Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered
on 16 April 2026 (1)
Case C‑254/25
A.A.
v
Wojewoda Śląski
(Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gliwicach (Provincial
Administrative Court, Gliwice, Poland))
( Reference for a preliminary ruling – Immigration policy – Conditions of entry and residence of third-country nationals for the purposes of studies – Directive
(EU)
2016/801 – Procedural safeguards – Suspension of time limits for handling applications for authorisation submitted by third-country nationals – Right to an effective remedy – Principle of equivalence )
Introduction
1.        This request for a preliminary ruling was made by the Wojewódzki Sąd Administracyjny w Gliwicach (Provincial
Administrative Court, Gliwice, Poland) in proceedings between A.A. (‘the applicant’), a third-country national, and the Wojewoda Śląski (Provincial
Governor of Silesia, Poland) (‘the Provincial Governor’). The context of the dispute in the main proceedings is that of the invasion of Ukraine by the Russian Federation in February 2022, following which Poland experienced a significant influx of displaced persons. The Polish legislature adopted provisions intended, first, to suspend the time limits for handling applications for residence permits, inter alia for study purposes, and, second, to preclude the application of the national rules on the competent authority’s failure to act, such that a financial penalty cannot be imposed on that authority for non-compliance with the time limits prescribed for
adopting a decision.
2.        The case in the main proceedings concerns the failure to adopt a decision, within the prescribed time limits, on the application for temporary residence for study purposes made by a third-country national, and the impossibility of bringing an action to challenge the slowness of the public administrative bodies or of obtaining adequate financial compensation. The case therefore invites the Court to assess, in the light of EU law, the exclusion by the relevant national legislation of the possibility, provided for under
national law, of third-country nationals bringing an action for a declaration of the Polish administrative authorities’ slowness in handling an application for the grant of a temporary residence permit for study purposes and of, first, ordering payment of an appropriate amount by way of compensation for infringement of the right to the public authority acting without undue delay and, second, requiring a decision to be taken within a time limit set by the court.
3.        That assessment will be made in particular in the light of Article 34 of Directive (EU) 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 (2) and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
Legal context
European Union law
The Charter
4.        Article 47 of the Charter, headed
‘Right to an effective remedy and to a fair trial’, is relevant in the present case.
Directive 2016/801
5.        Article 5 of Directive 2016/801, headed
‘Principles’, provides, in paragraphs 1 and 3 thereof:
‘1.      The admission of a third-country national under this Directive shall be subject to the verification of documentary evidence attesting that the third-country national meets:
(a)      the general conditions laid down in Article 7; and
(b)      the relevant specific conditions in Article[s] 8, 11, 12, 13, 14 or 16.
…
3.      Where all the general conditions and relevant specific conditions are fulfilled, the third-country national shall be entitled to an authorisation.
Where a Member State issues residence permits only on its territory and all the admission conditions laid down in this Directive are fulfilled, the Member State concerned shall issue the third-country national with the requisite visa.’
6.        Article 34 of that directive, headed
‘Procedural guarantees and transparency’, provides:
‘1.      The competent authorities of the Member State concerned shall adopt a decision on the application for an authorisation or a renewal of it and notify the decision to the applicant in writing, in accordance with the notification procedures under national law, as soon as possible but not later than 90 days from the date on which the complete application was submitted.
…
3.      Where the information or documentation supplied in support of the application is incomplete, the competent authorities shall notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. The period referred to in [paragraph 1] shall be suspended until the competent authorities have received the additional information required. If additional information or documents have not been provided within the deadline, the application may be rejected.
…
5.      Any decision declaring inadmissible or rejecting an application, refusing renewal, or withdrawing an authorisation shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification shall specify the court or administrative authority with which an appeal may be lodged and the time limit for lodging the appeal.’
Implementing Decision 2022/382
7.        Under recitals 3 and 7 of Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, (3) the invasion of Ukraine by the Russian Federation, condemned by the European Council on 24 February 2022, led to a mass influx of displaced persons from Ukraine who are unable to return to their country or region of origin, and the scale of that influx is likely to mean that the Member States’ asylum systems are unable to process the arrivals without adverse effects on their efficient operation as well as on the interests of the persons concerned and of other persons requesting protection.
Implementing Decision 2024/1836
8.        Under recitals 7 and 8 of Council Implementing Decision (EU) 2024/1836 of 25 June 2024 extending temporary protection as introduced by Implementing Decision (EU) 2022/382, (4) the continuation of the war, the difficult humanitarian conditions, the instability and the risk of escalation mean that further arrivals on a large scale cannot be excluded and the risk to the efficient operation of the national asylum systems persists, such that it is necessary to extend temporary protection in order to provide for immediate protection and a harmonised set of rights with reduced formalities, and to prevent the cessation of the scheme from resulting in applications for international protection being lodged simultaneously and en masse such that those systems may be overwhelmed.
