Vethanayagam and Others (Refusal to issue a Schengen visa - Opinion) [2019] EUECJ C-680/17

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(Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht (District Court, The Hague, sitting in Utrecht) (Netherlands))

(Reference for a preliminary ruling — Area of freedom, security and justice — Visa Code — Article 32 — Refusal to issue a Schengen visa — Right to appeal — Standing — Article 8 — Representation agreements — Competent authority — Member State that has taken the final decision to refuse a visa)

1. This request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht (District Court, The Hague, sitting in Utrecht (Netherlands), (‘the referring court’)), gives the Court the opportunity to clarify the legal regime applicable to the issue and refusal of visas under Regulation (EC) No 810/2009 establishing a Community Code on Visas (‘the Visa Code’). (2) Primarily, the reference concerns two aspects of that regime. The first is the consular representation agreements between Member States for the purpose of issuing and refusing visas in third countries where the competent Member State itself has no consular presence and the extent of such representation. The second relates to appeals against decisions refusing a visa and more particularly (i) determining which Member State takes the final decision when a representation agreement is in place and is thus competent for an appeal against that decision and (ii) whether sponsors have standing to appeal in their own name against a decision refusing a visa.

2. The first subparagraph of Article 47 of the Charter of Fundamental Rights of the European Union states that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal. (3) The third subparagraph thereof provides that legal aid must be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

3. In accordance with Article 51(1), the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union. They apply to Member States only when they are implementing EU law.

4. The Visa Code was adopted on the legal basis of Article 62(2) TEC (now Article 77 TFEU) (4) and aims, by the establishment of a common corpus of legislation, to promote the ‘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’. (5)

5. Recital 4 states that ‘Member States should be present or represented for visa purposes in all third countries whose nationals are subject to visa requirements. Member States lacking their own consulate in a given third country or in a certain part of a given third country should endeavour to conclude representation arrangements in order to avoid a disproportionate effort on the part of visa applicants to have access to consulates’.

6. Recital 13 lists the various forms of cooperation between Member States that should be envisaged, such as, inter alia, limited representation, common application centres and cooperation with external service providers. Member States are at liberty to determine the type of organisational structure which they will use in each third country.

7. According to recital 18, ‘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 22 states that in order to ensure the harmonised application of the Visa Code at operational level, instructions should be drawn up on the practice and procedures to be followed by Member States when processing visa applications.

9. Recital 34 addresses the position of Switzerland. Regarding that country, the Visa Code constitutes a development of the provisions of the Schengen acquis within the meaning 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. (6)

10. Article 1(1) defines the scope of the Visa Code as being to establish ‘the procedures and conditions for issuing visas for transit through or intended stays on the territory of the Member States not exceeding 90 days in any 180-day period’. In accordance with Article 1(2), those provisions apply to any third-country national required to be in possession of a visa pursuant to Regulation (EC) No 539/2001. (7)

11. Article 4(1) provides that ‘applications shall be examined and decided on by consulates’.

12. Article 5(1)(a) defines the Member State competent for examining and deciding on an application for a uniform visa as being, inter alia, ‘the Member State whose territory constitutes the sole destination of the visit(s)’. In accordance with Article 5(4), Member States are to cooperate in order to prevent a situation arising in which an application cannot be examined and decided on because the competent Member State under the Visa Code is neither present nor represented in the third country where the applicant lodges the application.

13. Article 6(1) provides that ‘an application shall be examined and decided on by the consulate of the competent Member State in whose jurisdiction the applicant legally resides’.

‘1. A Member State may agree to represent another Member State that is competent in accordance with Article 5 for the purpose of examining applications and issuing visas on behalf of that Member State. A Member State may also represent another Member State in a limited manner solely for the collection of applications and the enrolment of biometric identifiers.

2. The consulate of the representing Member State shall, when contemplating refusing a visa, submit the application to the relevant authorities of the represented Member State in order for them to take the final decision on the application within [certain time limits].

4. A bilateral arrangement shall be established between the representing Member State and the represented Member State containing the following elements:

(a) it shall specify the duration of such representation, if only temporary, and procedures for its termination;

(b) it may, in particular when the represented Member State has a consulate in the third country concerned, provide for the provision of premises, staff and payments by the represented Member State;

(c) it may stipulate that applications from certain categories of third-country nationals are to be transmitted by the representing Member State to the central authorities of the represented Member State for prior consultation …;

(d) by way of derogation from paragraph 2, it may authorise the consulate of the representing Member State to refuse to issue a visa after examination of the application.

