Judgment;Summary — ECLI:EU:C:2021:186
Date: 2021-03-10
Language of the case: Polish
Court formation: First Chamber
Subject matter: Immigration and asylum policy;Principles, objectives and tasks of the Treaties;Approximation of laws;Public health;Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation  C-949/19 — 1 
Case C-949/19 
Request for a preliminary ruling 
Date lodged: 
31 December 2019 
Referring court: 
Naczelny Sąd Administracyjny (Supreme Administrative Court, 
Poland) 
Date of the decision to refer: 
4 November 2019 
Applicant: 
M. A. 
Defendant: 
Konsul Rzeczypospolitej Polskiej in N. 
  
[…] 
ORDER 
4 November 2019 
Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) […] 
[…] 
having examined on 4 November 2019 
[…] 
the appeal in cassation brought by M. A. 
against the decision of the Wojewódzki Sąd Administracyjny w Warszawie 
(Regional Administrative Court, Warsaw, Poland) 
of 12 March 2019 […] to dismiss the appeal 
EN 
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lodged by M. A. 
against the decision of the Konsul Rzeczypospolitej Polskiej (Consul of the 
Republic of Poland) in N. 
of […] July 2018, No […] 
regarding refusal to issue a visa 
makes the following order: 
1. to refer the following question to the Court of Justice of the European Union 
for a preliminary ruling: Must Article 21(2a) of the Convention implementing the 
Schengen Agreement of 14 June 1985 between the Governments of the States of 
the Benelux Economic Union, the Federal Republic of Germany and the French 
Republic on the gradual abolition of checks at their common borders […] in 
conjunction with the first paragraph of Article 47 of the Charter of Fundamental 
Rights of the European Union […] be interpreted as meaning that a third-country 
national who has been refused a long-stay visa and who cannot exercise the right 
to move freely within the territories of the other Member States under 
Article 21(1) of the Convention implementing the Schengen Agreement must have 
the right to an effective remedy before a tribunal? 
2. […] stay the proceedings until such time as the above question referred for a 
preliminary ruling has been answered. [Or. 1] 
STATEMENT OF REASONS 
1. Legal framework 
The legal framework encompasses the provisions of EU and national law on the 
right to bring an appeal against the decision of a consul refusing to issue a national 
visa. 
1.1. Provisions of EU law 
Article 47(1) of the Charter of Fundamental Rights of the European Union (‘the 
Charter’): 
‘Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article.’ 
Article 18 of the Convention implementing the Schengen Agreement of 14 June 
1985 between the Governments of the States of the Benelux Economic Union, the 
Federal Republic of Germany and the French Republic on the gradual abolition of 
checks at their common borders (OJ 2000 L 239, p. 19; ‘the Convention 
implementing the Schengen Agreement’): 
M. A. 
 
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‘1. Visas for stays exceeding three months (long-stay visas) shall be national visas 
issued by one of the Member States in accordance with its national law or Union 
law. Such visas shall be issued in the uniform format for visas as set out in 
Council Regulation (EC) No 1683/95 with the heading specifying the type of visa 
with the letter “D”. They shall be filled out in accordance with the relevant 
provisions of Annex VII to 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). 
2. Long-stay visas shall have a period of validity of no more than one year. If a 
Member State allows an alien to stay for more than one year, the long-stay visa 
shall be replaced before the expiry of its period of validity by a residence permit.’ 
Article 21(1) of the Convention implementing the Schengen Agreement: [Or. 2] 
‘Aliens who hold valid residence permits issued by one of the Member States 
may, on the basis of that permit and a valid travel document, move freely for up to 
three months in any six-month period within the territories of the other Member 
States, provided that they fulfil the entry conditions referred to in Article 5(1)(a), 
(c) and (e) of Regulation (EC) No 562/2006 of the European Parliament and of the 
Council of 15 March 2006 establishing a Community Code on the rules governing 
the movement of persons across borders (Schengen Borders Code) and are not on 
the national list of alerts of the Member State concerned.’ 
Article 21(2a) of the Convention implementing the Schengen Agreement: 
‘The right of free movement laid down in paragraph 1 shall also apply to aliens 
who hold a valid long-stay visa issued by one of the Member States as provided 
for in Article 18.’ 