Polish law
Law of 12 March 2022
9.        The ustawa o pomocy obywatelom Ukrainy w związku z konfliktem zbrojnym na terytorium tego państwa (Law on assistance to nationals of Ukraine in connection with armed conflict in the territory of that country) of 12 March 2022 (5) was adopted following Implementing Decision 2022/382. That law lays down the specific rules governing the regularisation of the residence
of the Ukrainian nationals who have arrived in Poland. The consolidated text of that law, (6) taking into account the amendments made since its adoption, contains Article 100d, which is applicable to the facts at the origin of the dispute in the main proceedings and provides as follows:
‘1.      Until 30 September 2025, the time limits for handling matters relating to:
(1)      the grant to foreign nationals of:
(a)      a temporary residence permit,
(b)      a permanent residence permit,
(c)      a long-term resident’s EU residence permit,
(2)      the amendment of:
(a)      a temporary residence permit
and work permit,
(b)      a temporary residence permit
to take up highly qualified employment,
(3)      the withdrawal from foreign nationals of:
(a)      a temporary residence permit,
(b)      a permanent residence permit,
(c)      a long-term resident’s EU residence permit,
– shall not start to run, and time limits that have started to run shall be suspended, for that period in procedures conducted by the Provincial
Governor.
2.      Acts performed during the period referred to in paragraph 1, in the context of the procedures referred to in paragraph 1, shall be effective.
3.      During the period referred to in paragraph 1:
(1)      the provisions relating to the failure to act of the authority responsible for the procedure in the cases referred to in paragraph 1 and to its duty to inform the party to or participant in the procedure that the matter has not been handled within the time limits shall not apply;
(2)      the authority responsible for the procedure in the cases referred to in paragraph 1 shall not be liable to a fine, nor shall any monetary sums be awarded against it in favour of applicants, for failure to adopt a decision within the time limits prescribed by law.
4.      The cessation of actions by the authority responsible for the procedure in the cases referred to in paragraph 1, or the performance of such actions with delay, during the period referred to in paragraph 1, shall not constitute grounds for pursuing legal remedies against a failure to act, the excessive length of the procedure, or infringement of a party’s right to have his or her case examined without undue delay.’
10.      Article 100d of the Law of 12 March 2022 entered into force on 1 January 2023 and has been amended on multiple
occasions, with the end date of the suspension of the time limits having been set, respectively, as 24 August 2023, 4 March 2024 and then 30 June 2024. That article replaced
Article 100c of the same law, which was applicable until 31 December 2022.
Law on foreign nationals
11.      Article 3 of the ustawa o cudzoziemcach (Law on foreign nationals) of 12 December 2013 (7) states:
‘For the purposes of this Law, the following definitions shall apply:
…
(2)      “foreign national” means a person who is not of Polish nationality;
…’
12.      Article 112a of the Law on foreign nationals provides:
‘1.      A decision on the grant of a temporary residence permit
to a foreign national shall be adopted within 60 days.
2.      The period referred to in paragraph 1 shall start to run from the date on which the last of the following events occurred:
(1)      the foreign national has lodged an application for a temporary residence permit
in person or attended the office of the Provincial
Governor in person after lodging that application, unless the requirement
to attend in person does not apply to the foreign national; or
(2)      the foreign national has lodged an application for a temporary residence permit which is free from
formal defects, or such defects have been remedied; or
(3)      the foreign national has produced the documents referred to in point 2 of Article 106(2) or the time limited referred to in Article 106(2a), set by the Provincial
Governor, has expired.
3.      In the case of the procedure for the grant of a temporary residence permit, referred to in Article 139a(1) and Article 139o(1), the time limit referred to in paragraph 1 shall start to run from the date on which the last of the following events occurred:
(1)      the host entity has lodged an application for a temporary residence permit, referred to in Article 139a(1) or Article 139o(1), which is free from formal defects, or such defects have been remedied; or
(2)      the host entity has produced the documents referred to in point 2 of Article 106(2) or the time limit referred to in Article 106a(3), set by the Provincial
Governor, has expired.
4.      The appeal procedure in cases concerning the grant of a temporary residence permit
to a foreign national shall be concluded
within 90 days.
5.      Where the appeal does not satisfy the requirements laid down by law, the period referred to in paragraph 4 shall start to run from the date on which the deficiencies are remedied.’
Law on the Code of procedure before the administrative courts
13.      Article 53(2b) of the ustawa – Prawo o postępowaniu przed sądami administracyjnymi (Law on the Code of procedure before the administrative courts) of 30 August 2002 (8) states:
‘An action for failure to act or to challenge the excessive duration of the procedure may be brought at any time after a reminder has been submitted to the competent authority.’