5. Member States lacking their own consulate in a third country shall endeavour to conclude representation arrangements with Member States that have consulates in that country.

6. With a view to ensuring that a poor transport infrastructure or long distances in a specific region or geographical area does not require a disproportionate effort on the part of applicants to have access to a consulate, Member States lacking their own consulate in that region or area shall endeavour to conclude representation arrangements with Member States that have consulates in that region or area.

9. If the consulate of the representing Member State decides to cooperate with an external service provider …, such cooperation shall include applications covered by representation arrangements. The central authorities of the represented Member State shall be informed in advance of the terms of such cooperation.’

15. Chapter II of Title III governs visa applications. Article 11(1) of that chapter provides that applicants must submit an application form as set out in Annex I. The form must be available, in accordance with Article 11(3), in the official languages of (a) the Member State for which a visa is requested, (b) the host country, (c) the host country and the Member State for which a visa is requested, or (d) of the representing Member State, in case of representation. Article 11(4) provides that ‘if the application form is not available in the official language(s) of the host country, a translation of it into that/those language(s) shall be made available separately to applicants’.

16. Chapter IV of Title III is entitled ‘issuing of the visa’. Article 32 thereof (‘refusal of a visa’) provides that:

(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, or for the transit to a third country into which he is certain to be admitted, or is not in a position to acquire such means lawfully;

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.’

17. The purpose of the agreement is to organise cooperation between the European Union and Switzerland as regards the implementation, practical application and further development of the Schengen acquis. (8) Thus, in accordance with Article 2(1), (2) and (3) the provisions listed in Annexes A and B to the agreement and the acts and measures of the European Union and the European Community amending or building upon those provisions must be implemented and applied by Switzerland.

18. Article 8(1) provides that the Mixed Committee (9) keeps under constant review developments in the case-law of the Court of Justice and in the case-law relating to such provisions of the competent Swiss courts, and that a mechanism is set up to ensure regular mutual transmission of information regarding such case-law.

19. In accordance with Article 8(2), Switzerland has the right to submit statements of case or written observations to this Court in cases where a court in a Member State has applied for a preliminary ruling under Article 267 TFEU concerning the interpretation of the provisions referred to in Article 2.

20. Article 9 provides that each year Switzerland is to report to the Mixed Committee how its administrative authorities and courts have applied and interpreted the relevant provisions of the agreement as interpreted by the Court of Justice. If, within two months of being notified of a substantial divergence between the case-law of the Court of Justice and that of the Swiss courts or of a substantial divergence between the authorities of the Member States concerned and the Swiss authorities in their application of the relevant provisions, the Mixed Committee is unable to ensure a uniform application and interpretation, the dispute resolution procedure provided for in Article 10 is initiated. Should that procedure be unsuccessful, the EU-Switzerland Schengen association agreement will be terminated.

21. The representation agreement between the Netherlands and Switzerland applicable at the material time (‘the representation agreement’) entered into force on 1 October 2014. It states that Switzerland will represent the Netherlands as regards all types of Schengen visas in, inter alia, Sri Lanka.

22. In accordance with Point 2 of that agreement, ‘representation’ includes, inter alia, ‘refusing to issue the visa when appropriate in conformity with Article 8(4)(d) of the Visa Code and dealing with appeals, in accordance with the national law of the representing Party (Article 32(3) of the Visa Code) …’.

23. The order for reference contains little information about the applicable national law. I record only that Article 1:2(1) of the Algemene wet bestuursrecht (General Law on Administrative Law) provides that interested parties within the meaning of that article can lodge an objection or an appeal against a decision. In the referring court’s view that means that in respect of visa applications a sponsor is an interested party and should be able to lodge an appeal against the rejection of a visa application in his own name.

24. Mr Sumanan Vethanayagam and Mrs Sobitha Sumanan (‘Mr and Mrs Vethanayagam’) are a married couple. They are Sri Lankan nationals living in Sri Lanka.

