OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 11 April 2013 ( 1 )

Case C‑84/12

Rahmanian Koushkaki

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany))

‛Area of freedom, security and justice — Procedure for the issue of visas — Right of a visa applicant meeting the entry conditions to be issued a visa — Assessment of the risk of illegal immigration — Discretion of the Member States concerned’

1. Twelve million short stay visas were issued in 2011 by the Member States which issue ‘Schengen’ visas. ( 2 ) The legal regime which governs the issue of those Schengen visas is therefore important for the European Union in general and for the Schengen Area in particular. This request for a preliminary ruling now gives the Court an opportunity to clarify that regime, derived from 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). ( 3 )

I – Legal framework

A – European Union law

1. Regulation (EC) No 539/2001

2. Pursuant to Article 1(1) of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders of Member States and those whose nationals are exempt from that requirement, ( 4 )‘[n]ationals of third countries on the list in Annex I shall be required to be in possession of a visa when crossing the external borders of the Member States’.

3. It is apparent from Annex I to Regulation No 539/2001 that the Islamic Republic of Iran is included in the list of third countries whose nationals are required to be in possession of a visa to cross the external borders of a Member State.

2. The Schengen Borders Code

4. 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), ( 5 ) lays down the rules applicable to border checks on persons crossing the external borders of the Member States of the European Union.

5. Article 5 of the Schengen Borders Code, on entry conditions for third‑country nationals, is drafted as follows: ‘1. For stays not exceeding three months per six-month period, the entry conditions for third-country nationals shall be the following: (a) they are in possession of a valid travel document or documents authorising them to cross the border; … (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully; (d) they are not persons for whom an alert has been issued in the [Schengen Information System (SIS)] for the purposes of refusing entry; (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds. …’

3. The Visa Code

6. Recital 6 of the preamble to the Visa Code states that ‘[p]rocessing of visa applications should be conducted in a professional and respectful manner and be proportionate to the objectives pursued’.

7. Recital 18 of the preamble to the Visa Code states that ‘[l]ocal Schengen cooperation is crucial for the harmonised application of the common visa policy and for proper assessment of migratory and/or security risks. Given the differences in local circumstances, the operational application of particular legislative provisions should be assessed among Member States’ diplomatic missions and consular posts in individual locations in order to ensure a harmonised application of the legislative provisions to prevent visa shopping and different treatment of visa applicants’.

8. Recital 29 of the preamble to the Visa Code states that ‘[t]his Regulation respects fundamental rights and observes the principles recognised … by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union’.

9. Article 1(1) and (2) of the Visa Code is worded as follows: ‘1. This Regulation establishes the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any six-month period. 2. The provisions of this Regulation shall apply to any third‑country national who must be in possession of a visa when crossing the external borders of the Member States pursuant to Regulation [No 539/2001], without prejudice to: (a) the rights of free movement enjoyed by third-country nationals who are family members of citizens of the Union; (b) the equivalent rights enjoyed by third-country nationals and their family members, who, under agreements between the Community and its Member States, on the one hand, and these third countries, on the other, enjoy rights of free movement equivalent to those of Union citizens and members of their families.’

10. Article 21 of the Visa Code concerns the verification of entry conditions and risk assessment. It reads as follows: ‘1. In the examination of an application for a uniform visa, it shall be ascertained whether the applicant fulfils the entry conditions set out in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code, and particular consideration shall be given to assessing whether the applicant presents a risk of illegal immigration or a risk to the security of the Member States and whether the applicant intends to leave the territory of the Member States before the expiry of the visa applied for. … 3. While checking whether the applicant fulfils the entry conditions, the consulate shall verify: (a) that the travel document presented is not false, counterfeit or forged; (b) the applicant’s justification for the purpose and conditions of the intended stay, and that he has sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is in a position to acquire such means lawfully; (c) whether the applicant is a person for whom an alert has been issued in the [SIS] for the purpose of refusing entry; (d) that the applicant is not considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; (e) that the applicant is in possession of adequate and valid travel medical insurance, where applicable. …’

11. Article 32 of the Visa Code defines the conditions under which a visa is to be refused. It provides: ‘1. Without prejudice to Article 25(1), a visa shall be refused: (a) if the applicant: (i) presents a travel document which is false, counterfeit or forged; (ii) does not provide justification for the purpose and conditions of the intended stay; (iii) does not provide proof of sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or residence …; (iv) has already stayed for three months during the current six-month period on the territory of the Member States …; (v) is a person for whom an alert has been issued in the SIS for the purpose of refusing entry; (vi) is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; or (vii) does not provide proof of holding adequate and valid travel medical insurance, where applicable; or (b) if there are reasonable doubts as to the authenticity of the supporting documents submitted by the applicant or the veracity of their contents, the reliability of the statements made by the applicant or his intention to leave the territory of the Member States before the expiry of the visa applied for. 2. A decision on refusal and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI. 3. Applicants who have been refused a visa shall have the right to appeal. Appeals shall be conducted against the Member State that has taken the final decision on the application and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI. …’

