Directive 2004/114’, that it ‘is doubtful whether a recital can justify the 
limitation of a right; such a limitation must necessarily be included in the articles 
of the directive, and, in that respect, Article 20 of Directive 2016/801 is 
particularly detailed as to the grounds on which the application must or may be 
rejected, whereas Directive 2004/114 made no provision in that regard, Article 18 
thereof being particularly generic’, that ‘which checks are appropriate and which 
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evidence, if any, is required can be determined only within the strict framework of 
the limited scope for rejection for which Article 20 of Directive [2016/801] 
provides and subject to prior transposition into Belgian law’, that ‘although the 
Court of Justice may have held that Directive 2004/114 allows the Member States 
a margin of discretion when examining applications for admission, Article 20 of 
Directive 2016/801 strictly circumscribes that margin of discretion as regards the 
grounds for refusing an application’, that it ‘is particularly doubtful whether the 
respondent can justify the refusal on the basis of the absence of an intention to 
study, whereas [Article 20(2)(f) of Directive 2016/801] requires evidence or 
serious and objective grounds on the respondent’s part, and no national provision 
specifies what constitutes such evidence or grounds, in breach of the transversal 
duty of transparency (Article 35 and recitals 2 and 60)’ […] [irrelevant]. 
Appraisal 
Article 58 of the Law of 15 December 1980 […], as applicable in the present case, 
provides that: 
‘Where the application for authorisation to reside for more than three months in 
the Kingdom of Belgium is submitted to a Belgian diplomatic or consular post by 
a foreign national who wishes to pursue higher education studies in Belgium or to 
undertake a year of preparation there for higher education, that authorisation must 
be granted if the person concerned is not in one of the situations referred to in 
Article 3(1) and (5) to (8) and if he or she produces the following documents: 
(1) a certificate issued by an educational establishment in accordance with 
Article 59; 
[…] 
[…] [irrelevant].’ 
Directive 2016/801 […] was partially transposed in Belgium by the Law of 
11 July 2021 amending the Law of 15 December 1980 […]. 
In the judgment under appeal, the Board decided, in essence, that Article 58 of the 
Law of 15 December 1980, as applicable in the present case and which predates 
the transposition of Directive 2016/801[…], requires the respondent to verify the 
appellant’s intention to study in Belgium. The court at first instance also held that 
the respondent could refuse the visa applied for on the basis of Article 58 of the 
Law of 15 December 1980, even though Article [20(2)(f)] of Directive 2016/801 
had not been transposed, since the option of rejecting a visa application for which 
the latter article provided was also derived from Article 58 of the Law of 
15 December 1980. The Board considered that the application of Article 58 was 
therefore consistent with the requirements of Article [20(2)(f)] of Directive 
2016/801. […] 
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Article 58 of the Law of 15 December 1980, as applicable in the present case, 
does not provide, unlike Article [20(2)(f)] of Directive 2016/801, that the 
respondent may refuse the application for residence if it has evidence or serious 
and objective grounds to establish that the third-country national would reside for 
purposes other than those for which he or she has applied to be admitted. 
Article 58 merely states that the application for a residence permit is submitted by 
a foreign national who ‘wishes to pursue higher education studies in Belgium or to 
undertake a year of preparation there for higher education.’ The Board inferred 
from that statement that the respondent was under an obligation to verify the 
reality of that wish to study in Belgium and was entitled to reject the application if 
it considered that the real intention of the third-country national was not to study. 
According to the appellant, the Board could not lawfully rule that the application 
of Article 58 of the Law of 15 December 1980 complied with the requirements of 
Article [20(2)(f)] of Directive 2016/801, given that the aforesaid Article 58 did 
not transpose that provision […] and […] did not lay down the conditions for 
rejection of the application, namely the existence of evidence or serious and 
objective grounds. The appellant also considers that, because of the definition of 
‘student’ in Article 3 of Directive 2016/801, the latter only enables the respondent 
to satisfy itself that the appellant has been accepted by a higher education 
institution but not that she intends to study there. 
She also submits that the possibility of rejecting her application, in accordance 
with Article [20(2)(f)] of Directive 2016/801 and with the duties of transparency 
and legal certainty, would require that directive to be transposed and national law 
to specify the serious and objective grounds. She argues that those conditions are 
not fulfilled, since Article 58 of the Law of 15 December 1980, as applicable in 
the present case, has not transposed Article [20(2)(f)] of Directive 2016/801 and 
does not specify the serious and objective grounds. 