25. Mr and Mrs Vethanayagam applied for Schengen visas to visit their sister/sister-in-law, Ms Kamalaranee Vethanayagam (‘the sponsor’), a Netherlands national, and her son in the Netherlands. Since the Netherlands had no consular services in Sri Lanka, the applications were made — on the basis of the representation arrangements pursuant to the Swiss/Netherlands representation agreement — through VFS Global in Jaffna (an external service provider) which deals with visa applications in the north of Sri Lanka for Switzerland.

26. On 19 August 2016 Mr and Mrs Vethanayagams’ applications were rejected on the grounds that they had failed to provide proof of sufficient means of support for their intended stay in the Netherlands and a guarantee of their return to Sri Lanka within the meaning of Article 32(1)(iii) of the Visa Code (‘the refusal decision’). Mr and Mrs Vethanayagam were informed that they could appeal to the Swiss competent authorities against the refusal decision.

27. On 2 December 2016 the Swiss authorities rejected the appeal of Mr and Mrs Vethanayagam and the sponsor (‘the applicants’) against the refusal decision. On 6 January 2017, the applicants sought judicial review of that decision before the Federal Administrative Court (St Gallen, Switzerland). That court found that the applicants could not bring proceedings without incurring costs.

28. The applicants began parallel proceedings in the Netherlands seeking to challenge the refusal decision. By decision of 28 September 2016, the Netherlands authorities rejected their claims on the grounds that they lacked competence on the matter. The applicants have brought proceedings before the referring court seeking judicial review of that decision.

29. In addition, Mr and Mrs Vethanayagam and their sponsor applied for short-term visas at the Visadienst (Visa Service) in the Netherlands. By decision of 18 October 2016, the Minister van Buitenlandse Zaken (the Minister for Foreign Affairs) refused to process those applications and by decision of 23 November 2016 he declared the applicants’ challenges against that refusal inadmissible.

30. The applicants also sought judicial review of that decision. They submitted that it is the Netherlands, the Member State of their main destination, that should process their visa applications and deal with the challenges they have brought against the visa refusals. Switzerland has acted only as the representative of the Netherlands. The complete surrender of competence and responsibility for visa procedures to Switzerland as the representing State is contrary to Article 47 of the Charter.

31. The Minister van Buitenlandse Zaken (Minister for Foreign Affairs) countered that the competence to receive visa applications and to decide on them was transferred to Switzerland in accordance with Article 8(4)(d) of the Visa Code. Thus, under Article 32(3) of the Visa Code, an appeal against the decision to refuse a visa should be lodged in Switzerland.

32. Against that background, the referring court entertains doubts as to the interpretation of the Visa Code regarding (i) the position of a sponsor in appeals against a decision to refuse a visa application, (ii) the concept of representation under Article 8(4)(d) of the Visa Code and (iii) the compatibility of that system with the right to effective legal protection laid down in Article 47 of the Charter. Accordingly, it has referred the following questions for a preliminary ruling:

‘(1) Does Article 32(3) of the Visa Code preclude a sponsor, as an interested party in connection with the visa applications of applicants, from having a right of objection and appeal in his or her own name against the refusal of those visas?

(2) Should representation, as regulated in Article 8(4) of the Visa Code, be interpreted as meaning that responsibility (also) remains with the represented State, or that responsibility is wholly transferred to the representing State, with the result that the represented State itself is no longer competent?

(3) In the event that Article 8(4)(d) of the Visa Code allows both forms of representation as referred to in Question 2, which Member State must then be regarded as the Member State that has taken the final decision as referred to in Article 32(3) of the Visa Code?

(4) Is an interpretation of Article 8(4) and Article 32(3) of the Visa Code according to which visa applicants can lodge an appeal against the rejection of their applications solely with an administrative or judicial body of the representing Member State, and not in the represented Member State for which the visa application was made, consistent with effective legal protection as referred to in Article 47 of the Charter? Is it relevant to the answer to that question that the avenue of legal recourse offered should guarantee that an applicant has the right to be heard, that he has the right to bring proceedings in a language of one of the Member States, that the level of the charges or court fees for the procedures governing the lodging of objections and appeals are not disproportionate for the applicant and that there is a possibility of funded legal aid? Given the margin of discretion enjoyed by the State in matters relating to visas, is it relevant to the answer to this question whether a Swiss court has sufficient insight into the situation in the Netherlands to be able to provide effective legal protection?’