B – German Law

12. Paragraph 6 of the Law on the residence, economic activity and integration of foreigners in the federal territory [Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Aufenthaltsgesetz)] ( 6 ) provides: ‘(1) The following visas may be issued to foreigners in accordance with [the Visa Code]: 1. a visa for transit through or intended stays in the territory of the Schengen States of a duration of no more than three months within a six-month period from the date of first entry (Schengen visa). … (2) Visas may be extended in accordance with [the Visa Code] for a duration of up to three months within a six-month period from the date of first entry. A Schengen visa may be extended as a national visa for a further three months within the six-month period in question on the grounds set out in Article 33 of [the Visa Code], for the protection of the political interests of the Federal Republic of Germany or on grounds of international law. …’

II – The dispute in the main proceedings and the questions referred for a preliminary ruling

13. Mr Koushkaki, the applicant in the main proceedings, is an Iranian national. On 7 November 2010 he applied for the issue of a Schengen visa at the German embassy in Tehran (Iran). At that time, he declared that he was married, described his professional activity as ‘free job’, assessed the duration of his stay at 62 days and designated his host, who had made a declaration of sponsorship. Mr Koushkaki, at the time of the application, was in possession of a valid travel document and of proof of insurance for his stay.

14. The German authorities refused that application on the ground that the applicant in the main proceedings had not proved that he had sufficient means of subsistence either for the duration of his stay or to ensure his return to Iran.

15. Claiming, inter alia, that he wished to visit his brother, who has been granted asylum in Germany and who therefore cannot travel to Iran, the applicant in the main proceedings brought an appeal against that first decision, which led to the replacement of that decision by a new refusal decision of 5 January 2011, this time based on overriding doubt as to the applicant’s intention to return. Notwithstanding the applicant’s statements and the supporting evidence he produced, that embassy’s examination had not indicated that there were sufficient economic ties to ensure an intention to return to Iran.

16. On 8 February 2011 Mr Koushkaki, who disputes the lawfulness of the second refusal decision of the German embassy in Tehran, brought proceedings before the referring court seeking an order that the visa he had applied for be granted to him.

17. The referring court submits that, in its opinion, all the entry conditions required by Article 21(1) of the Visa Code, which refers to Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code, are met by the applicant in the main proceedings, who is in possession of a valid travel document, has explained with supporting documents the purpose and conditions of his stay in Germany and is not a person for whom an alert has been issued in the SIS. According to the referring court, the applicant does not seem to lack the means necessary to return to Iran and does not constitute a threat to any Member State’s internal security, public health or international relations.

18. The referring court also submits that the only remaining doubt is whether the applicant in the main proceedings represents, on account of the strong pressure to emigrate from Iran which the Federal Republic of Germany puts forward in its defence, and the risk of illegal immigration which it claims that applicant represents, a threat to public policy. For that reason, the referring court, which considers itself to be competent to decide on the visa application submitted by the applicant in the main proceedings if it concludes that the refusal decision of the Germany embassy in Tehran should be annulled, raises the issue of the degree of conviction with which the court must decide whether the visa applicant will actually leave German territory before the expiry of the visa’s period of validity.

19. The referring court also raises the issue of the legal consequences of the fact that the visa applicant fulfils all the entry conditions set out in Article 21 of the Visa Code and that none of the grounds for the refusal of a visa listed by Article 32(1) of that code are applicable to him. The referring court is unsure whether, in such a case, the applicant in the main proceedings must be recognised to have a right to be issued a Schengen visa.

20. Thus faced with a difficulty relating to the interpretation of European Union law, the Verwaltungsgericht Berlin (Germany) decided to stay the proceedings and, by order received at the Court Registry on 17 February 2012, to refer the following three questions to the Court for a preliminary ruling on the basis of Article 267 TFEU: ‘(1) In order for the court to direct the defendant to issue a Schengen visa to the applicant, must the court be convinced that, pursuant to Article 21(1) of the Visa Code, the applicant intends to leave the territory of the Member States before the expiry of the visa applied for, or is it sufficient if the court, after examining Article 32(1)(b) of the Visa Code, has no reasonable doubt based on specific circumstances as to the applicant’s stated intention to leave the territory of the Member States before the expiry of the visa applied for? (2) Does the Visa Code establish a mandatory right to the issue of a Schengen visa if the entry conditions, in particular those of Article 21(1) of the Visa Code, are satisfied and there are no grounds for refusing the visa pursuant to Article 32(1) of the Visa Code? (3) Does the Visa Code preclude a national provision whereby a foreigner may, in accordance with Regulation … No 810/2009, be issued with a visa for transit through or an intended stay in the territory of the Schengen States of no more than three months within a six-month period from the date of first entry (Schengen visa)?’

III – Procedure before the Court

21. The German, Belgian, Czech, Danish, Estonian and Greek Governments, the Swiss Confederation ( 7 ) and the European Commission lodged written observations before the Court.

22. At the hearing on 29 January 2013, oral argument was presented by Mr Koushkaki, the German, Belgian, Czech, Danish, Estonian and Polish Governments, and the Commission.

IV – Legal analysis

A – Preliminary observations

23. At the outset, two sets of observations must be made, one concerning correction of the referring court’s starting premise and the other concerning the need to reformulate and reorganise the questions addressed to the Court.

