Opinion of the Advocate General — ECLI:EU:C:2017:659
Date: 2017-09-07
Language of the case: Polish
Subject matter: Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (First Chamber), 13 December 2017 1. Border controls, asylum and immigration — Visa policy — Community Visa Code — Regulation No 810/2009 — Procedures and conditions for issuing uniform visas — Refusal of a visa — Appeal against that decision — Application of national procedural rules — Principle of procedural autonomy — Respect for the principles of equivalence and effectiveness (European Parliament and Council Regulation No 810/2009, Art. 32(3)) 2. Border controls, asylum and immigration — Visa policy — Community Visa Code — Regulation No 810/2009 — Procedures and conditions for issuing uniform visas — Refusal of a visa — Obligation for the Member States to lay down a procedure guaranteeing a judicial appeal against that decision (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 810/2009, Art. 32(3)) 1. See the text of the decision. (see paras 25-30) 2. 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, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, 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. It is for the referring court, which alone has jurisdiction to interpret its national law, to determine whether and to what extent the review system at issue in the main proceedings satisfies those requirements. In that connection, the national court must take account of the fact 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. Although it is true that in examining a visa application the national authorities have a broad discretion as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts, such discretion has no influence on the fact that the authorities directly apply a provision of EU law. 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. Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection, requires, in its first paragraph, that any person whose rights and freedoms guaranteed by EU law are violated should have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article (see, to that effect, judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 51 and the case-law cited). Furthermore, the second paragraph of Article 47 of the Charter provides that everyone is entitled to a hearing by an independent and impartial tribunal. It follows, as the Advocate General observed, in point 119 of his Opinion, that Article 47 of the Charter requires the Member States to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court. (see paras 31, 32, 36-39, 41, 42, operative part)