33. Written observations were submitted by Mr and Mrs Vethanayagam and their sponsor together, the Czech, Danish, Estonian, French, Italian, Netherlands, Polish and Swiss Governments, the European Commission, the Council of the European Union and the European Parliament. At the hearing on 6 December 2018 Mr and Mrs Vethanayagam and their sponsor, the Czech, Danish and Netherlands Governments, the Commission, the Council and the European Parliament made oral submissions.

34. The Schengen area is founded upon the Schengen Agreement of 1985, (10) by which the States signatory agreed to abolish all internal borders and to establish a single external frontier.

35. The Visa Code develops the Schengen acquis in relation to third-country nationals who wish to obtain a short stay visa for the Schengen area. (11) It forms part and parcel of the objective of gradually establishing an area of freedom, security and justice under Article 67 TFEU. (12) It lays down a uniform regime, under which visas for up to three months are issued by Member States. Some 14.6 million such applications were lodged in 2017 with the consulates of the Member States. (13) The importance of that legal regime is therefore obvious.

36. The Visa Code replaced a number of prior rules governing the issue of visas by the Member States, contained in several legal instruments of different legal nature. (14) Its purpose is thus to put an end to the disparate rules that previously existed in order to avoid visa shopping and different treatment of visa applicants. (15) The participating States have agreed to harmonise the conditions and procedures for issuing visas for intended stays in their territory. (16) Indeed, when classifying a measure as falling within the Schengen acquis or as a development of that acquis, the need for coherence and the need — where that acquis evolves — to maintain that coherence must be taken into account. (17)

37. However, the Visa Code does not bring about complete harmonisation. (18) Recital 3 expressly mentions that by the establishment of a common corpus of legislation the Visa Code aims to promote the ‘further development of the common visa policy as part of a multi-layered system … through further harmonisation of national legislation and handling practices at local consular missions’. The harmonised application of the Visa Code is presented as an objective to be attained, rather than a state of affairs following solely from the system put in place by that code. (19)

38. Although not mentioned expressly, mutual trust is essential for the application of the Visa Code. The Hague Programme, underpinning the adoption of the Visa Code, (20) emphasises the need for real and substantial progress towards enhancing mutual trust and promoting common policies. (21) As the Court has already held, the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. (22) That is particularly true in 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 one Member State are not limited solely to the territory of that Member State but, on the contrary, concern the Schengen area as a whole. (23) Within that context, the Member States have established the possibility to represent each other for the purposes of issuing and refusing visas (Article 8 of the Visa Code). (24) Those aspects demonstrate the high level of mutual trust necessary for the implementation of the Visa Code.

39. By its first question the referring court asks whether Article 32(3) of the Visa Code precludes Member States from giving sponsors of visa applicants a right to appeal in their own name against the refusal of a visa application.

40. The Netherlands Government and the Commission submit that that question is not relevant in the present case, since it concerns the situation under Netherlands Law, whilst it is Switzerland that is competent to deal with the appeal against the refusal decision in accordance with Swiss law.

41. That submission should be rejected since it prejudges the answer that will be given to the other questions referred.

42. According to settled case-law, it is for the national court hearing a dispute to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (25) Furthermore, in the present case the sponsor has indeed appealed before the referring court in her own name.

43. Against that background, I shall turn to the question of who has the right to appeal against a decision to refuse a visa under Article 32(3) of the Visa Code.

44. That provision states clearly that ‘applicants who have been refused a visa’ have the right to appeal. (26) Thus, as the Court has already held, where there has been a final refusal to issue a visa, that provision expressly gives visa applicants the opportunity to bring an action in accordance with the national legislation of the Member State that took that decision. (27)

45. That said, does the Visa Code leave it open to the Member States to permit an applicant’s sponsor to bring, in his own name, an action against such a refusal decision; or does it preclude an additional right of action?

46. The applicants, the Commission, and the Czech, Estonian, Netherlands and Swiss Governments consider that such an additional right under national law is permissible. They point to the second sentence of Article 32(3) of the Visa Code, which provides that appeals ‘shall be conducted against the Member State that has taken the final decision and in accordance with the national law of that Member State’.