1.2. Provisions of national (Polish) law 
Article 75 of the ustawa z dnia 12 grudnia 2013 r. o cudzoziemcach (Law of 
12 December 2013 on foreigners) (Dz.U. of 2018, item 2094, as amended; ‘the 
Law on Foreigners’): 
‘1. A refusal to issue a national visa shall be made by way of a decision. 
2. A decision on refusal to issue a national visa shall be delivered using a form.’ 
Article 76 of the Law on Foreigners: 
‘1. A decision on refusal to issue a Schengen visa or a national visa by: 1) a 
consul — may be challenged by a request for a review of the case by that 
authority; …’ 
Article 5 of the ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniu przed 
sądami administracyjnymi (Law of 30 August 2002 on proceedings before the 
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administrative courts) (Dz.U. of 2018, item 1302, as amended; ‘the Law on 
Proceedings before the Administrative Courts’): 
‘The administrative courts shall not have jurisdiction in cases concerning: … 
4) visas issued by consuls, other than visas: [Or. 3] 
a) referred to in Article 2(2) to (5) 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, as amended), 
b) issued to a foreign national who is a member of the family of a national of a 
Member State of the European Union, a Member State of the European Free Trade 
Association (EFTA) — party to the European Economic Area Agreement, or the 
Swiss Confederation, within the meaning of Article 2(4) of the ustawa z dnia 14 
lipca 2006 r. o wjeździe na terytorium Rzeczypospolitej Polskiej, pobycie oraz 
wyjeździe z tego terytorium obywateli państw członkowskich Unii Europejskiej i 
członków ich rodzin (Law of 14 July 2006 on the entry into, residence in and 
departure from the Republic of Poland of nationals of the Member States of the 
European Union and the members of their families) (Dz.U. of 2017, item 900, and 
of 2018, item 650). 
…’ 
Article 58(1) of the Law on Proceedings before the Administrative Courts: ‘The 
court shall dismiss an action: where the case does not come within the jurisdiction 
of an administrative court …’ 
2. Facts of the case 
2.1. Procedure before the consul 
On … July 2018, M. A. (‘the applicant’) applied to the Consul of the Republic of 
Poland (‘the Consul’) for a national visa, citing a desire to undertake two-year 
second-cycle studies in Poland. By his decision of … July 2018, the Consul 
refused to issue a national visa. After examining the applicant’s request for the 
case to be reviewed, on … July 2018 the Consul once again refused to issue a visa 
on the ground that the applicant had failed to justify the purpose or conditions of 
his planned stay. 
2.2. Proceedings before the administrative courts 
2.2.1. The applicant appealed against the Consul’s decision refusing to issue a 
national visa before the Wojewódzki Sąd Administracyjny (Regional 
Administrative Court) in Warsaw, Poland (the court of first instance). In justifying 
the admissibility of appealing against such a decision before an administrative 
court, the applicant referred, inter alia, to the judgment of the Court of Justice of 
M. A. 
 
5 
the European Union of 13 December 2017, El Hassani, C-403/16 
(EU:C:2017:960). The applicant submitted that the operative part of the judgment 
could [Or. 4] also be applied to the case at issue, since there is similarity in fact 
and in law. 
In response to the appeal, the Consul submitted that it should be dismissed on the 
ground that the administrative court lacked jurisdiction. 
2.2.2. By its decision of 12 March 2019 […], the court of first instance dismissed 
the appeal. 
The court of first instance found that the case did not fall within the jurisdiction of 
an administrative court. Citing Article 5(4) of the Law on Proceedings before the 
Administrative Courts, in the version in force on the date on which the contested 
decision was issued, the court held that the decision refusing a national visa was 
not covered by the exceptions set out in that provision and therefore could not be 
reviewed by an administrative court. So far as concerns the judgment of the Court 
of Justice of 13 December 2017, El Hassani, C-403/16, referred to in the 
application, the court held that that judgment concerned a Schengen visa, whereas 
in the present case the applicant had applied for a national visa, which is issued in 
accordance with national law. 