24. Accordingly, first, the referring court takes the view that the only remaining point at issue is whether the applicant in the main proceedings presents a risk of illegal immigration which may constitute a threat to public policy within the meaning of Articles 21(3)(d) and 32(1)(a)(vi) of the Visa Code. In other words, according to that court, in the procedure for the issue of visas as governed by the Visa Code, only a risk of illegal immigration constituting a threat to public policy should be taken into consideration.

25. However, it is clear from the wording of Article 21(1) of the Visa Code that the examination carried out in principle by the consular authorities ( 8 ) concerns (a) the visa applicant’s observance of the entry conditions, which include the absence of a threat to public policy, and (b) the assessment of the risk of illegal immigration, of the risk for the internal security of the Member States and the intention of the visa applicant to actually leave the territory of the Member State concerned before the expiry date of the visa sought. As several parties who have intervened in this request for a preliminary ruling have pointed out, the risk of illegal immigration and the doubt relating to the intention to leave the territory constitute two criteria which are independent of the threat to public policy which is supposed to guide the examination of the consular authorities.

26. That being said, it must, secondly, be noted that the first question referred is clearly formulated as meaning that the referring court has the legal authority to replace the assessment made by the German embassy in Tehran with its own assessment of the individual case of the applicant in the main proceedings. The German Government, in its observations, stated that it was a specific point of contention in national law whether the German courts were able, in an action such as that in the main proceedings, to exercise unlimited jurisdiction and to order the consular authorities to issue the visa.

27. It is not for the Court to enter into such a debate, since the conditions under which legal proceedings against a refusal to issue a Schengen visa are organised fall within the procedural autonomy of the Member States. In those circumstances, it is necessary to reformulate the first question and to hold that it seeks to ascertain whether, for the purposes of the assessment of intention to leave the territory, the authorities responsible for that assessment must actually make a finding of fact that the applicant intends to return or whether the absence of any reasonable doubt as regards the existence of that intention is a sufficient basis for holding that the entry condition relating to the intention to leave the territory of the Member State concerned before the expiry of the visa applied for has been met. The first question referred thus seeks to have the Court determine the conditions for the application of that criterion linked to the intention of the visa applicant to return to his country of origin.

28. The second and third questions concern the issue of whether, more generally, in the case where a visa applicant meets all the entry conditions within the meaning of Article 21 of the Visa Code and where none of the grounds for refusal listed in Article 32(1) of that code are applicable to him, the authorities responsible for the examination of his application are required to – must – issue the visa, whereas the national legislation as it now stands provides only that those authorities ‘may’ issue the visa. Those two questions will thus be dealt with together.

B – On the first question, as reformulated

29. The Visa Code has the express objective of establishing the procedures and conditions for issuing visas for a maximum duration of three months. ( 9 ) Article 14 of that code also clearly places the burden of proving that the conditions for entry to the territory of a Member State are met on the visa applicant by indicating the documents which that applicant must produce at the time of submitting his application. He is thus required to produce ‘information enabling an assessment of [his] intention to leave the territory of the Member States before the expiry of the visa applied for’. ( 10 )

30. Once the visa application has been submitted, the authorities responsible for examining it must ascertain, in accordance with the requirements of Article 21(1) of the Visa Code, not only that the entry conditions set out in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code are met, but also that the applicant intends to leave the territory of the Member States before the expiry of the visa sought. Article 21 does not contain any further guidelines to be followed by the authorities when they must assess the existence of that intention to return to the country of origin. Only Annex II to the Visa Code contains a non‑exhaustive list of supporting documents which may usefully be produced by the visa applicant and which allow his intention to leave the territory of the Member States to be assessed. ( 11 )

31. Article 21(1) of the Visa Code on the verification of entry conditions and risk assessment must necessarily be read in conjunction with Article 32 of that code, relating to the grounds for refusal of a visa application. Thus, as provided for in Article 32(1)(b) of that code, a visa is to be refused ‘if there are reasonable doubts as to … [the] intention to leave the territory of the Member States before the expiry of the visa applied for’. ( 12 )

32. It is thus apparent from the wording of Article 32(1)(b) of the Visa Code that, in order to refuse a visa on the grounds that there is no intention to leave the territory of the Member States, the authorities responsible for the examination of that application must have a reasonable doubt as regards the visa applicant’s actual intention to return. Reasonable doubt thus is not interpreted in the visa applicant’s favour. On the other hand, mere doubt is not sufficient: ( 13 ) that doubt must be reasonable.

33. Reasonable doubt is admittedly a concept the definition of which presents particular difficulties. One can however state that reasonable doubt is doubt which falls somewhere between, on one hand, conviction or certainty, and, on the other hand, slight or purely hypothetical doubt.

34. It must be pointed out that, so far as concerns visas, a number of circumstantial factors prevented the legislature from further codifying the substance of the criteria upon which a refusal decision may be based, and thus from defining in more detail the factors which may be used to determine that intention to leave the territory. Thus, even when the Draft proposal for a Regulation establishing a Community Code on Visas was submitted, the Commission indicated that, ‘[w]hile acknowledging that the core legislation is directly applicable by Member States, the Commission is also aware that the diversity of individual cases and local conditions makes it very difficult to draw up detailed rules valid in all circumstances and covering all situations’. ( 14 ) None the less, it may be useful to indicate to the referring court, as far as possible, how the authorities responsible for the examination of a visa application may consider there to be reasonable doubt as regards the intention to leave the territory of the Member States.

