Soufiane El Hassani v Minister Spraw Zagranicznych.
Date: 2017-12-13
25


Thus, the EU legislature left to the Member States the task of deciding the nature and specific conditions of the remedies available to visa applicants.
26


In that connection, it must be recalled that, according to 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) (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 48 and the case-law cited).
27


It follows that two cumulative conditions, namely respect for the principles of equivalence and effectiveness, must be satisfied in order for a Member State to be able to assert the principle of procedural autonomy in situations which are governed by EU law (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 49).
28


Those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure judicial protection of an individual’s rights under EU law. They apply both as regards the designation of the courts and tribunals having jurisdiction to hear and determine actions based on EU law and as regards the definition of detailed procedural rules (judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 49).
29


First, in relation to the principle of equivalence, it should be borne in mind that this requires that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 50 and the case-law cited).
30


Secondly, as regards the principle of effectiveness, a national procedural rule, such as that at issue in the main proceedings, must not be such as to render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 52 and the case-law cited).
32


In that connection, the national court must take account of the fact that the interpretation of the provisions of the Visa Code, as is clear from recital 29 thereof, must be carried out in accordance with the fundamental rights and principles recognised by the Charter.
33


According to settled case-law, the fundamental rights guaranteed within the EU legal order are designed to be applied in all situations regulated by EU law, but may not be applied outside those situations. It is consonant with those limits that the Court has already stated that it has no jurisdiction to appraise, in the light of the Charter, national legislation which falls outside the framework of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see, in particular, judgment of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 72 and the case-law cited).
35


In that connection, the Court has already held that the Visa Code governs the conditions for issuing, annulling and revoking uniform visas and, therefore, the competent authorities of the Member States cannot refuse to issue a uniform visa by relying on a ground not provided for in that code (judgment of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraphs 47 and 51).
36


Although it is true that in examining a visa application the national authorities have a broad discretion as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts, the fact remains that such discretion has no influence on the fact that the authorities directly apply a provision of EU law.
37


It is clear that the Charter is applicable where a Member State adopts a decision refusing to issue a visa under Article 32(1) of the Visa Code.
38


Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection, requires, in its first paragraph, that any person whose rights and freedoms guaranteed by EU law are violated should have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article (see, to that effect, judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 51 and the case-law cited).
39


Furthermore, the second paragraph of Article 47 of the Charter provides that everyone is entitled to a hearing by an independent and impartial tribunal. Compliance with that right assumes that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues (judgment 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 55).
40


The concept of independence, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision (judgment of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 49).
41


It follows, as the Advocate General observed, in point 119 of his Opinion, that Article 47 of the Charter requires the Member States to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court.
42


Having regard to the foregoing considerations the answer to the question referred is that Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter, must be interpreted as meaning that it requires Member States to provide for an appeal procedure against decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, guarantee a judicial appeal.