14.      Article 149 of that law provides:
‘1.      Where the court
upholds an action for failure to act or challenging the excessive duration of the procedure conducted by the authorities in the cases referred to in points 1 to 4 of Article 3(2), or an action challenging the excessive duration of the procedure in the cases referred to in point 4a of Article 3(2), it shall:
(1)      order
the authority to issue an act or an individual interpretation or to perform an action within a specified time limit;
(2)      order
the authority to determine or recognise a
right or obligation arising from provisions of
law;
(3)      declare
that the authority has failed to act or was responsible for the excessive duration of the procedure.
1a.      The court shall determine whether the authority’s failure to act or the excessive duration of the procedure conducted by the authority constitutes a flagrant breach of law.
1b.      In the case referred to in points 1 and 2 of paragraph 1 above, the court may also determine whether or not a right or obligation exists, where the nature of the case so permits and the points of fact and of law are beyond reasonable doubt.
2.      In the case referred to in paragraph 1 above, the court may also, of its own motion or at the request of a party, impose a fine on the authority in the amount stipulated in Article 154(6), or order that authority to pay a sum of money not exceeding one half of the amount stipulated in Article 154(6).’
15.      Under Article 153 of that law:
‘The legal assessment and the recommendations as to the further procedure contained in the judgment of the court shall be binding both on the authorities whose action, failure to act or protracted conduct of the procedure was the subject of the action, and on the courts, save where the legislative provisions have been amended.’
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
16.      On 17 April 2024, the applicant, a third-country national, submitted to the Provincial
Governor an application for a temporary residence permit
in order to undertake university studies in Poland. The authority
failed to adopt
a decision within the time limit laid down by national law and the applicant therefore filed a reminder with the Provincial
Governor on 25 October 2024.
17.      On 22 November 2024, as a decision still had not been taken on his application, the applicant brought an action for a declaration of failure to act against that authority before the Wojewódzki Sąd Administracyjny w Gliwicach (Provincial
Administrative Court, Gliwice), which is the referring court. In his action, the applicant argued
that the Provincial
Governor had manifestly exceeded the time limit for handling the application for a temporary residence permit, claiming that the administrative authority should be ordered to issue that permit
within 14 days and pay him compensation
or, in the alternative, a fine.
18.      In its defence, the Provincial
Governor contended that the action should be dismissed, relying inter alia on Article 100d of the Law of 12 March
2022. In accordance with that article, the time limits for handling applications in the procedures conducted by the Provincial
Governor start to run only from 30 September 2025 or are suspended until that date, as justified by the successive increases in the number of applications for a residence permit
following the Russian Federation’s aggression against Ukraine on 24 February 2022. The end of that suspension was initially set for 31 December 2022, but has been extended multiple
times. The Provincial
Governor also observed that Article 100d of the abovementioned law provides that, until 30 September 2025, the provisions relating to the authority’s failure to act and to its duty to inform the party concerned that the matter will not be dealt with within the time limit specified are not applicable, and that a fine may not be imposed and compensation may not be awarded in favour of applicants where
there has been a failure to comply with the time limits prescribed by law.
19.      Having doubts as to the compatibility with EU law of that suspension of time limits and of the impossibility of third-country nationals seeking
an effective remedy against
the public authorities’ failure to act, the Wojewódzki Sąd Administracyjny w Gliwicach (Provincial
Administrative Court, Gliwice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Do the Treaty principles of:
(a)      the rule of law and respect for human rights ([Article] 2 and [Article] 6(3) [TEU]);
(b)      proportionality (Article 52(1) of the [Charter], in conjunction with Article 51(1) thereof, and in conjunction with Article 6(1) TEU);
(c)      the primacy of EU law and its effectiveness (Article 4(3) TEU); and
(d)      the “right to good administration” (regarded as a principle of the European Union – Article 41(1) to (4) of the Charter, in conjunction with Article 51(1) thereof, Article 6(1) TEU and stemming from the case-law of the Court of Justice)
preclude
the prolonged and repeatedly extended exclusion under national law, on organisation or economic grounds, of the right of foreign nationals (third-country nationals) to seek an effective remedy against the failure of the public authorities to act (reminders, actions for a declaration of failure to act or undue delay), inter alia in the context of the requirements laid down in Article 34(1) and (3) of [Directive 2016/801]?;
(2)      Must the prolonged and repeatedly extended exclusion under national law of the possibility for foreign nationals – third-country nationals – to seek an effective remedy against the failure of public authorities to act, as outlined in paragraph 1, and the exclusion of the possibility for a national administrative court to award an adequate sum of money as compensation for the infringement of the right to action by the authorities without undue delay and the exclusion of the possibility of ordering the adoption of an administrative act within a time limit set by the court, where Polish nationals are not deprived of those rights in the context of their administrative procedures, be interpreted as:
(a)      not meeting the requirements of the general interest and unduly restricting the sphere of fundamental rights of the European Union (Article 2 TEU; Article 6(1) and (3) TEU, in conjunction with Article 52(1) to (3) of the Charter);
(b)      discriminating against foreign nationals – third-country nationals (Article 2 TEU, Articles 10 and 18 TFEU and [Article] 20 and [Article] 21(1) and (2) of the Charter);
(c)      contrary to the principle of justice (Article 2 TEU);
(d)      hindering genuine, effective access to justice (Article 2 TEU, Article 67(4) TFEU and Article 47 of the Charter, in conjunction with Article 51(1) thereof)?’