35. To do this it is necessary to refer to the Handbook for the processing of visa applications and the modification of issued visas drawn up by the Commission, ( 15 ) which contains the instructions on the practical application of the provisions of the Visa Code ( 16 ) which, although not binding, are enlightening. At point 7.12 of that Handbook, a certain number of factors are given which the authorities responsible for the examination of a visa application may take into account to assess the applicant’s intention to leave the territory. It is apparent from this that two sets of criteria bear examination, namely criteria relating to the ‘objective’ situation of the State of origin of the applicant and criteria which I will treat as more ‘subjective’ in so far as they relate to the individual situation of the applicant. It is expressly recognised that those latter criteria ‘may differ depending on the applicant’s country of residence’, ( 17 ) which leaves a wide discretion to the decision-making authorities. However, in any event, there may be reasonable doubt only after ‘all elements [have been] taken into consideration to ensure an objective assessment’ ( 18 ) and ‘each individual application shall be assessed on its own merits’. ( 19 ) Thus, reasonable doubt cannot be founded on the sole basis of a mere assumption or solely on the examination of so-called ‘objective’ criteria relating to the situation in the country of origin.

36. For all those reasons, I suggest that the Court state in answer to the first question referred, as I have reformulated it, that, for the purposes of Article 21(1) of the Visa Code, read in conjunction with Article 32(1)(b) of that code, in order to refuse a visa application on the ground that the visa applicant does not intend to return, there must be reasonable doubt on the part of the authorities responsible for the examination of the application as regards the real intention of the visa applicant to return after they have taken into account all the factors necessary to ensure an objective assessment, which include both factors linked to the situation in the country of origin and factors relating to the individual situation of the applicant and to the supporting documents which he has produced.

C – On the second and the third questions

37. By its second and third questions, the referring court seeks essentially to ascertain whether the Visa Code establishes a sort of subjective right for third‑country nationals which obliges the authorities responsible for the examination of an application to issue a short-term visa to an applicant where that applicant fulfils the entry conditions set out in Article 21 of the Visa Code and where none of the grounds for refusal listed in Article 32(1) of that code are applicable to him. Consequently, the referring court also wonders whether national legislation such as that at issue in the main proceedings, which provides only that a visa may be issued when the conditions which I have just described are met, is compatible with the Visa Code.

38. The German Government, during the hearing before the Court, stated that the refusal of Mr Koushkaki’s application was not based on any ground other than those provided for in Article 32(1) of the Visa Code and maintained that it was indeed doubt relating to the lack of intention of the applicant in the main proceedings to leave Germany before the expiry of the visa applied for which led the German consular authorities to refuse the visa application. The referring court, for its part, considers that Mr Koushkaki meets the entry conditions in Article 21 of the Visa Code and that none of the grounds for refusal in Article 32(1) of that code are applicable to him. I have, however, observed above ( 20 ) that the referring court’s assessment may be flawed. It is therefore possible that, once the referring court’s error in interpretation has been rectified, that court will conclude that the German consular authorities were fully entitled to refuse the visa application of the applicant in the main proceedings on the basis of his lack of intention to leave the territory. It must therefore be stated that it is only if the referring court, once it has taken formal notice of the fact that the visa applicant’s lack of intention to leave the territory does indeed constitute, for the purposes of the Visa Code, a ground for refusal which is separate from the threat to public policy, maintains that that applicant meets the entry conditions referred to in Article 21 of that code and that none of the grounds for refusal among those provided for in Article 32(1) of the Visa Code are applicable to him, that a response to the second and third questions will still be useful.

39. Those questions raise, by implication, the problem of whether the Visa Code has brought about complete harmonisation in the field of the issue of short‑term visas to third‑country nationals with the consequence that (a) no ground for refusal can be unilaterally added by a Member State to those provided for in Article 32(1) of the Visa Code and (b) the Member States are in particular obliged, where the requirements of Articles 21 and 32(1) of that code are met, to issue to the visa applicant a short-term visa to which he has the right, a right which he may directly rely on against the Member State to which he submitted his application.

40. To answer this I will first of all carry out a textual analysis of the Visa Code, regarding which I wish to stress that it merely considers how each Member State should conduct itself towards a visa applicant. Accordingly, I will study the system which, in that regard, it puts in place. I will then complete my assessment by determining whether the results of the abovementioned analyses are consistent with the objectives pursued by that code. Lastly, I will add several concluding remarks on its added value.

