Sahar Fahimian v Bundesrepublik Deutschland.
Date: 2017-04-04
30


According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (see, inter alia, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 22 and the case-law cited).
31


In the first place, as regards the general scheme of Directive 2004/114, Article 5 provides that the admission of a third country national to the territory of a Member State pursuant to the directive is to be subject to the verification of documentary evidence showing that the applicant meets both the general conditions laid down in Article 6 of the directive and also, where the third country national is seeking admission for study purposes, the specific conditions laid down in Article 7 of the directive (see, to that effect, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 23).
32


In particular, the Member States are to verify whether, under Article 6(1)(d) of Directive 2004/114, read in the light of recital 14 of the directive, there are grounds relating to the existence of a threat to public policy, public security or public health which may justify a refusal to admit a third country national (judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 24).
33


Pursuant to Article 12 of Directive 2004/114, students from third countries must be issued with a residence permit where they meet the general and specific conditions exhaustively listed in Articles 6 and 7 of the directive (see, to that effect, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 27).
34


In the second place, as regards the objectives of Directive 2004/114, it can be seen from Article 1(a) read in conjunction with recital 24 of the directive that its purpose is to determine the conditions for the admission of third country nationals to the territory of Member States for study purposes, for a period exceeding three months (see, inter alia, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 28).
35


The Court has held that, according to recitals 6 and 7 of Directive 2004/114, the directive is intended to promote the mobility of students who are third country nationals to the European Union for the purpose of education, that mobility being intended to promote Europe as a world centre of excellence for studies and vocational training (judgment of 21 June 2012, Sommer, C‑15/11, EU:C:2012:371, paragraph 39).
36


A Member State may not therefore, in relation to the admission of third country nationals for study purposes, introduce conditions additional to those laid down in Articles 6 and 7 of Directive 2004/114, as that would run counter to the objectives pursued by the directive (see, inter alia, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 30).
37


On the other hand, Directive 2004/114 allows the competent national authorities a margin of discretion in assessing whether the general and specific conditions laid down in Articles 6 and 7 of the directive are met, in particular whether grounds relating to the existence of a threat to public security preclude the admission of the third country national concerned (see, to that effect, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 33).
39


The Court has, however, explained that the concept of ‘public security’ covers both the internal security of a Member State and its external security. Public security may thus be affected by a threat to the functioning of institutions and essential public services and the survival of the population, as well as by the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations, or a risk to military interests (see, inter alia, judgments of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraphs 43 and 44, and of 15 February 2016, N, C‑601/15 PPU, EU:C:2016:84, paragraph 66).
40


As regards the condition of the existence of a threat to public security, it must be observed that, in contrast inter alia to Article 27(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 7, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), which requires that a measure taken in the name of public security must be based exclusively on the personal conduct of the individual concerned and that that conduct must represent a ‘genuine, present and sufficiently serious threat’ to that fundamental interest of society (see, inter alia, judgments of 22 May 2012, I, C‑348/09, EU:C:2012:300, paragraph 30; of 13 September 2016, Rendón Marin, C‑165/14, EU:C:2016:675, paragraph 84; and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 40), it is apparent from Article 6(1)(d) of Directive 2004/114, read in the light of recital 14 of that directive, that the admission of a third country national may be refused if the national authorities competent to process that national’s application for a visa consider, on the basis of an assessment of the facts, that he is a threat, if only ‘potential’, to public security. That assessment may thus take into account not only the personal conduct of the applicant but also other elements relating, in particular, to his professional career.
41


The assessment of the individual situation of an applicant for a visa may involve complex evaluations based inter alia on the personality of that applicant, his integration in the country where he resides, the political, social and economic situation of that country, and the potential threat to public security represented by the admission of that applicant for study purposes to the territory of the Member State concerned, in view of the risk that the knowledge acquired by that applicant during his studies might subsequently be used in his country of origin for purposes prejudicial to that public security. Such evaluations involve predicting the foreseeable conduct of the applicant for the visa, and must be based inter alia on an extensive knowledge of his country of residence and on the analysis of various documents and of the applicant’s statements (see, to that effect, judgment of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraphs 56 and 57).
42


In those circumstances, the competent national authorities enjoy a wide discretion when assessing the relevant facts in order to determine whether the grounds set out in Article 6(1)(d) of Directive 2004/114, relating to the existence of a threat inter alia to public security, preclude the admission of the third country national (see, by analogy, judgment of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraph 60).
44


As the Court has held, in the examination of the conditions of admission there is nothing to prevent the competent national authorities, in accordance with recital 15 of Directive 2004/114, from requiring all the evidence necessary to assess the coherence of the application for admission (judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 34). If the information provided in support of the visa application is inadequate for assessing whether there is a threat to public security, Article 18(2) of the directive states that the authorities may require the applicant to provide the further information that they need.
45


As regards judicial review of the discretion enjoyed by the competent national authorities in connection with Article 6(1)(d) of Directive 2004/114, the national court must, while taking account of the distribution of the burden of proof as described in the previous paragraph, ascertain in particular whether the contested decision is based on a sufficiently solid factual basis.
46


Moreover, since the competent national authorities have a wide discretion in assessing the facts, judicial review is limited, as far as that assessment is concerned, to the absence of manifest error. Judicial review must also relate to compliance with procedural guarantees, which is of fundamental importance. Those guarantees include the obligation for those authorities to examine carefully and impartially all the relevant elements of the situation in question (see, to that effect, judgments of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraphs 60 and 61, and of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 69), and also the obligation to give a statement of the reasons for their decision that is sufficient to enable the national court to ascertain, in connection with the right of challenge provided for in Article 18(4) of Directive 2004/114, whether the factual and legal elements on which the exercise of the power of assessment depends were present (see, by analogy, judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 69). On the latter point, it must be noted that, according to recital 14 of Directive 2004/114, a refusal of admission of a third country national for study purposes must be based on ‘duly justified grounds’.