2.2.3. In the appeal in cassation against the above decision, it was alleged that 
procedural rules that could have a significant impact on the outcome of the case, 
namely Article 58(1)(1) of the Law on Proceedings before the Administrative 
Courts, had been infringed due to the erroneous assumption that the Consul’s 
decision refusing a national visa was not subject to judicial review and, 
consequently, due to the unjustified dismissal of the appeal against the Consul’s 
decision. At the same time, the applicant indicated that the doubts raised in this 
regard needed to be considered by the Court of Justice of the European Union. 
2.2.4. In his reply to the appeal in cassation, the Consul submitted that the appeal 
should be dismissed given the wording of Article 5(4) of the Law on Proceedings 
before the Administrative Courts, which, following an amendment taking into 
account the judgment of the Court of Justice in El Hassani, C-403/16, provides for 
the possibility to lodge an appeal before an administrative court against the refusal 
to issue a Schengen visa, and not a national visa. The Consul emphasised that the 
provisions of the Visa Code do not apply to national visas, the procedure for the 
granting of which is determined by national law. Citing the judgment of the 
Naczelny Sąd Administracyjny (Supreme Administrative Court) of 22 January 
2014 […], the Consul indicated that the two legal orders should not be confused. 
The decision to refuse a visa referred to in Article 32(3) of the Visa Code should 
therefore be understood solely as a decision to refuse a visa within the meaning of 
the Visa Code. This interpretation is in line with the case-law of the Court of 
Justice. In its judgment of 7 March 2017, X and X, C-638/16 [Or. 5] PPU 
(EU:C:2017:173, paragraphs 40 to 47), the Court ruled that since no measure had 
been adopted, to date, by the EU legislature on the basis of Article 79(2)(a) of the 
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Treaty on the Functioning of the European Union (‘TFEU’), with regard to the 
conditions governing the issue by Member States of long-term visas and residence 
permits to third-country nationals on humanitarian grounds, the applications at 
issue in the main proceedings fell solely within the scope of national law. The 
situation at issue in the main proceedings was not, therefore, governed by EU law. 
3. Grounds for the reference 
3.1. Admissibility of the question referred 
The Naczelny Sąd Administracyjny (Supreme Administrative Court) is a national 
court whose rulings are not subject to appeal under Polish law for the purpose of 
the third sentence of Article 267 TFEU. Referral of the question is justified by 
doubts concerning the correct interpretation of the provisions of EU law which 
must be dispelled in order to properly resolve the dispute pending before the 
national court. 
3.2. Grounds for the reference 
3.2.1. Pursuant to Article 3(2)(4) of the ustawa z 14 czerwca 1960 r. Kodeks 
postępowania administracyjnego (Law of 14 June 1960 — Code of Administrative 
Procedure) (Dz. U. of 2018, item 2096, as amended; ‘the Code of Administrative 
Procedure’), the provisions of that code do not apply to proceedings in matters 
falling within the competence of Polish diplomatic missions and consular posts, 
unless specifically provided otherwise. The proceedings before the Consul with 
regard to the issuing of a national visa were conducted in accordance with the 
provisions of the ustawa z dnia 25 czerwca 2015 r. Prawo konsularne (Law of 
25 June 2015 — Consular Law) (Dz. U. of 2017, item 1545, as amended; ‘the 
Consular Law’). Article 88 of the Consular Law provides that a party may appeal 
against a consul’s decision to a higher authority, whereas according to Article 94 
of that Law, in the cases provided for in specific provisions, the party may request 
a review of the case by the consul, which must be submitted within 14 days of the 
date of service on that party of the decision. One such specific provision is 
Article 76(1)(1) of the Law on Foreigners, which states that a decision on refusal 
to issue a Schengen visa or a national visa rendered by a consul may be 
challenged by a request for a review of the case by that authority. After reviewing 
the case, the consul issues a decision which is final and cannot [Or. 6] be 
appealed to another administrative authority, and in the case of a national visa, 
cannot be appealed to a court. 