1. Textual analysis

41. First, it is apparent that the Visa Code does not contain any provision establishing an obligation for the Member States to issue a short-term visa to third‑country nationals who apply for it and meet the requirements set in Articles 21 and 32(1) of that code. Thus, although Chapter IV of the Visa Code is in fact headed ‘Issuing of the visa’, the provisions contained in it do not in any way deal with whether there is a right to have a visa issued, but rather concern the conditions for setting the period of validity or the length of the stay, ( 21 ) the conditions in which the Member States may grant a visa with limited territorial validity, ( 22 ) the conditions of validity and of duration of an airport transit visa, ( 23 ) and details relating to the visa sticker. ( 24 ) Chapter IV contains, moreover, Article 30 on rights derived from an issued visa, which, far from laying down a subjective right, states that ‘[m]ere possession of a uniform visa or a visa with limited territorial validity shall not confer an automatic right of entry’.

42. Secondly, it must be noted that the Visa Code never states that it brings about complete harmonisation. Thus recital 3 thereof stipulates that ‘the establishment of a “common corpus” of legislation, particularly via the consolidation and development of the acquis (the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ 2000 L 239, p. 19) and the Common Consular Instructions) …, is one of the fundamental components of “further development of the common visa policy as part of a multi-layer system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local consular missions”’. ( 25 ) In addition, the harmonised application of the Visa Code is presented as an objective to be attained ( 26 ) and not as a state of affairs following solely from the system put in place by that code.

43. Thirdly and lastly, it must be recalled that the grounds for refusal referred to in Article 32(1) of the Visa Code are couched in particularly broad terms, precisely because of the ‘differences in local circumstances’, ( 27 ) so that the European Union legislature, in full knowledge of the facts, left the specific application of certain legislative provisions to the assessment of the consular authorities of the Member States in each individual location ‘in order to ensure a harmonised application of the legislative provisions to prevent visa shopping and different treatment of visa applicants’. ( 28 ) I feel obliged to point out here that there is a strange contradiction between the recognition of very diverse local situations and the stated aim of a harmonised application left, ultimately, to the assessment of the consular authorities.

44. Thus, so far as concerns the text itself of the Visa Code, there is nothing to suggest that the European Union legislature’s intention at the time that code was drafted was expressly to establish a subjective right to the issue of a short term visa for visa applicants who are third‑country nationals. In a field as sensitive as this, the argument that the legislature would have satisfied itself with establishing the right merely by implication does not stand up to scrutiny.

45. It remains to be ascertained whether that finding is corroborated by a systemic analysis of the Visa Code.

2. Systemic analysis

46. The adoption of the Visa Code is in line with the progressive construction of a specific visa policy at European Union level, a construction which was initiated by certain Member States and between Member States in the context of the Schengen Agreement, the Convention for the application of that agreement and the Common Consular Instructions. As the treaties have evolved, the field of visas has been progressively brought into the Community sphere.

47. None the less, one should not lose sight of the very high degree of sensitivity which the question of the issue of visas to third‑country nationals has for the Member States. If there is a principle of international law deemed to be one of the characteristic manifestations of State sovereignty, it is that States have the right to control the entry of non-nationals to their territory. ( 29 ) While the Member States have clearly consented to waiving the application of that principle so far as concerns European citizens whose freedom of movement is guaranteed by the ‘founding constitutional charter’ of the European Union, ( 30 ) the situation is much less clear so far as concerns the access of third‑country nationals to the Member States’ territories, a fortiori where no close family ties with a European Union citizen are relied upon. ( 31 )

48. Thus, the cooperation initiated in the context of the Schengen Agreement and now codified by the Visa Code must not hide the international interests at issue. In this connection, it is appropriate to point out that, in the context of the Stockholm Programme established in 2010 ( 32 ) – that is, after the adoption of the Visa Code – the European Council invited the Commission to ‘strengthen its efforts to ensure the principle of visa reciprocity and prevent the (re)introduction of visa requirements by third countries towards any Member State and to identify measures which could be used prior to imposing the visa reciprocity mechanism towards those third countries’. ( 33 ) The European Council continued, stating that ‘[t]he European Council, with a view to creating the possibility of moving to a new stage in the development of the common visa policy, while taking account of Member States competences in this area, invites the Commission to present a study on the possibility of establishing a common European issuing mechanism for short term visas’. ( 34 )

49. The automatic nature of the grant of a visa which would stem from the recognition of a subjective right would be difficult to reconcile with those concerns linked to reciprocity in the event, for example, that a third country listed in Annex I to Regulation No 539/2001 were significantly to tighten its policy on issuing visas to European Union citizens.

50. In any event, it is apparent from instruments of secondary legislation that the visa is designed not as a right, but as an obligation imposed on a person wishing to stay for a short duration in the territory of a Member State, that is to say as a pre-requisite to entry to the territory of the European Union. Thus, Regulation No 539/2001 defines the visa as ‘an authorisation issued by a Member State or a decision taken by such State which is required with a view to … entry for an intended stay in that Member State … of no more than three months in total’. ( 35 ) The Schengen Borders Code does not conceive of the visa differently. ( 36 ) As regards the Visa Code, as I have observed above, it never expressly refers to the existence of a right to the issue of a visa, but observes a number of times, on the contrary, that the visa is a requirement to which nationals of third States are subject ( 37 ) and also defines the visa as ‘an authorisation issued by a Member State’. ( 38 )

51. The fact that the visa is envisaged as an obligation imposed on the third‑country nationals concerned, and not as a right, can be explained, inter alia, by the function of a visa. A visa, understood as a prior authorisation to enter a territory, is a tool to control entries, and thus migration flows, just as it may also be seen to be an instrument of foreign and security policy. The action undertaken at European Union level in the visa field clearly pursues an objective of a defensive nature, namely combatting illegal immigration ( 39 ) and avoiding visa‑shopping, ( 40 ) that is to say preventing a Member State from adopting a visa policy which is manifestly more favourable to applicants, such a policy being potentially at risk of destabilising the Schengen Area on account of the lack of checks at its internal borders.