20.      Written observations have been submitted to the Court by the Polish Government and the European Commission.
Analysis
21.      By its questions referred for a preliminary ruling, which I will examine together, the referring court asks, in essence, whether the Law of 12 March 2022 is contrary to EU law, in particular Article 34(1) and (3) of Directive 2016/801, in that, on grounds of administrative or economic constraints, it has, repeatedly and on a lasting basis, extended the exclusion under
national law of the right of third-country nationals to an effective remedy against the inaction
of the administrative authorities, and ruled out the possibility for
national administrative courts, first, to order the payment of an appropriate amount by way of compensation for the infringement of the right to have
the authorities act without undue delay and, second, to require that
a decision be adopted within the time limit prescribed
by the court.
22.      In order to answer those questions, which invite the Court to assess the compatibility of such an exclusion of legal remedies with EU law, in particular with the relevant provisions of Directive 2016/801 and with Article 47 of the Charter, (9) I consider it necessary to examine a number of elements in turn. In the first place, it is necessary to recall the objective of Directive 2016/801 so as to shed light on the function and the scope of the procedure for issuing a residence permit
under that instrument. In the second place, it is necessary to assess, in the light of Article 34 of that directive and of the right to effective judicial protection guaranteed by Article 47 of the Charter, the national legislation which rendered inapplicable or suspended the time limits for examining applications for a residence permit
submitted by third-country nationals for study purposes in Poland. In that regard, it will be necessary to consider whether, and to what extent, that legislation undermines the effectiveness of Directive 2016/801, in particular in the light of the principles of equivalence and effectiveness. In the third place, it will be necessary to analyse the argument raised by the Polish Government based on the existence of a case of force majeure, and to assess whether the significant influx of displaced persons following the Russian Federation’s aggression against Ukraine is capable of constituting
a case of force majeure, such as to justify the derogations from EU law at issue.
The objective of Directive 2016/801 and the time limit for handling applications for a residence permit laid down in Article 34(1) thereof
23.      In the first place, the starting point for the examination is the wording of Article 34(1) of Directive 2016/801, under which ‘the competent authorities of the Member State concerned shall adopt a decision on the application for an authorisation or a renewal of it and notify the decision to the applicant in writing, in accordance with the notification procedures under national law, as soon as possible but not later than 90 days from the date on which the complete application was submitted’.
24.      The reference to handling the application ‘as soon as possible’, combined with the specification of a maximum period of 90 days, (10) conveys the very scheme of that directive, which seeks to improve and simplify the conditions of entry and residence in order, inter alia, to allow interested parties to start the academic year on time and to organise their study plans effectively. (11) In other words, the speed of the decision on an application for a residence permit
for study purposes is an essential component of the scheme established by Directive 2016/801.
25.      In that regard, it should be recalled that, under Article 5(3) of Directive 2016/801, Member States are required
to issue a residence permit for study purposes to an applicant who meets
the requirements laid down in Articles 7 and 11 of that directive. As the Commission noted in its observations, the concept of ‘issuing’ implies that, within the 90-day period, the competent national authorities must examine the application and take a decision on it, issuing the authorisation where the conditions are fulfilled or rejecting the application if not. (12)
26.      In the second place, as regards
the question whether EU law provides for grounds on which that maximum period may be suspended, it should be pointed out
that Article 34(3) of Directive 2016/801 provides for just one ground for suspension, namely where an application is incomplete and the competent authorities have requested additional information from the applicant. In that situation, those authorities are to set a reasonable deadline for the provision of the information required, which suspends the period referred to in Article 34(1) until that information is received. It follows that, as the Commission notes, Directive 2016/801 does not provide, by way of derogation, for the possibility for
Member States to suspend or extend the periods for adopting decisions on residence permits outside that specifically circumscribed
situation.
