Naczelny Sąd Administracyjny
National case details
Registration ID: II OSK 1346/16
Instance: Cassation (review)
Case status: Pending
Area of law
Safeguards for access to justice
Relevant principles applied
Identification of the case
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- Article 60 section 1 point 2 of the Law of 12 December 2013 on Foreigners
- Article 5 of the Law on Proceedings before Administrative Courts
- Article 267(1) and (2) of the Treaty on the Functioning of the European Union 2010/C 83/01
Summary of the case
A third country national applied for a Polish visa with the purpose of visiting his family. His wife and child live in Poland and are Polish nationals. The Polish Consulate refused issuing a visa to the applicant. The applicant appealed this decision. Under Polish law the appeal against the Consulate’s decision refusing the issuance of a visa is examined by the same authority (otherwise known as a request to reconsider). The Consulate again refused to issue the visa, because of doubts as to whether the applicant would leave Poland before the visa expires.
The applicant appealed to the Voivodeship Administrative Court in Warsaw. The Court dismissed the complaint, as under article 5 of the Law on Proceedings before Administrative Courts, the Administrative Courts are not competent in cases concerning visas issued by Consulates, excluding visas issued for family members of EU citizens. The applicant claimed that his rights codified in Articles 8, 13 and 14 of the ECHR had been infringed. As a third country national who was not a family member of an EU citizen in accordance with Polish legislation on EU citizens and their family members, the applicant was deprived of the right to an effective remedy before a court. The applicant does not have a right to submit a complaint to the Voivodeship Administrative Court, although he has a wife and a child in Poland, whilst family members of other EU nationals have such a possibility.
- Administrative judicial enforcement
Effective remedy before a court.
The Court has doubts concerning the interpretation of Article 32(3) of the Visa Code in relation to Article 47 of the Charter. The legal conditions which justify issuing a visa as defined in the Visa Code signify that it is an area covered by EU law. The provision concerned constitutes a part of an EU Regulation, that is the act of law which generally does not need implementing measures and is applied directly. This is why clarifying the doubts regarding its interpretation is even more important. In this context there is a question whether the national law excluding judicial control of the Consulate’s decisions is in accordance with Article 47 of the Charter.
This matter is related to the notion of procedural autonomy of Member States to the extent which concerns their obligation to guarantee fundamental rights as defined in EU law. The procedural autonomy of Member States is understood as the competence of the state to designate the courts having jurisdiction and to determine procedural conditions governing actions at law intended to ensure the protection of the rights which individuals acquire by virtue of EU law. This principle is limited by Article 47 of the Charter. While establishing the standard of protection, CJEU jurisprudence relating to effective judicial protection has to be taken into account. Effective judicial protection is the general principle of EU law, resulting from the constitutional traditions common to Member States and protected under Article 6 and 13 of the ECHR. The notion of an effective remedy has to be interpreted in line with the jurisprudence of the ECtHR regarding Article 13. The decision to refuse the issuance of a visa can infringe the right to respect for family life protected under Article 8 of the ECHR and Article 7 of the Charter. In the present case the applicant relies on these rights because his wife and child live in Poland. The exclusion of judicial control with regard to this decision, which can infringe the right protected under the ECHR can result in an infringement of Article 13 of the ECHR.
Additionally the EU law principles of equivalence and effectiveness were mentioned in the jurisprudence of the CJEU as limiting the principle of procedural autonomy. The principle of equivalence requires that the procedural conditions governing actions at law intended to ensure the rights which individuals acquire as a result of EU law cannot be less favourable than those relating to similar actions of a domestic nature. The principle of effectiveness requires that these conditions cannot make it impossible in practice to exercise the rights acquired as a result of EU law before national courts.
Exclusion of judicial control with regard to the Consulate’s decisions refusing the issuance of a visa is doubtful in light of the obligation upon Member States to ensure an effective remedy against a decision refusing an individual a right acquired as a result of EU law. The appeal against a negative decision of the Consulate is done by reconsidering the case by the same authority in administrative proceedings, which is not contradictory.
Role of the Charter and role of the general principles on enforcement
- Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
- Right to access a court
- Explicit reference to Art. 6 ECHR
- Explicit reference to Art. 13 ECHR
The Court stated that the principle of equivalence requires that the procedural conditions governing actions at law intended to ensure the rights which individuals acquire as a result of EU law cannot be less favourable than those relating to similar actions of a domestic nature.
The Court stated that the principle of effectiveness requires that these conditions cannot make it impossible in practice to exercise the rights acquired as a result of EU law before national courts.
Elements of judicial dialogue
- Direct dialogue between CJEU and National court (preliminary reference)
- CJEU C-33/76, Rere
- CJEU C-45/76, Comet
- CJEU C-432/05, Unibet
- CJEU C-617/10, Åkeberg Fransson
CJEU ruled that Article 32(3) Schengen Visa Code read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, 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.
Additional notes on the decision
The Ombudsman asked Minister Of Foreign Affairs to prepare draft amendment of the law on proceedings before administrative courts which would enable lodging appeals to the courts against Schengen visa refusals (https://www.rpo.gov.pl/pl/content/mozliwosc-zaskarzenia-do-sadu-administracyjnego-decyzji-o-odmowie-wydania-wizy).
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