52. It is precisely for that reason that the Visa Code establishes an obligation to refuse a visa when the conditions required of the visa applicant are not met. The Court had indeed held that the automatic refusal required of the States party to the Convention for the application of the Schengen Agreement where the visa applicant does not meet the entry conditions ‘reflects the principle of cooperation between the Contracting States; this underpins the Schengen acquis and is essential to the operation of an integrated management system intended to ensure a high and uniform level of checks and surveillance along external borders which is the corollary of the freedom to cross internal borders within the Schengen Area’. ( 41 )

53. The requirements linked to the checks on external borders are found in the legal basis of the Visa Code. While the Visa Code is in fact based on Article 62(2)(b)(ii) EC, which provides that European Union legislation is to be laid down relating to ‘visas for intended stays of no more than three months, including … the procedures and conditions for issuing visas by Member States’, Article 62(2)(a) EC, also mentioned as the legal basis of the regulation concerned, refers to the adoption of ‘measures on the crossing of the external borders of the Member States which shall establish … standards and procedures to be followed by Member States in carrying out checks on persons at such borders’.

54. I thus very much doubt that, by the adoption of the Visa Code in the form of a regulation, the Member States de facto consented to such a fundamental leap in qualitative terms as that of the passage from the obligation on the Member States to refuse to issue a visa, as organised under the Schengen acquis, to the establishment of a subjective right to the issue of a visa which may be relied upon by third‑country nationals, where no textual or systemic evidence seems to support such an argument.

55. I will add, lastly, a final item of evidence which shows, in my view, that the European Union legislature did not design the Visa Code as an instrument establishing a subjective right to the issue of a visa. One of the great advances introduced by that code – advances to which I shall return a bit later – is the introduction of a right to appeal against decisions refusing a visa. ( 42 ) Nevertheless, the legislature did not expressly lay down a right to an appeal before a judicial body ( 43 ) and, by referring the matter to national law, it left the definition of the procedure for the exercise of that appeal to the discretion of the Member States. Moreover, an additional period was granted to the Member States to organise their national systems as a result and the date of application of the provision establishing that right of appeal was postponed to 5 April 2011. ( 44 ) It is apparent from the European Union Agency for Fundamental Rights Annual Report for 2011 ( 45 ) that appeals against decisions to refuse Schengen visas are brought, depending on the Member State in question, either before an administrative authority or before a quasi‑judicial body, or before a court. Those differences, which are the result both of the Member States’ reluctance to make firmer commitments as regards the procedural guarantees offered to visa applicants and of the specific difficulties which would be posed by the implementation of effective judicial protection with regard to persons who do not have access to the national territory, are again difficult to reconcile with the idea that a subjective right has been established.

3. Determining that the results obtained are consistent with the objectives pursued by the Visa Code

56. In determining that the results of the textual and systemic analysis carried out above are consistent with the objectives of the Visa Code, it is necessary to take into account the fact that that code does not only pursue the objective of establishing how the Member States participating in the Schengen Area are to conduct themselves with regard to visa applicants so as to render the procedure which they must follow and the conditions which they must apply more transparent and intelligible for the applicant, in order to ensure he is treated with dignity and in a manner which respects his human rights.

57. The Visa Code also pursues another objective linked to the fact that it forms part of the context of the cooperation and collaboration between the States participating in the Schengen Area, which have decided to put in place a system of real solidarity such that the effects of a decision taken by a Member State are not limited solely to the territory of that Member State, ( 46 ) but, on the contrary, concern the Schengen Area as a whole.

58. Thus, the Visa Code provided for not only a series of obligations on the Member States with regard to an applicant for a Schengen visa but also the objective of establishing a duty on each Member State owed to the other Member States of the Schengen Area to refuse that visa where the conditions set out by that code are not met, because of the effects which that visa is deemed to produce in all those States. In that regard, it is conceivable that the use of the verb ‘may’ in Article 24(1) of the Visa Code has an ulterior meaning beyond that which follows from a textual and systemic interpretation of that code. One might think that the European Union legislature even attributed to it a meaning linked to the objective recalled above: that of a possibility (stemming from the use of the verb ‘may’) for each State in the Schengen Area to grant a visa having erga omnes effects only where the conditions provided for in that code are met.

59. That teleological reading of the Visa Code may indeed confirm that no subjective right to the issue of a Schengen visa was established.

4. The added value of the Visa Code

60. To my mind, therefore, as European Union law and, more specifically, the Visa Code now stands, visa applicants cannot be recognised as having any right to the issue of a Schengen visa . Nevertheless, the Member States are not free to treat the visa applications submitted to them merely as they please and, even if the effects of the Visa Code do not include a subjective right being granted to the visa applicant, that code has nevertheless significantly contributed to improving the safeguards offered to that applicant.