3.2.2. In the case under consideration, judicial review was excluded on the basis 
of Article 5(4) of the Law on Proceedings before the Administrative Courts, 
according to which administrative courts lack jurisdiction over cases relating to 
visas issued by consuls. The Law provides for exceptions in this regard. 
It follows from Article 5(4b) of the Law on Proceedings before the Administrative 
Courts that a foreign national who is a member of the family of a national of a 
M. A. 
 
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Member State of the European Union, a Member State of the European Free Trade 
Association (EFTA) — party to the European Economic Area Agreement, or the 
Swiss Confederation, within the meaning of Article 2(4) of the Law on entry into 
the Republic of Poland, may bring an appeal before an administrative court 
against a consul’s decision refusing to issue a visa. 
As a result of taking the judgment of the Court of Justice of 13 December 2018, El 
Hassani, into account, Article 5(4a) of the Law on Proceedings before the 
Administrative Courts entered into force on 4 March 2019. This grants the right to 
bring an action before a court also when the consul’s decision concerns a visa as 
defined in Article 2(2) to (5) of the Visa Code, that is, a Schengen visa. 
However, that amendment does not apply to the refusal at issue in the main 
proceedings. Under national legislation, a consul’s decision refusing to issue a 
national (long-stay) visa to a foreign national cannot be subject to judicial review. 
3.2.3. In the view of the referring court, the question of the admissibility of 
excluding the possibility to challenge such a refusal in proceedings before a court, 
as provided for in national administrative court procedure, must be assessed in the 
light of the guidelines arising from EU law. 
However, the national court is not certain whether EU law requires the same level 
of protection for national (long-stay) visas as that provided for in relation to 
Schengen visas under the aforementioned El Hassani judgment. 
That uncertainty arises, first and foremost, from the different regulation under EU 
law of the rights of foreign nationals to challenge refusal decisions as regards 
various types of visas. As is clear from the El Hassani judgment, the obligation to 
provide under national law for the possibility to challenge before a court a final 
decision [Or. 7] refusing to issue a visa results from the principle of effective 
judicial protection laid down in Article 47 of the Charter. The Court has expressly 
stated that the provisions of the Charter are applicable where a Member State 
adopts a decision refusing to issue a visa under Article 32(1) of the Visa Code. 
The procedure for issuing long-stay visas, unlike Schengen visas, is not regulated 
by any act of EU law. As the Court has clearly indicated, since no binding 
measure has been adopted by the EU legislature on the basis of Article 79(2)(a) 
T[F]EU, national law is to apply to the processing of applications for the issue of 
long-term visas and residence permits to [third-country nationals] on humanitarian 
grounds (see the judgment in X and X, paragraph 44).  
However, in the view of the referring court, the position expressed by the Court 
does not unequivocally dispel the uncertainty as to whether, in relation to national 
visas, it is permissible to exclude observance of the scope of judicial protection 
arising from Article 47 of the Charter. 
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3. 3. Reasons for the referring court’s uncertainty 
3.3.1. The referring court’s uncertainty concerns the interpretation of 
Article 21(2a) of the Convention implementing the Schengen Agreement, in 
conjunction with the first paragraph of Article 47 of the Charter, as regards 
whether it establishes a right to an effective remedy before a tribunal in the event 
that a consul refuses to issue a national visa. Under Article 45(2) of the Charter, 
the right of free movement may be granted to a third-country national residing 
legally in the territory of a Member State. That right is conferred by Article 21(2a) 
of the Convention implementing the Schengen Agreement on persons holding a 
valid long-stay visa. The Convention implementing the Schengen Agreement 
forms part of the Schengen acquis and is a source of individual rights. The 
exercise of freedom of movement is conditional upon obtaining a long-stay visa. 