47. The Danish, Italian and Polish Governments support the opposite view. For them, Article 32(3) of the Visa Code limits any right of appeal to the applicants. The fact that an applicant has a sponsor cannot alter the scope of remedies provided for in the Visa Code.

49. The Court has already held that the EU legislature has left to the Member States the task of deciding the nature and specific conditions of the remedies available to visa applicants. 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). (28)

50. Against that background, I emphasise that the Visa Code does not define the position of sponsors in a uniform manner.

51. The document that involves the sponsor in the procedure for obtaining a visa (the sponsorship form) is drawn up by each Member State. (29) The Visa Code does not provide for a model sponsorship form in the annexes — indeed it leaves to the Member States the discretion to decide whether or not an actual sponsorship form (rather than, for example, a letter of sponsorship) is needed. The only requirement concerns language: the sponsorship form (if it exists) should be drawn up not only in the competent Member State’s official language(s) but also in at least one other official language of the institutions of the European Union (Article 14(4), last subparagraph).

52. The Visa Code is silent as to any notification to the sponsor of decisions to issue, refuse, revoke or annul a visa. (30)

53. The Visa Code does not define the qualities a sponsor must possess nor does it lay down any conditions that a sponsor must fulfil. The Visa Handbook (which I recall here has no binding legal effect but is merely an illustration of how the Commission interprets the Visa Code) indicates that sponsors may be not only natural persons but also private companies and any other legal persons.

54. In short, the Visa Code has almost nothing to say about the legal situation of sponsors. It follows that the relevant issues are within national procedural autonomy, subject to the principles of equivalence and effectiveness.

55. In my view, that includes the possibility for sponsors to introduce, in their own name, an appeal against the refusal of a visa under national procedural rules, as provided for by Article 32(3) of the Visa Code.

56. I merely add that those national procedural rules must ensure that the sponsor’s appeal rights (if any) are without prejudice to the visa applicant’s right of appeal against the refusal decision stemming directly from the Visa Code. That said, if a visa applicant has already appealed against a refusal decision, it is difficult to conceive how the sponsor could introduce a second appeal against the same decision.

57. It is for the referring court, which alone has jurisdiction to interpret its national law, to determine whether and to what extent the review system at issue in the main proceedings satisfies those requirements. (31)

58. I therefore conclude that Article 32(3) of the Visa Code does not preclude Member States from giving sponsors of visa applicants a right to appeal in their own name against the refusal of a visa application. That right must however be without prejudice to the applicant’s right of appeal.

59. Questions 2 and 3 are best examined together. The referring court there seeks guidance, in essence, as to which Member State should be considered as taking the final decision within the meaning of Article 32(3) of the Visa Code in circumstances where there is a representation agreement in place authorising the representing Member State to refuse a visa in accordance with Article 8(4)(d) of the Visa Code.

60. The Visa Code does not define the expression ‘Member State that has taken the final decision’ for the refusal of a visa (and is thus competent to entertain an appeal against that refusal) in the context of that provision.

61. In accordance with the need for a uniform application of EU law and the principle of equality, the wording of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, and that interpretation must take into account, inter alia, the context of that provision and the objective pursued by the rules of which it is part. (32)

62. Two diametrically opposed positions have been canvassed before the Court. The Czech, Danish, Estonian, French, Netherlands, Polish and Swiss Governments and the Commission submit that where a bilateral representation arrangement is concluded under Article 8(4)(d) of the Visa Code, everything transfers to the representing State: both the decision-making itself and dealing with any subsequent appeal. The applicants and the Italian Government submit that the final decision should be attributed to the represented Member State which is thus competent to deal with appeals against the refusal decision.

63. I consider that, where a representation agreement is made under Article 8(4)(d) of the Visa Code, competence to rule on an appeal against a decision to refuse a visa remains with the represented Member State.

64. The starting point of my analysis is the concept of the ‘competent Member State’ to examine and decide on a visa application under the Visa Code. Article 5(1) to (3) of the Visa Code identify that Member State for different types of visa. In the case at hand, the competent Member State is the State which was the sole destination for the visit: the Netherlands. Under the general rule on consular territorial competence introduced by Article 6(1) of the Visa Code, it was for that Member State’s consulate in the third country in whose jurisdiction the applicant legally resides to examine and decide on the application. It would then be that Member State’s judicial authorities that were competent to deal with an appeal against that decision under Article 32(3) of the Visa Code. That is the general rule of competence under the Visa Code.

