R.N.N.S. and K.A. v Minister van Buitenlandse Zaken.
Date: 2020-11-24
As a preliminary point, it should be noted that Article 41 of the Charter, which is mentioned by the referring court, is not relevant for the resolution of the disputes in the main proceedings. It is clear from the wording of that provision that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union (see, to that effect, judgment of 26 March 2020, Hungeod and Others, C‑496/18 and C‑497/18, EU:C:2020:240, paragraph 63 and the case-law cited).
However, since the referring court has doubts concerning, inter alia, the scope of the statement of reasons that must accompany a final decision refusing to issue a visa on the basis of Article 32(1)(a)(vi) of the Visa Code, it should be pointed out that Article 41 of the Charter reflects a general principle of EU law, which is applicable to Member States when they are implementing that law, to the effect that the right to good administration encompasses the obligation of the administration to give reasons for its decisions (see, to that effect, judgment of 8 May 2019, PI, C‑230/18, EU:C:2019:383, paragraph 57 and the case-law cited).
In order to answer the questions referred, it must be noted that the system established by the Visa Code presupposes that the conditions for the issue of uniform visas are harmonised, which precludes any differences between the Member States as regards the determination of the grounds for refusal of such visas. The competent authorities of the Member States cannot therefore  refuse to issue a uniform visa by relying on a ground not provided for in that code (see, to that effect, judgment of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraphs 45 and 47).
The Court has held that the provisions of the Visa Code, including the right to appeal set out in Article 32(3) of that code, must be interpreted, as is clear from recital 29 thereof, in accordance with the fundamental rights and principles recognised by the Charter, which is applicable where a Member State adopts a decision refusing to issue a visa under Article 32(1) of that code (see, to that effect, judgments of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraphs 32 and 37, and of 29 July 2019, Vethanayagam and Others, C‑680/17, EU:C:2019:627, paragraph 79).
In that respect, it is settled case-law that if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him  or her is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information, so as to make it possible for him  or her to defend his  or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question (see, to that effect, judgments of 15 October 1987, Heylens and Others, 222/86, EU:C:1987:442, paragraph 15, and of  4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraph 53).
In that respect, the competent national authorities have a broad discretion, in examining a visa application, as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts (see, to that effect, judgments of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraph 60, and of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 36). The judicial review of that discretion is limited, therefore, to ascertaining whether the contested decision is based on a sufficiently solid factual basis and verifying that it is not vitiated by a manifest error (see, by analogy, judgment of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraphs 45 and 46).
It should also be noted that the EU legislature left to the Member States the task of deciding the nature and specific conditions of the remedies available to visa applicants, provided however that in doing so they respect the principles of equivalence and of effectiveness (see, to that effect, judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraphs 25 and 26).