Opinion of the Advocate General — ECLI:EU:C:2020:679
Date: 2020-09-09
Language of the case: Dutch
Subject matter: Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
14 March 2019 
Referring court:  
Rechtbank Den Haag, zittingsplaats Haarlem (Netherlands) 
Date of the decision to refer:  
5 March 2019 
Applicant:  
R.N.N.S. 
Defendant:  
Minister van Buitenlandse Zaken 
  
Subject matter of the action in the main proceedings 
The dispute in the main proceedings concerns the refusal of a short-stay visa 
application on the ground that a Member State, after prior consultation in 
accordance with Article 22 of the Visa Code, raised an objection, and the possibly 
inadequate legal protection against that ground for refusal.  
Subject matter and legal basis of the request for a preliminary ruling 
The present request under Article 267 TFEU concerns, first, the question of the 
manner in which the refusal of a visa due to the objections of another Member 
State can be evaluated in an appeal against such a refusal, and whether that 
method of evaluation constitutes an effective remedy within the meaning of 
Article 47 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’) and, second, whether, in the circumstances of the present case, such a 
refusal demonstrates good administration within the meaning of Article 41 of the 
Charter.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-225/19 
 
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Questions referred 
1. In the case of an appeal as referred to in Article 32(3) of the Visa Code 
against a final decision refusing a visa on the ground referred to in 
Article 32(1)(a)(vi) of the Visa Code, can it be said that there is an effective 
remedy within the meaning of Article 47 of the EU Charter under the following 
circumstances:  
- where, in its reasons for the decision, the Member State merely stated: ‘you are 
regarded by one or more Member States as a threat to public policy, internal 
security, public health as defined in Article 2.19 or 2.21 of the Schengen Borders 
Code, or to the international relations of one or more Member States’; 
- where, in the decision or in the appeal, the Member State does not state which 
specific ground or grounds of those four grounds set out in Article 32(1)(a)(vi) of 
the Visa Code is being invoked;  
- where, in the appeal, the Member State does not provide any further substantive 
information or substantiation of the ground or grounds on which the objection of 
the other Member State (or Member States) is based?  
2. In the circumstances outlined in Question 1, can there be said to be good 
administration within the meaning of Article 41 of the EU Charter, in particular, 
because of the duty of the services concerned to give reasons for their decisions?  
3(a) Should Questions 1 and 2 be answered differently if, in the final decision on 
the visa, the Member State refers to an actual and sufficiently clearly specified 
possibility of appeal in the other Member State against the specifically named 
authority responsible in that other Member State (or Member States) that has (or 
have) raised the objection referred to in Article 32(1)(a)(vi) of the Visa Code, in 
which that ground for refusal can be examined? 
3(b) Does an affirmative answer to Question 1 in connection with Question 3(a) 
require that the decision in the appeal in and against the Member State that made 
the final decision be suspended until the applicant has had the opportunity to make 
use of the option of appealing in the other Member State (or Member States) and, 
if the applicant does make use of that option, until the (final) decision on that 
appeal has been obtained?  
4. For the purpose of answering the questions, does it matter whether (the 
authority in) the Member State (or Member States) that has (or have) objected to 
the issuing of the visa can be given the opportunity, in the appeal against the final 
decision on the visa, to act as second defendant and on that basis to be given the 
opportunity to introduce a substantiation of the ground or grounds on which its 
objection is based?  
R.N.N.S. 
 
3 
Provisions of EU law cited 
Charter of Fundamental Rights of the European Union: Articles 41 and 47.  
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): Articles 22 
and 32.  
Regulation (EC) No 767/2008 of the European Parliament of 19 July 2008 
concerning the Visa Information System (VIS) and the exchange of data between 
Member States on short-stay visas (VIS Regulation): Articles 38 to 40.  
Provisions of national law cited 
Algemene Wet Bestuursrecht (General Law on Administrative Law; ‘Awb’): 
Articles 1:2, 8:26, 8:28, 8:29, 8:31, 8:45. 
Brief summary of the facts and the procedure in the main proceedings 
1 The applicant has Egyptian nationality. On 9 June 2017 he lodged an application 
for a visa to visit his parents-in-law in the Netherlands. After prior consultation 
with other Member States as referred to in Article 22 of the Visa Code, the 
Netherlands representation in Amman, Jordan, refused the application. The 
reasons provided merely state: ‘you are regarded by one or more Member States 
as a threat to public policy, internal security, public health as defined in 
Article 2.19 or 2.21 of the Schengen Borders Code, or to the international 
relations of one or more Member States’.  
2 It appears from an internal document of the visa service that Hungary raised an 
objection. In 2015 the applicant applied for a short-stay visa in that country. That 
application was refused. The applicant made enquiries as to the reasons or 
background to the present objection at the Hungarian representations in the 
Netherlands, Cairo (Egypt) and Sofia (Bulgaria), but did not obtain any clarity. He 
was not even told which authority in Hungary had raised the objection.  
3 The applicant raised an objection to the refusal and subsequently brought 
proceedings before the rechtbank Den Haag (District Court, The Hague) which in 
visa cases adjudicates at first and sole instance.  
Main submissions of the parties to the main proceedings  
4 Under Article 22 of the Visa Code, Member States may require that they be 
consulted before a decision is taken on visa applications lodged by (specific 
categories of) nationals of specific third countries. If another Member State 
objects to the issuing of the visa, the Schengen visa will be refused on the basis of 
Article 32(1)(a)(vi) of the Visa Code. Such an objection to the issuing of a visa 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-225/19 
 