65. It is also what I would describe as the ‘natural forum’ for such an appeal. It corresponds to the sole or main destination of the visa applicants and to the Member State with which they have a link for the purposes of their intended short stay in the territory of the Member States (which is what brings them within the scope of the Visa Code).

66. Against that general background, Article 8 of the Visa Code then makes provision for representation arrangements between Member States so as to ensure that applicants for visas can apply locally, (33) rather than having to travel to the nearest consulate handling visa applications of the Member State whose territory they wish to enter (which would sometimes involve them travelling long distances — perhaps, indeed, to another country).

68. When Article 8 describes the scope and possible forms of such representation arrangements, it explains (in paragraph 1) that ‘a Member State may agree to represent another Member State that is competent in accordance with Article 5 for the purpose of examining applications and issuing visas on behalf of that Member State’ (emphasis added). (34) Alternatively, representation may be limited solely ‘for the collection of applications and the enrolment of biometric identifiers’. There, a fortiori, all decision-making remains with the represented Member State.

69. Article 8(2) then envisages as standard a type of representation under which, when contemplating refusing a visa, the consulate of the representing Member State is required to submit the visa application to the relevant authorities of the represented Member State in order for them to take the final decision on the application. It is clear that the EU legislator originally envisaged that Article 8(2) type representation would be the rule. By way of exception, Article 8(4)(d) provides for a type of representation under which, ‘by way of derogation from paragraph 2, [the represented Member State] may authorise the consulate of the representing Member State to refuse to issue a visa after examination of the application’ (emphasis added). (35) However, there is no suggestion that competence (as distinct from which Member State processes an application) is thereby either transferred or displaced. The Member State defined as competent by Article 5 retains that competence for the purposes specified. The representing Member State is acting ‘on behalf of’ the competent Member State.

70. The standard form used to notify (inter alia) the refusal of a visa application (Annex VI to the Visa Code) echoes the wording of Article 8(1). Thus, it opens with the words, ‘The ____________ Embassy / Consulate-General / Consulate / [other competent authority] in _________________ [on behalf of (name of represented Member State])’ (emphasis added). The phrase in square brackets is evidently to be included where a representation arrangement is in place. (36) It is there to inform the applicant that the representing Member State is taking the refusal decision as the agent or representative of the competent Member State which is being represented.

71. It thus follows from an analysis of the wording and the scheme of the Visa Code that (i) the competent Member State to issue and refuse visas is, inter alia, the one whose territory constitutes the sole destination of the visit (Article 5); (ii) the competent Member State may be represented by another Member State for the purposes of collection of applications (Article 8(1) in fine), issuing visas (Article 8(1) and (2)) or both issuing and refusing visas (Article 8(1) and (4)(d)); (iii) the rules on competence laid down in Article 5 of the Visa Code constitute the basis of representation arrangements and are not altered; (iv) when refusing a visa, the representing Member State acts ‘on behalf of’ the represented Member State (Article 8(1) in conjunction with Article 8(4)).

72. Against that background, I turn to the question of which Member State’s judicial authorities are competent for appeals under Article 32(3) of the Visa Code.

73. Article 32(1) and (2) deal, respectively, with the circumstances in which visas shall be refused and with the notification of such refusal to the visa applicant on the standard form in Annex VI to the Visa Code. Article 32(3) introduces the visa applicant’s right of appeal in case of a refusal ‘against the Member State that has taken the final decision on the application’.

74. Under ‘Comments’ (immediately preceding the official stamps and signature), the standard form in Annex VI to the Visa Code concludes with the following: ‘The person concerned may appeal against the decision to refuse/annul/revoke a visa as provided for in national law.’

75. Where the competent Member State is itself present through its consulate in the third country and is itself dealing with the visa application, the procedure is clear enough. The competent Member State will assess the application and decide whether to grant or to refuse it. That will be done in its own name, exercising its competence in accordance with Article 5. Its name will figure, without any qualification, on the refusal form as the competent State; and an appeal under Article 32(3) will lie to its courts in accordance with its national law.