A decision refusing to issue a long-stay visa renders it impossible to exercise the 
right to free movement within the Schengen Area under EU law. According to the 
first paragraph of Article 47 of the Charter, everyone whose rights and freedoms 
guaranteed by the law of the Union are violated has the right to an effective 
remedy before a tribunal. [Or. 8] 
3.3.2. Member States are obliged, as part of the principle of effective judicial 
protection, to ensure the protection of individual rights derived from EU law, 
including effective access to court, but acting under the principle of the procedural 
(institutional) autonomy of Member States. The procedural autonomy of Member 
States is understood as the competence of a Member State to regulate the 
jurisdiction of the courts and (judicial) procedures for examining claims based on 
EU law, subject to observance of the principles of equivalence and effectiveness 
(see judgments of the Court of 16 December 1976, Rewe, 33/76, EU:C:1976:188; 
and Comet, 45/76, EU:C:1976:191). The margin of discretion available to 
Member States in a particular case to define the principles and procedure for 
protecting rights derived from EU law is further affected by the obligation to 
observe the first paragraph of Article 47 of the Charter. In laying down a standard 
of protection, it is not possible to ignore the position of the Court of Justice which 
highlights the principle of effective judicial protection as a general principle of EU 
law stemming from the constitutional traditions common to the Member States 
and which has been enshrined in Articles 6 (Right to a fair trial) and 13 (Right to 
an effective remedy) of the European Convention for the Protection of Human 
Rights and Fundamental Freedoms (see judgment of the Court of 13 March 2007, 
C-432/05, Unibet, EU:C:2007:163, paragraph 37). As is clear from the El Hassani 
judgment, C-403/16, the obligation to observe the principle of effective judicial 
protection laid down in Article 47 of the Charter also applies to the procedural 
rules relating to the possibility of challenging before a national court a decision 
refusing to grant a Schengen visa. 
The obligation to observe Article 47 of the Charter in the case under consideration 
may be justified by the content of Article 21(2a) of the Convention implementing 
the Schengen Agreement, which grants freedom of movement to foreign nationals 
holding a long-stay (national) visa. A national visa is one of the possible means 
M. A. 
 
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that a foreign national can exercise the right to free movement, and understood in 
this way, is not significantly different from the exercise of that right on the basis 
of a Schengen visa granted to a third-country national. In the view of the referring 
court, the existing differences between the detailed aspects of the principles, 
conditions and procedures for granting national visas and Schengen visas do not 
alter the fact that both those types of visas concern the exercise of the same right 
that a foreign national derives from EU law. The fact that it is not possible [Or. 9] 
to challenge before a court a final decision refusing to grant a national visa may 
therefore infringe EU law, in particular the right to an effective remedy before a 
tribunal as set out in the first paragraph of Article 47 of the Charter. This situation 
means that the level of legal protection depends on the type of visa the foreign 
national applies for, even though each type of visa entitles its holder to move 
freely within the territory of the Member States. The referring court therefore has 
doubts as to whether this might lead to discrimination against third-country 
nationals applying for national visas. 
In the opinion of the referring court, in view of the aforementioned need to ensure 
adequate judicial protection of rights derived from EU law, it could be argued that 
an analogous level of protection should be ensured in the case of a decision 
refusing a national visa. 
However, the national court is uncertain as to whether this position is correct 
given the significant differences in the definition of the procedural rules for 
issuing Schengen visas and national visas. 
4. Position of the national court 
In the opinion of the national court, the wording of Article 21(2a) of the 
Convention implementing the Schengen Agreement, in conjunction with the first 
paragraph of Article 47 of the Charter, seems to indicate the need to ensure that a 
foreign national applying for a national visa has the right to appeal against a 
decision refusing the visa to a competent court. 
However, given that this issue has not been unequivocally resolved in the case-
law of the Court of Justice, an answer to the question referred for a preliminary 
ruling is required for the purposes of assessing whether the indicated position of 
the referring court is correct. 
5. Conclusion 
The doubts raised in relation to the interpretation of Article 21(2a) of the 
Convention implementing the Schengen Agreement, in conjunction with 
Article 47 of the Charter, justify referring a question to the Court of Justice for a 
preliminary ruling under the third sentence of Article 267 TFEU. A ruling on the 
correct interpretation of the above provisions will determine the possibility of 
assessing the alleged infringement of Article 58(1)(1) of the Law on Proceedings 
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before the Administrative Courts set out in the appeal in cassation. A preliminary 
ruling by the Court of Justice is thus [Or. 10] indispensable for the resolution of 
the proceedings pending before the national court. 
6. Stay of administrative court proceedings 
[…]