The appellant’s criticism that Directive 2016/801 merely allows the respondent, in 
the light of the definition of ‘student’ set out in Article 3, to satisfy itself that she 
has been accepted by a higher education institution, but not to verify that she 
intends to study, does not appear to be well founded. Article [20(2)(f)] of that 
directive allows the application to be rejected if it is established that the third-
country national would be residing for purposes other than those for which he or 
she is applying to be admitted. The Member States therefore appear to be 
necessarily entitled to verify that an applicant does indeed intend to stay for the 
purpose justifying his or her application, provided that such verification is 
essential in order to determine whether or not the application can be rejected. 
However, […] the Conseil d’État (Council of State) rules at last instance, and […] 
the conditions in which it must not refer questions to the Court of Justice are not 
satisfied in the present case […]. The judgment of the Court of Justice of 10 
[September 2014, Ben Alaya (C-491/13, EU:C:2014:2187)], which is relied on by 
the respondent, concerns a directive predating Directive 2016/801, so that it does 
not allow the Council of State to refrain from asking [this] question […]. 
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It is also necessary to ask the [Court of Justice] whether […] the correct 
application of Article [20(2)(f)] of Directive 2016/801, in compliance with the 
duties of transparency and legal certainty, requires, in order for an application for 
residence to be rejected, first, that national law expressly provides that that 
application may be rejected where the Member State has evidence or serious and 
objective grounds for establishing that the third-country national would be 
residing for purposes other than those for which he or she is applying to be 
admitted and, second, that national law must specify what [the aforesaid] evidence 
or […] serious and objective grounds are […]. It is therefore appropriate [to 
question the Court of Justice on this point]. 
[…] 
Second complaint 
Submissions of the parties 
The appellant submits that ‘… the Board is the only tribunal with jurisdiction to 
hear an appeal against a decision refusing a visa or temporary residence permit 
taken on the basis of Article 20 of Directive 2016/801’, […] that ‘when exercising 
[that jurisdiction], the Board has only the power to set aside’, that it ‘cannot 
therefore require the authority to issue a visa or residence permit, but only set 
aside the decision, which compels the authority to adopt a new one’, […] that ‘the 
[Board] rejects the appellant’s complaints on the ground that its review of legality 
does not allow it to substitute its own assessment for that of the respondent, 
whereas the detailed rules for the performance of that assessment are defined 
neither precisely nor clearly by Article 58 of the Law on foreign nationals’ and 
that, ‘in conjunction with the first complaint, the [Board] disregards the right to an 
effective remedy and the principle of effectiveness; in the absence of a clear and 
precise legal provision setting out the option of rejection and the objective criteria 
for its exercise, the external review of the respondent’s discretionary power and 
the asserted right of residence for study purposes are, as in the present case, 
excessively difficult to exercise [judgment of 15 March 2017, Al Chodor 
(C-528/15, EU:C:2017:213, paragraph 44)][,] or even impossible[;] in the absence 
of a legal criterion, any rejection is unchallengeable in the context of a remedy 
based on strict legality.’ 
[…] 
The respondent replies […] that ‘Belgian legislation provides for an effective 
remedy against decisions refusing a visa’, that ‘the respondent’s discretionary 
power as to the applicant’s intention to study is clearly established by Article 58 
of the Law of 15 December 1980 and in conformity with Directive 2016/801 – see 
rebuttal of the first complaint – it does not make a great difference in terms of the 
effectiveness of the appeal’, that ‘the reasoning of the appellant in cassation is 
based on the judgment [of 13 December 2017, El Hassani (C-403/16, 
EU:C:2017:960)]’, that ‘however, the respondent in cassation observes that in El 
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Hassani the question referred to the Court of Justice for a preliminary ruling 
concerned the interpretation of Article 32(3) of Regulation (EC) No 810/2009 of 
the European Parliament and of the Council of 13 July 2009 establishing a 
Community Code on Visas [(Visa Code) (OJ 2009 L 243, p. 1)]’, that ‘the scope 
of Regulation No 810/2009 is limited to stays of no more than three months, in 
contrast to the long stay provided for by Directive 2016/801 on residence for the 
purpose of studies’, that ‘therefore, the analogy made by the appellant in cassation 
is not [relevant] […]. 