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relates to national reasons for considering the applicant to be a threat to public 
policy, internal security, public health or international relations. Under that article, 
the objection can also be based on an alert in a European data-sharing system such 
as the Visa Information System (‘VIS’) or the Schengen Information System 
(‘SIS’). However, there was no such alert relating to the applicant in a European 
system of that kind with a view to refusing him access.  
5 The question which arises in the main proceedings is whether and in what way the 
ground for refusal can be evaluated in the appeal against the final decision to 
refuse the visa and whether that evaluation method provides an effective remedy.  
6 The defendant argues that the fact that a Member State wishes to be consulted is 
confidential. Therefore, when deciding on a visa, he does not have to state that a 
Member State wished to be consulted. The consultation takes place via the VIS, 
but nothing is recorded in the VIS about the results of that consultation. Therefore, 
consulting the VIS does not make it possible to find out whether an objection was 
raised or what the content of that objection might have been. Furthermore, the 
defendant points out that the objection in the present case need not have been 
raised by the Hungarian visa authorities. The objection could also have been 
raised by a different Hungarian service. The defendant therefore does not know 
which Hungarian institution objected and for what reason. The defendant 
therefore did not have the option of changing the decision on the refusal during 
the objection procedure and that also applies to the Netherlands court in the 
present action. The defendant maintains that the applicant should look to the 
Hungarian authorities if he takes the view that they have registered his data 
inaccurately or unlawfully. The defendant is of the opinion that that state of affairs 
is not contrary to Article 47 of the Charter. 
7 The applicant argues that there is no question of effective legal protection here. 
Since the motives of the Hungarian authorities are unknown, he is confronted with 
a decision by the Netherlands against which he cannot marshal any substantive 
arguments. Moreover, his arguments against the ground for refusal are not being 
substantively evaluated in the appeal.  
Brief summary of the reasons for the referral 
8 In the case-law of this rechtbank, it has been assumed up to now, in more or less 
comparable situations, that an adequate judicial process was available in the other 
Member State for addressing the objection raised by that other Member State. 
However, in such cases there had also always been an entry in a European data-
sharing system such as the VIS. In other judgments, the rechtbank has ruled that 
such a judicial process did not exist or was inadequate.  
9 With regard to the question of whether there can be said to be adequate access to 
legal redress in the present case, it is first of all important that in the final decision 
the defendant did not state whether, and if so, how and in respect of which 
Hungarian authority, the objection to the issuing of a visa could be challenged. 
R.N.N.S. 
 