27.      It follows from the foregoing that, in so far as
the national legislation at issue provides that the time limits for processing applications for temporary residence permits
do not start to run in the period concerned or, where they have started to run, are suspended for that period in the procedures conducted by the Provincial
Governor, it constitutes a barrier to the expiry of the time limit laid down
in Article 34(1) of Directive 2016/801, beyond the situation referred to in
Article 34(3) of that directive. Such legislation is, in principle, liable
to run counter to the harmonised framework sought by the EU legislature. The objectives of Directive 2016/801, as set out inter alia in recitals 3 and 14 thereof, would be disregarded if delays in examining applications were to result in the students affected being unable to begin their studies at the start of the academic year, or even being unable to enrol. In such circumstances, even a third-country national exercising due care would not be able to benefit from the full effectiveness of the rights conferred on him or her by that directive during
the period of the successive suspensions of the handling of applications for residence permits
for study purposes.
28.      In addition, in the case in the main proceedings, the suspension of the time limits is accompanied by the inapplicability of the remedies referred to in Article 100d(3) of the Law of 12 March 2022. It is therefore necessary to examine whether that exclusion of legal remedies is in compliance
with Directive 2016/801 and with Article 47 of the Charter.
Article 34(5) of Directive 2016/801 and the right to effective judicial protection
29.      I now turn to the crux of the questions submitted by the referring court, which essentially concern whether the inapplicability of the possibility of bringing an action to challenge the authority’s failure to act, in the context of the suspension of the time limits for examining applications for temporary residence permits, and the exclusion of the possibility of imposing a fine on the competent authority or ordering the payment of compensation to applicants, are compatible with EU law.
30.      In that regard, I note, first of all, that, under Article 34(5) of Directive 2016/801, any decision declaring inadmissible or rejecting an application, as well as any decision refusing renewal or withdrawing an authorisation, must be open to legal challenge in the Member State concerned, in accordance with national law.
31.      It follows that, where an application for admission to the territory of a Member State for study purposes is rejected, Article 34(5) of that directive expressly enables the third-country national concerned to bring an appeal, in accordance with the detailed rules laid down in the national legal order of the Member State which adopted that decision. (13)
32.      The Court has clarified that, by stating that that appeal is brought in accordance with national law, the EU legislature left to the Member States the task of deciding on the nature and procedural conditions of the remedies available to applicants under Directive 2016/801. However, the nature and specific conditions of the appeal referred to in Article 34(5) of that directive must be determined in a manner that is consistent with Article 47 of the Charter. (14)
33.      In that regard, it should be recalled that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. (15) Since the case in the main proceedings comes
within the scope of Directive 2016/801, Article 47 of the Charter is applicable to it.
34.      It follows, as the Court has recalled, in particular in the judgment in Darvate, (16) that, when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are to ensure compliance in every case with the right to effective judicial protection of those rights as enshrined in Article 47 of the Charter.
35.      The Court has already clarified the scope of Article 34(5) of Directive 2016/801, in particular in the judgments in
Perle and
in Darvate. It follows, first, from the judgment in Darvate that that provision, read in the light of Article 47 of the Charter, does not require that the third-country national enjoys, in order to challenge the refusal of his or her application for admission for study purposes, either an exceptional appeal under an urgent procedure, even where compliance with the time limits relating to the ordinary procedure may jeopardise the progress of his or studies, or an appeal affording the court the power to order interim measures instructing the authorities to take a new decision with a view to issuing the authorisation applied for or the power either to substitute its own assessment for that of the authorities or to adopt a new decision itself.
36.      It is apparent, second, from the judgment in Perle that that provision, read in the light of Article 47 of the Charter, does not preclude an action against a refusal decision from taking the form of an action for annulment, without the court enjoying a power of substitution or the power to adopt a new decision, provided that the conditions under which that action is brought and, where appropriate, the detailed rules for implementation of the judgment ordering annulment enable a new decision to be adopted within a short period of time, in line with the assessment of the court, in such a way as to guarantee that a sufficiently diligent third-country national is able to benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801. (17)
37.      I would, however, note one significant difference between those judgments and the case in the main proceedings. In the cases cited above, the questions submitted to the Court concerned the nature and adequacy of the legal remedies available in the national legal orders concerned, and whether EU law, including Article 47 of the Charter, required Member States to establish additional remedies. (18) This involved, in other words, assessing whether an action for annulment was sufficient, or whether it had to be supplemented by an exceptional appeal, by interim measures or by the conferral on the court of a power of substitution.
38.      This is not the situation in the case in the main proceedings. The referring court is not faced with the question of which legal remedies should be established in order to satisfy the requirements of Article 34(5) of Directive 2016/801, but with the question of the compatibility, with EU law, of national legislation which renders inapplicable, for an extended period, remedies already provided for in the domestic legal order which would normally be available to third-country nationals who have applied for a temporary residence permit for study purposes.
