Case C‑638/16 PPU
XandX
v
État belge
(Request for a preliminary rulingfrom the Conseil du Contentieux des Étrangers (Belgium))
(Reference for a preliminary ruling — Regulation (EC) No 810/2009 — Article 25(1)(a) — Visa with limited territorial validity — Issuing of a visa on humanitarian grounds or because of international obligations — Concept of ‘international obligations’ — Charter of Fundamental Rights of the European Union — European Convention for the Protection of Human Rights and Fundamental Freedoms — Geneva Convention — Issuing of a visa where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights is established — No obligation)
Summary — Judgment of the Court (Grand Chamber), 7 March 2017
1.        Questions referred for a preliminary ruling — Urgent preliminary ruling procedure — Conditions — Real risk of inhuman or degrading treatment
(Statute of the Court of Justice, Art. 23a; Rules of Procedure of the Court of Justice, Art. 107)
2.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Questions concerning a measure of EU law, the application of that act to the main proceedings being in dispute — Included — Condition — Challenge inextricably linked to the answers to be given to the questions referred
(Art. 267 TFEU)
3.        Fundamental rights — Charter of Fundamental Rights of the European Union — Scope — The situation at issue in the main proceedings not being governed by EU law — Precluded
(Charter of Fundamental Rights of the European Union, Art. 51(1))
4.        Border controls, asylum and immigration — Visa policy — Community Code on Visas — Regulation No 810/2009 — Scope — Application for a visa with limited territorial validity made on humanitarian grounds — Application lodged from a third country, with a view to lodging an application for international protection in the Member State of destination and to staying for more than 90 days in a 180-day period in that Member State — Precluded
(European Parliament and Council Regulation No 810/2009, Arts 1 and 25)
1.      See the text of the decision.
(see paras 29-34)
2.      See the text of the decision.
(see paras 35-37)
3.      See the text of the decision.
(see para. 45)
4.      Article 1 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), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as meaning that an application for a visa with limited territorial validity made on humanitarian grounds by a third-country national, on the basis of Article 25 of the code, to the representation of the Member State of destination that is within the territory of a third country, with a view to lodging, immediately upon his or her arrival in that Member State, an application for international protection and, thereafter, to staying in that Member State for more than 90 days in a 180-day period, does not fall within the scope of that code but, as EU law currently stands, solely within that of national law.
It should be added that to conclude otherwise, when the Visa Code is intended for the issuing of visas for stays on the territories of Member States not exceeding 90 days in any 180-day period, would be tantamount to allowing third-country nationals to lodge applications for visas on the basis of the Visa Code in order to obtain international protection in the Member State of their choice, which would undermine the general structure of the system established by Regulation No 604/2013.
It is also important to note that to conclude otherwise would mean that Member States are required, on the basis of the Visa Code, de facto to allow third-country nationals to submit applications for international protection to the representations of Member States that are within the territory of a third country. Indeed, whereas the Visa Code is not intended to harmonise the laws of Member States on international protection, it should be noted that the measures adopted by the European Union on the basis of Article 78 TFEU that govern the procedures for applications for international protection do not impose such an obligation and, on the contrary, exclude from their scope applications made to the representations of Member States. Accordingly, it is apparent from Article 3(1) and (2) of Directive 2013/32 that that directive applies to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, but not to requests for diplomatic or territorial asylum submitted to the representations of Member States. Similarly, it follows from Articles 1 and 3 of Regulation No 604/2013 that that regulation imposes an obligation on Member States only to examine any application for international protection made on the territory of a Member State, including at the border or in the transit zones, and that the procedures laid down in that regulation apply exclusively to such applications for international protection.
(see paragraphs 48, 49, 51 and operative part)