61. It has harmonised the procedure for visa applications, inter alia, by fixing the amount of visa fees, ( 47 ) by providing for a standard form for applications for Schengen visas, ( 48 ) by clarifying the conditions under which the application is admissible ( 49 ) and by establishing an obligation, for the Member States, to make a decision on the application within a short period, ( 50 ) to give reasons for their refusal decisions ( 51 ) and to provide for the possibility of bringing an appeal where the decision is a negative one. ( 52 )

62. Apart from having gathered together the binding provisions on the conditions governing the procedure for the issue of visas in a single text, the Visa Code has also brought about concrete progress in policy in this area by making it more intelligible, more transparent and more consistent. ( 53 )

63. The harmonisation in terms of substance is, as we have seen, not so complete and tends to qualify the progress made as regards procedural harmonisation since, in the absence of precise definitions, at European Union level, of entry conditions, of risk assessment and of the grounds for refusal referred to in Articles 21 and 32(1) of the Visa Code, there is the possibility of arbitrary decision-making in the course of the procedure for the issue of a visa.

64. It thus seems essential to point out that the European Union legislature attempted to limit those risks by making the Visa Code subject to the observance of fundamental rights ( 54 ) and, in particular, the principle of human dignity. Thus, following on from the requirements in recitals 6 and 7 of the preamble to the Visa Code, Article 39 thereof requires the Member States to receive visa applicants ‘courteously’ ( 55 ) and calls on their consular staff to ‘fully respect human dignity’ and to take any measures in a manner ‘proportionate to the objectives pursued’ ( 56 ) and complying with the principle of non-discrimination. ( 57 )

65. Thus, whatever the room for manoeuvre left to the Member States in the substantive assessment of the conditions and grounds referred to in Articles 21 and 32(1) of the Visa Code, they are bound by the requirement to observe the fundamental rights of the visa applicant, first and foremost of which is his dignity, and the principles of proportionality and non-discrimination.

66. In conclusion, the Visa Code does much more than establish a subjective right to the issue of a visa: it requires the Member States to ensure not only the observance of the conditions necessary for the visa to produce effects with regard to all the Member States belonging to the Schengen Area but also that the conduct of the procedure fully respects the visa applicant’s fundamental rights, which implies, as I have already stated, that each visa application must be examined not on the basis of mere assumptions but, on the contrary, by making an overall assessment of the situation, taking proper account of the personal and human context of the individual situation behind each application.

67. For all of those reasons, I suggest that the Court state in answer to the second and third questions, considered jointly, that the Visa Code cannot be interpreted as establishing a subjective right, for visa applicants, to be issued a Schengen visa. That code nevertheless requires Member States to make a decision on applications for Schengen visas after an overall assessment of the situation, taking into proper account, besides the conditions necessary for the visa to have effects with regard to all the Member States belonging to the Schengen Area, the personal and human context of the individual situation behind each application, and after a procedure which fully respects fundamental rights, first and foremost of which is human dignity, conducted in accordance with the principles of proportionality and non‑discrimination.

V – Conclusion

68. In the light of the foregoing considerations, I propose that the Court should give the following answers to the questions referred to it by the Verwaltungsgericht Berlin: (1) For the purposes of Article 21(1) of the Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, read in conjunction with Article 32(1)(b) of that regulation, in order to refuse a visa application on the ground that the visa applicant does not intend to return, there must be reasonable doubt on the part of the authorities responsible for the examination of the application as regards the real intention of the visa applicant to return after they have taken into account all the factors necessary to ensure an objective assessment, which include both factors linked to the situation in the country of origin and factors relating to the individual situation of the applicant and to the supporting documents which he has produced. (2) Regulation No 810/2009 cannot be interpreted as establishing a subjective right, for visa applicants, to be issued a Schengen visa. That regulation nevertheless requires Member States to make a decision on applications for Schengen visas after an overall assessment of the situation, taking into proper account, besides the conditions necessary for the visa to have effects with regard to all the Member States belonging to the Schengen Area, the personal and human context of the individual situation behind each application, and after a procedure which fully respects fundamental rights, first and foremost of which is human dignity, conducted in accordance with the principles of proportionality and non-discrimination.

( 1 ) Original language: French.

( 2 ) See Report from the Commission to the Council and the European Parliament on the functioning of Local Schengen Cooperation during the first two years of implementation of the Visa Code (COM(2012) 648 final).

( 3 ) OJ 2009 L 243, p. 1.

( 4 ) OJ 2001 L 81, p. 1.

( 5 ) OJ 2006 L 105, p. 1.

( 6 ) BGBl. I of 25 February 2008, p. 162.

( 7 ) Pursuant to Article 8(2) of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ 2008 L 53, p. 52).

( 8 ) For the sake of convenience and with a view to consistency with the Visa Code, those consular authorities will be referred to throughout this Opinion as designating both the diplomatic missions and the consular posts of the Member States.

( 9 ) See recital 28 and Article 1(1) of the Visa Code.