39.      In that regard, it is necessary to recall the case-law according to which, while EU law, including the provisions of the Charter, does not have the effect of requiring Member States to establish remedies other than those established by national law, it must nevertheless be apparent from the overall scheme of the national legal system that a legal remedy exists that would make it possible to ensure, even indirectly, observance of the rights that individuals derive from EU law. (19)
40.      In the present case, as the Commission notes and subject to the findings that are for the referring court to make, it is not apparent from the request for a preliminary ruling that the interested parties enjoy, during
the period of application of Article 100d of the Law of 12 March 2022, another remedy, beyond those rendered inapplicable by that provision, which allows them to obtain a declaration of a failure to act on the part of the competent administrative authority or compensation for the damage suffered. However, it seems to me to be inherent in the very concept of a harmonised maximum time limit, as provided for in Article 34(1) of Directive 2016/801, that the applicant enjoys, under national law, effective means to challenge administrative inertia or excessive slowness which would render that time limit meaningless.
41.      Furthermore, I note that, in accordance with settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (20)
42.      In the case in the main proceedings, I consider there to be an issue vis-à-vis the principle of equivalence, as the national legislature renders inapplicable remedies which would, in principle, be available, in a situation such as that of the case in the main proceedings, to a category of persons, namely ‘foreign nationals’ within the meaning of point 1 of Article 100d(1) of the Law of 12 March 2022, who intend to lodge a complaint concerning the administrative authority’s failure to adopt a decision on their application for a temporary residence permit
for study purposes, even though those remedies remain available for Polish nationals wishing to challenge the administrative inertia in other situations in which the administrative authorities fail to decide on an application coming exclusively within the scope of domestic law.
43.      However, account must still be taken of the specific context in which the contested provision was adopted, that is to say, the Russian Federation’s aggression against Ukraine and the significant influx of people to Poland. It is therefore necessary to examine the extent to which that factor, highlighted by the referring court and relied on
by the Polish Government, is capable of
affecting the assessment under EU law and, therefore, the answer to be given to the questions referred for a preliminary ruling.
The argument based on force majeure
44.      In my view, it would be difficult to justify assessing the compatibility of Article 100d of the Law of 12 March 2022 with Directive 2016/801 without taking into account the circumstances relied upon by the Polish Government as the grounds for the adoption of that provision. According to the Polish Government, the significant influx of displaced persons from Ukraine following the Russian aggression has paralysed the administrative machinery and constitutes
a case of force majeure (21) justifying the adoption of exceptional and interim national measures, such as the inapplicability of the right of action referred to in Article 100d(3) of that law.
45.      In that regard, it should be borne in mind that, according to the case-law of the Court, the concept of ‘force majeure’ refers to abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care. (22) It should be added that, since that concept does not have the same scope in all spheres of EU law, its scope must be determined by reference to the legal context in which it is to operate. (23)
46.      It is also apparent from the case-law that, in the context of infringement actions under Article 258 TFEU, the Court may accept, exceptionally, force majeure as a ground justifying a Member State’s failure to fulfil its obligations under EU law, provided that the conditions characterising force majeure are met. A Member State which encounters ‘temporarily insuperable’ difficulties can, with that in mind, plead force majeure only for the period strictly necessary in order to resolve those difficulties. (24)
47.      That said, as Advocate General Medina observed in her Opinion in Minister for Children, Equality, Disability, Integration and Youth and Others, (25) the threshold required to establish such a justification is particularly strict. Force majeure may be pleaded only where the objective impossibility of complying with obligations arising from EU law is duly demonstrated. Even in abnormal and unforeseeable circumstances, a Member State is still required to take all appropriate measures within its power to ensure compliance with EU law.
48.      Specifically, it is apparent from the case-law that the effects of a case of force majeure cannot last beyond the time materially necessary for an administration showing a normal degree of diligence to address it and adjust to it. (26) In addition, the Member State must put forward specific and precise facts capable of establishing the existence of a case of force majeure, (27) and, in addition, the events invoked must, by definition, be short term and of limited impact. (28)
49.      It follows from all of those considerations that a Member State which encounters temporarily insuperable difficulties may plead force majeure, but only for the period necessary to resolve those difficulties. (29)
50.      In the case in the main proceedings, it is for the referring court to determine, having regard to all the relevant circumstances, whether the influx of displaced persons to Poland following the Russian Federation’s aggression against Ukraine since February 2022 is capable of constituting
a case of force majeure
such as to justify the adoption of exceptional and interim national measures, such as the inapplicability of the right of action
referred to in Article 100d(3) of the Law of 12 March 2022.
51.      However, with a view to providing the referring court with some useful guidance, I consider it appropriate to point out a number of factors which it could take into consideration in its assessment of the existence of a case of force majeure within the meaning of the case-law of the Court.
52.      In the first place, the referring court could take account of the time factor. While the influx is connected with events that occurred in 2022, an assessment should be made concerning the extent to which the successive extensions, up until 30 September 2025, of the impossibility of third-country nationals bringing the actions referred to in Article 100d(3) of the Law of 12 March 2022 may still be regarded as being the consequence of an abnormal and unforeseeable event.