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Nor is any information supplied anywhere as to the court or tribunal before which 
the applicant can lodge an appeal in Hungary.  
10 In addition, Articles 38 to 40 of Regulation No 767/2008 (the VIS Regulation) 
provide that any person may request the competent authorities to correct 
inaccurate data and to delete data recorded unlawfully. A legal action must also be 
available for this purpose. In the present case, the refusal of a visa is not based on 
an entry in the VIS. Although the VIS Regulation is thus not directly applicable, it 
does show that inaccurate data that have been taken into account in a visa 
assessment process should be amenable to rectification. 
11 In view of that, the crux of the discussion is whether, in the final decision on the 
visa application, the other Member State’s objection to the issuing of a visa should 
be regarded as a fact that cannot be substantively evaluated in the appeal that an 
applicant may lodge under Article 32(3) of the Visa Code. In Netherlands 
administrative procedural law, a threat to public policy, internal security or public 
health, as has been put forward in the present case, can normally be substantively 
evaluated on appeal if it forms the basis for a refusal of, for example, a long-term 
residence permit. If another administrative body has established that that ground 
for refusal exists, an action at law, with adequate safeguards, should be available 
before that administrative body. Only then can the evaluation of the ground for 
refusal be withdrawn from the assessment in the appeal against the final decision, 
because adequate legal protection is provided elsewhere.  
12 For the time being, the referring court is of the opinion that such adequate legal 
protection can be said to exist only if the ground for refusal can also be examined 
substantively. If, in line with the defendant’s position, it is established that the 
ground for refusal cannot be evaluated in the present appeal, then adequate legal 
protection is wanting. According to the referring court, the judgment of the Court 
of Justice of the European Union (‘the Court of Justice’) that the visa authorities 
have a wide discretion in the examination of a visa application to ascertain 
whether a ground for refusal can be applied (judgment of 19 December 2013, 
Koushkaki, C-84/12, EU:C:2013:862), does not provide any justification, in the 
light of Article 47 of the Charter, for excluding the evaluation of a ground for 
refusal entirely from an assessment on appeal.  
13 In the present case, it is unclear whether the Hungarian authorities, by reason of 
their objection to the issuing of a visa on the grounds of public policy, internal 
security, public health or international relations, have taken a decision against 
which remedies with adequate guarantees are or have been available and which 
the applicant actually can make use of or could have made use of. The defendant 
did not provide any information in that regard in the final decision. In the present 
proceedings, that works to the disadvantage of the applicant. According to the 
referring court, having regard to the principle of sound administration enshrined in 
Article 41 of the Charter and the principle of effective legal protection enshrined 
in Article 47 of the Charter, it is not true that that uncertainty or lack of clarity on 
the existence of an option to appeal operates to the disadvantage of the applicant.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-225/19 
 
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14 The referring court acknowledges that the applicant himself possibly has or may 
have more information about the previously submitted visa application. That does 
not alter the fact that in the present case the defendant, whether or not in 
cooperation with Hungary, may be expected to provide the rechtbank with 
adequate information in that regard. Only then will the rechtbank be in a position 
fully to assess the appeal, so that it could be said that there is an effective remedy. 
The rechtbank further notes that it cannot be inferred from the mere fact that 
Hungary has previously refused the applicant a visa that he is a threat to public 
policy, internal security, public health or international relations.  
15 If the applicant were compelled to rely on a legal remedy against Hungary's 
objection in Hungary, the question arises whether the present action should await 
the outcome of that Hungarian appeal (if it is still available), because the final 
decision depends on it. This viewpoint is supported by the fact that, according to 
the referring court, an effective remedy can be said to exist only if the applicant 
has raised or was able to raise the question in Hungary or the Netherlands as to 
whether the objection was properly raised.  
16 There is the question, however, of whether the reference to a proceedings in 
another country is in accordance with the one-stop principle (set out in, inter alia, 
recital 7 of the Visa Code) and the principle that decisions on visa applications 
should be taken as quickly as possible. If legal proceedings must first take place 
elsewhere, the present appeal could become more complex and lengthy and 
therefore less effective. That would strengthen the case for a substantive 
evaluation of Hungary's objection in the present proceedings. However, the 
defendant and the Hungarian authority that raised the objection would then indeed 
have to provide the rechtbank with the necessary information about the ground for 
refusal.  
17 The defendant also referred to the judgment of the Court of Justice of 23 October 
2014, Unitrading, C-437/13, EU:C:2014:2318. In that case, the Court held, in 
essence, that Article 47 of the Charter does not stand in the way of proof based on 
an investigation by a third party about which that third party refuses to disclose 
further information, which makes it difficult or impossible to disprove the 
conclusions of that investigation, provided that the principles of effectiveness and 
equivalence are upheld. The Court of Justice proceeded on the assumption that the 
parties were in a position to provide proof to the contrary by substantiating their 
arguments with other evidence and that they could thus refute the investigation 
results of a third party presented as evidence.  
18 The referring court has doubts as to whether the objection raised by another 
Member State to the issuing of a visa can also be regarded as such evidence based 
on an investigation by third parties. Moreover, it is not clear in the present case 
what Hungary’s objection entails and on what facts it is based. Therefore, even if 
Hungary's objection could be regarded as evidence, the applicant cannot adduce 
useful evidence against it. The referring court is therefore of the view that the 
Unitrading judgment is not relevant in the present case.