The appellant replies […] [irrelevant] that ‘in El Hassani, the Court of Justice 
rules on a question relating to a visa procedure and, even though that case does not 
relate to the same type of visa, the principles which it lays down as regards the 
effectiveness of the appeal are perfectly transferable to the present case, as the 
Court of Justice recently ruled [judgment of 10 March 2021, Konsul 
Rzeczypospolitej Polskiej w N. (C-949/19, EU:C:2021:186)] (…)’. 
Appraisal 
The second complaint is admissible in so far as it alleges infringement of 
provisions of EU law […]. The situation at issue is actually regulated, in particular 
by Directive 2016/801, which the Belgian State should have transposed by 
23 May 2018 at the latest. The fact that Article [34(5)] of Directive 2016/801 
entrusts the Member States with the task of hearing an appeal against a decision 
rejecting an application for residence does not mean that that remedy falls outside 
the scope of EU law, since it is prescribed by that directive in order to safeguard 
the rights of individuals. The detailed procedural rules governing that remedy 
must comply with the principles of equivalence and effectiveness. 
The remedy, governed by Belgian law pursuant to Article [34(5)] of Directive 
2016/801, is an action for annulment provided for in Article 39/2(2) of the Law of 
15 December 1980. 
Under that provision: 
‘§ 2. The (Belgian Asylum and Immigration) Board shall give a ruling, by way of 
judgment, on other actions for annulment on the ground of infringement of 
procedural requirements which are either essential or breach of which leads to 
nullity, or on the ground of abuse or misuse of powers.’ 
The review carried out by the Board under Article 39/2(2) of the Law of 
15 December 1980 is a review of legality. The Board may censure an unlawful 
act, in particular a manifest error of assessment on the part of the Belgian State. It 
does not, however, have a power of alteration. The Board cannot therefore 
substitute its assessment for that of the respondent or take a new decision in the 
place of the respondent. However, where the contested decision is set aside, the 
respondent is bound by the force of res judicata attaching to the operative part of 
the judgment and the grounds constituting its essential basis. 
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The appellant submits, in essence, that the remedy established by Article 39/2(2) 
of the Law of 15 December 1980 does not meet the effectiveness requirements 
demanded by Article [34(5)] of Directive 2016/801, by the principle of 
effectiveness and by Article 47 of the Charter. 
It is therefore necessary to refer a question to the Court on that point […]. 
[…] 
ON THOSE GROUNDS, 
THE COUNCIL OF STATE HEREBY ORDERS: 
Article 1 
The proceedings are stayed. 
Article 2. 
Pursuant to Article 267(3) [TFEU], the following questions are referred to the 
Court of Justice of the European Union for a preliminary ruling: 
‘1 Having regard to Article 288 [TFEU], Articles 14 and 52 of the Charter of 
Fundamental Rights of the European Union, Articles 3, 7, 5, 11, 20, 34, 35 and 40 
of Directive 2016/801 of the European Parliament and of the Council of 11 May 
2016 on the conditions of entry and residence of third-country nationals for the 
purposes of research, studies, training, voluntary service, pupil exchange schemes 
or educational projects and au pairing (recast) and recitals 2 and 60 thereof, and to 
the principles of legal certainty and transparency, must the Member State’s power 
under Article [20(2)(f)] of Directive [2016/801] to refuse an application for 
residence be expressly provided for in its legislation in order to be used by that 
State? If so, must the serious and objective grounds be specified in its legislation? 
[2] Does the examination of an application for a visa for studies require the 
Member State to verify the foreign national’s wish and intention to study, even 
though Article 3 of Directive [2016/801] defines a student as one accepted by a 
higher education institution and though the grounds for refusal of the application 
set out in Article [20(2)(f) of that directive] are optional, not binding like those set 
out in Article [20(1)] of [that] directive? 
[3] Do Article 47 of the Charter of Fundamental Rights, the principle of 
effectiveness and Article [34(5)] of Directive 2016/801 require that the remedy 
provided for in national law against a decision rejecting an application for 
admission to the territory for study purposes allow the court to substitute its own 
assessment for that of the administrative authority and to review the decision of 
that authority, or is it sufficient to have a review of legality which allows the court 
to censure any illegality, particularly a manifest error of assessment, by setting 
aside the administrative authority’s decision?’ 
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[…] 
[Procedure]