53.      In the second place, consideration should be given to whether the competent authorities contemplated a less drastic measure, such as a targeted adjustment of the time limits, the
prioritisation of certain files, transitional arrangements, or even a phased implementation over time of the measure at issue.
54.      In the third place, it would be appropriate to assess whether the national legislature substantiated the need for, and the extension of, the contested measure with specific and verifiable evidence. The referring court might, inter alia, examine whether the law, or its grounds, are based on data relating, for example, to the change in the number of applications, the actual
processing capabilities, the sharing of the administrative burden, or the proven impossibility of resorting to other solutions. Without such data, or in the absence of reasoning linking those factors to the choice of a general exclusion of the legal remedies concerned, the argument based on force majeure would, in my view, be weakened.
55.      In the light of the foregoing, I consider that the answer to the questions referred is that Article 34(1) and (3) of Directive 2016/801, read in conjunction with Article 47 of the Charter, must be interpreted as precluding national legislation which, in the absence of a case of force majeure within the meaning of the Court’s case-law, excludes the possibility, provided for under national law, for a third-country national to pursue an effective legal remedy against the failure to act or the slowness of the competent administrative authority in examining an application for a residence permit
for study purposes, and to obtain a decision on that application within a specified period.
Conclusion
56.      In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Wojewódzki Sąd Administracyjny w Gliwicach (Provincial
Administrative Court, Gliwice, Poland) as follows:
Article 34(1) and (3) of Directive (EU) 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, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as
precluding national legislation which, in the absence of a case of force majeure within the meaning of the Court’s case-law, excludes the possibility, provided for under national law, for
a third-country national to pursue
an effective legal remedy against the failure to act or the slowness of the competent administrative authority in examining an application for a residence permit
for study purposes, and to obtain a decision on that application within a specified period.
1      Original language: French.
2      OJ 2016 L 132, p. 21.
3      OJ 2022 L 71, p. 1.
4      OJ L, 2024/1836.
5      Dz. U. of 2022, item 583.
6      Dz. U. of 2025, item 337 (‘the Law of 12 March 2022’).
7      Dz. U. of 2024, item 769.
8      Dz. U. of 2024, item 935.
9      Although the referring court also mentions the principles of the rule of law and of respect for human rights (Article 2 and Article 6(3) TEU), the principle of proportionality (Article 52(1) of the Charter, read in the light of Article 51(1) thereof in conjunction with
Article 6(1) TEU), the principle of the primacy of EU law and its effectiveness (Article 4(3) TEU) and the right to good administration (Article 41(1) to (4) of the Charter, in conjunction with Article 51(1) thereof
and Article 6(1) TEU), Articles 10 and 18 TFEU, Article 20 and Article 21(1) and (2) of the Charter and Article 67(4) TFEU, in my view the Court’s answer can relate solely to Article 34 of Directive 2016/801, in conjunction with Article 47 of the Charter. It should be recalled, in that regard, that, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may reformulate the questions referred to it, limiting, where appropriate, its interpretation only to the relevant provisions among those which are the subject of the request for a preliminary ruling. See, for example, judgment of 26 January 2023, Ministerstvo na vatreshnite raboti (Recording of biometric and genetic data by the police) (C‑205/21, EU:C:2023:49, paragraph 77), in which the Court reformulates the third question submitted by the referring court.
10      The Republic of Poland transposed that obligation in Article 112a(1) of the Law on foreign nationals, which provides for a 60-day period.
11      See recital 14 of Directive 2016/801. Furthermore, recital 3 of that directive states that ‘immigration from outside the Union is one source of highly skilled people, and students and researchers are in particular increasingly sought after. They play an important role in forming the Union’s key asset, human capital, and in ensuring smart, sustainable and inclusive growth, and therefore contribute to the achievement of the objectives of the Europe 2020 Strategy.’
With regard to the objective of Directive 2016/801, as set out in recitals 3
and 14 thereof, see judgment of
29 July 2024, Perle (C‑14/23, ‘the judgment in Perle’, EU:C:2024:647, paragraph 45).
12      See, by analogy, judgment of 27 June 2018, Diallo (C‑246/17, EU:C:2018:499, paragraphs 34
to 38). See also recital 30
of Directive 2016/801, under which ‘once all the general and specific conditions for admission are fulfilled, Member States should issue an authorisation, within specified time limits. If a Member State issues residence permits only on its territory and all the conditions of this Directive relating to admission are fulfilled, the Member State should grant the third-country national concerned the requisite visa and should ensure that the competent authorities effectively cooperate for that purpose. In the event that the Member State does not issue visas, it should grant the third-country national concerned an equivalent permit allowing entry.’