( 10 ) Article 14(1)(d) of the Visa Code.

( 11 ) Annex II, point B of the Visa Code. This may involve, inter alia, the production of a return flight ticket or evidence of the possession of assets or relating to the integration of the applicant in the country of origin.

( 12 ) Emphasis added.

( 13 ) While the Commission’s draft proposal for a regulation merely referred to ‘doubt’ (see Article 18(7) of the Draft proposal for a Regulation of the European Parliament and of the Council establishing a Community Code on Visas (COM(2006) 403 final)), the Commission in the final text preferred to refer to a supported doubt, that is to say, to reasonable doubt.

( 14 ) Abovementioned draft proposal for a regulation (point 3.3).

( 15 ) Commission Decision of 19 March 2010 establishing the Handbook for the processing of visa applications and the modification of issued visas (C(2010) 1620 final), as amended by the Commission Decision of 4 August 2011 (C(2011) 5501 final).

( 16 ) See Article 51 of the Visa Code

( 17 ) Abovementioned Handbook for the processing of visa applications and the modification of issued visas (point 7.12).

( 18 ) Ibid.

( 19 ) Ibid.

( 20 ) See point 24 et seq. of this Opinion.

( 21 ) See Article 24 of the Visa Code. It is particularly noteworthy that the wording of that provision is that ‘[a] visa may be issued for one, two or multiple entries’ (emphasis added).

( 22 ) See Article 25 of the Visa Code.

( 23 ) See Article 26 of the Visa Code.

( 24 ) See Articles 27 to 29 of the Visa Code.

( 25 ) Emphasis added.

( 26 ) See, inter alia, recitals 18 and 22 of the Visa Code. See also judgment in Case C‑83/12 PPU Vo [2012] ECR, paragraph 36).

( 27 ) Recital 18

( 28 ) Ibid.

( 29 ) That principle has also been recognised by the European Court of Human Rights (see, inter alia, judgment of the ECHR in N. v. Finland, no. 38885/02, §158, 26 July 2005 and the case‑law cited).

( 30 ) Judgment in Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23.

( 31 ) In such a situation, see Article 1(2)(a) of the Visa Code.

( 32 ) The Stockholm Programme – An open and secure Europe serving and protecting citizens (OJ 2010 C 115, p. 1).

( 33 ) See point 5.2 of that programme.

( 34 ) Ibid. Emphasis added.

( 35 ) Article 2 of Regulation No 539/2001.

( 36 ) See, inter alia, Articles 5(1)(b) and 7(3)(a)(i) of the Schengen Borders Code.

( 37 ) See recitals 4 and 5, Article 1(2) and Article 3 of the Visa Code.

( 38 ) Article 2(2) of the Visa Code.

( 39 ) See recital 5 of Regulation No 539/2001 and recitals 3, 5 and 6 of the Visa Code. While the objective of facilitating legitimate travel is also mentioned in recital 3 of the Visa Code, clearly the objective of tackling illegal immigration has much more resonance in the Schengen acquis than in that code (see, for example, point V of the Common Consular Instructions on visas for the diplomatic missions and consular posts (OJ 2005 C 326, p. 1)).

( 40 ) Recitals 14 and 18 of the Visa Code.

( 41 ) Case C-503/03 Commission v Spain [2006] ECR I-1097, paragraph 37. On the obligation to refuse the visa, see also Updated Catalogue of Recommendations for the correct application of the Schengen Acquis and Best practices: part relating to the issue of visas, of the Drafting Group for the updating of the Schengen catalogue on issuing of visas (Doc. 12099/09 of 10 July 2009, p. 10).

( 42 ) Article 32(3) of the Visa Code.

( 43 ) It must be observed here that neither the Commission in its abovementioned draft proposal for a regulation nor the European Parliament in its Report on that regulation proposal (Lax Report of 18 April 2008, A6-0161/2008) were concerned about the lack of precision as regards whether the appeal was to be before a judicial body or not.

( 44 ) See Article 58(5) of the Visa Code.

( 45 ) European Union Agency for Fundamental Rights, Annual Report 2011 – Fundamental Rights: Challenges and achievements in 2011, p. 89 to 91.

( 46 ) With the exception of visas issued on the basis of Article 25 of the Visa Code.

( 47 ) Article 16 of the Visa Code.

( 48 ) Annex I to the Visa Code.

( 49 ) Article 18 et seq. of the Visa Code.

( 50 ) Article 23 of the Visa Code.

( 51 ) Article 32(2) of the Visa Code. Annex VI to that code provides for a standard form for notifying and stating reasons for the refusal, annulment or revocation of a visa. In accordance with that code, however, the statement of reasons is relatively succinct since it merely involves ticking a box out of the eleven grounds for refusal, annulment or revocation provided for.

( 52 ) Article 32(3) of the Visa Code.

( 53 ) See, also, the explanatory memorandum to the abovementioned draft proposal for a regulation.

( 54 ) See recital 29 of the Visa Code.

( 55 ) Article 39(1) of the Visa Code.

( 56 ) Article 39(2) of the Visa Code.

( 57 ) Article 39(3) of the Visa Code.