13      See the judgment in
Perle (paragraph 61) and judgment of
19 June 2025, Darvate and Others (C‑299/23, ‘the judgment in Darvate’, EU:C:2025:461, paragraph 27).
14      See the judgment in
Darvate (paragraphs 28
and 29).
15      See judgment of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N. (C‑949/19, EU:C:2021:186, paragraph 36
and the case-law cited).
16      The judgment in
Darvate (paragraph 30). See also judgment of
14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and
C‑925/19 PPU, EU:C:2020:367, paragraph 142
and the case-law cited).
17      See the judgments in
Perle (paragraph 67) and in
Darvate (paragraphs 45
and 46).
18      See, in that regard, the judgment in Darvate (paragraph 33).
19      See, to that effect, the judgment in
Darvate (paragraph 33). See also judgments of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 40), and of
24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 51).
20      See judgments of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 26), and of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N. (C‑949/19, EU:C:2021:186, paragraph 43).
21      The Polish Government refers in that regard to recitals 3 and 7 of Implementing Decision 2022/382, which describe the Russian aggression as unforeseeable, unprovoked and unjustified, in order to support its argument that they confirm that the mass influx of displaced persons from Ukraine satisfies the conditions established by the Court’s case-law for characterising a case of ‘force majeure’. It also relies on recital 7 of Implementing Decision 2024/1836, according to which further arrivals on a large scale from Ukraine could not be excluded and a risk to the efficient operation of the national asylum systems persists. I note, for my part, that the wording of the recitals thus cited does not, as such, classify the Russian aggression in Ukraine as an ‘unforeseeable’ circumstance or the influx of displaced persons from that country as ‘force majeure’.
22      See judgment of
30 September 2021, Court of Auditors v Pinxten (C‑130/19, EU:C:2021:782, paragraph 781).
23      See judgment of
25 January 2017, Vilkas (C‑640/15, EU:C:2017:39, paragraphs 53
and 54 and the case-law cited).
24      See judgment of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water) (C‑481/22, EU:C:2024:85, paragraph 92). See, in that regard,
Opinion of Advocate General Medina in Minister for Children, Equality, Disability, Integration and Youth and Others (C‑97/24, EU:C:2025:269, point 36).
25      C‑97/24, EU:C:2025:269, point 37. Advocate General Medina adds, in the same point of her Opinion, that, ‘as the expression “temporarily insuperable difficulties” indicates, the strict interpretation of force majeure entails that, if the event causing the inability to perform is temporary, the EU law obligation may only be suspended for the duration of the event and for a reasonably short period’.
26      See, to that effect, judgment of 11 July 1985, Commission v Italy (101/84, EU:C:1985:330, paragraph 16).
27      See, to that effect, judgment of
19 December
2012, Commission v Italy (C‑68/11, EU:C:2012:815, paragraph 65).
28      See, to that effect, judgment of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water) (C‑481/22, EU:C:2024:85, paragraph 93).
29      See Opinion of Advocate General Medina in
Minister for Children, Equality, Disability, Integration and Youth and Others (C‑97/24, EU:C:2025:269, point 40).
Furthermore, I consider it appropriate to take into consideration the case-law of the European Court of Human Rights (‘the ECtHR’) in similar cases in which a State relies on migratory pressure to justify interference with the effectiveness of the remedies available to the persons concerned. Such reference is particularly relevant since, where the Charter enshrines rights corresponding to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, Article 52(3) of the Charter seeks to ensure the necessary consistency between those rights, without prejudice to the autonomy of EU law. For example, in the case which gave rise to the judgment of the ECtHR of 13 December 2012,
De Souza Ribeiro v. France [GC (CE:ECHR:2012:1213JUD002268907) relating to the removal of a Brazilian national from French Guiana, carried out approximately 50 minutes after an application for a stay of execution was lodged before a court, the ECtHR observed that the particularly rapid execution of the order, solely on the basis of the decision of the prefect, had had the effect of rendering the available remedies ineffective in practice and therefore inaccessible (§ 95), and that the applicant had had no chance of having the lawfulness of the contested order being examined sufficiently thoroughly by a national authority (§ 96). In that case, the ECtHR found that the geographical location of French Guiana, the strong pressure of immigration there and the danger of overloading the courts relied on by the defendant State did not justify, as such, the derogatory scheme provided for in the legislation or its operation. It recalled that the discretion enjoyed by States as to the manner in which they implement Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms cannot result in individuals being denied access to the minimum procedural safeguards against arbitrary expulsion (§ 97). It is true that that case concerned removal in the context of unlawful migration and not the procedure relating to residence for study purposes at issue in the main proceedings. Nevertheless, I consider that it does still illustrate one generally applicable consideration, namely that migratory pressure, even if it is coupled with a risk of a significant burden being placed on the courts, cannot justify the right to effective judicial protection being rendered meaningless.