76. Obviously, where an Article 8(4)(d) type representation arrangement is in place, the representing State will actually be processing the application and taking the refusal decision. It is, however, doing so ‘on behalf of’ the Member State that is competent to take that decision in accordance with the criteria laid down in Article 5.

77. The representing Member State acts under the authorisation of the represented Member State: under Article 8(4)(d), a bilateral arrangement ‘may authorise the consulate of the representing Member State to refuse to issue a visa’ (emphasis added). That decision is indeed the ‘final decision’ referred to in Article 32(3). But the representing Member State is only acting ‘on behalf of’ the represented Member State (Article 8(1)). The extent of that representation is clearly communicated to the applicants by the refusal decision (Annex VI to the Visa Code). Thus, the final decision remains within the competence of the represented Member State and is clearly attributed to the represented Member State in the refusal decision notified to the visa applicant. Therefore, the represented Member State remains competent for any appeal against that refusal decision.

79. Representation agreements are concluded precisely with the objective of avoiding putting visa applicants to disproportionate effort, travel and expense in order to have access to consulates. (37) The Visa Code, as is clear from recital 29 thereof, respects the fundamental rights and principles recognised by the Charter and the ECHR should be interpreted accordingly. (38) The treatment of visa applicants in all States participating in the Schengen acquis is to be presumed to comply with the requirements of the Charter and the ECHR. (39)

80. That includes effective judicial protection as a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Article 47 of the Charter and Articles 6 and 13 of the ECHR. (40)

81. Recognising the jurisdiction of the represented Member State to deal with appeals both permits visa applicants to access what I consider to be their ‘natural forum’ (see point 65 above) and best reflects the principle of effective judicial protection. That solution avoids obliging visa applicants to appeal before the judicial authorities of a Member State with which they have no link and which is not their destination. It thus avoids requiring them to expend disproportionate effort in order to have access to judicial review.

82. In the context of the case at hand that solution presents the additional advantage of allowing the responsible national court to request a preliminary ruling from this Court as to the interpretation of the Visa Code. The opposite solution would have as its consequence that the courts of a non-EU State would be competent. However, those courts do not have the possibility of addressing a request for a preliminary ruling to this Court; and the mechanism set up to ensure uniform application and interpretation by the EU-Switzerland Schengen association agreement (41) is no equivalent to the procedure under Article 267 TFEU.

83. Moreover, the Visa Code is intended to provide coherence and equal treatment between applicants. (42) In a situation where applications for visas to visit the same Member State (for example, the Netherlands) may be refused by consulates of different Member States throughout the world on the basis of representation agreements concluded under Article 8(4)(d) of the Visa Code, holding that appeals against those decisions should be introduced before the judicial authorities of the different representing Member States would risk giving rise to different treatment of appeals by applicants who wish to visit the same Member State.

84. I add that practical difficulties may also arise where a particular Member State has a widespread network of consulates. Sometimes, it may be the only Member State with a consulate in a particular country. For example France is the only Member State present in Djibouti and it represents 17 other Member States there for the purposes of visa applications.(43) If, (contrary to my analysis) France were to be deemed to have become the competent Member State and to have taken the final decisions refusing visa applications, the French courts would then become responsible for adjudicating upon appeals against refusal decisions affecting visa applicants wishing to visit 17 different countries.

85. I therefore conclude that where a representation arrangement is in place authorising the representing Member State to refuse a visa in accordance with Article 8(4)(d) of the Visa Code, the represented Member State is the Member State taking the final decision within the meaning of Article 32(3) of the Visa Code. The judicial authorities of the represented Member State are therefore competent to decide on appeals against that refusal decision.

86. The fourth question essentially asks whether an interpretation of Articles 8(4)(d) and 32(3) of the Visa Code holding that it is the representing Member State which is competent to deal with appeals against refusal decisions is consistent with effective judicial protection as referred to in Article 47 of the Charter.

87. That question only becomes relevant if the Court holds that it is the representing State which is competent to deal with appeals against refusal decisions under Article 8(4)(d) of the Visa Code. I have indicated that in my view interpreting those provisions so that it is the represented Member State that is competent for deciding on appeals against decisions to refuse a visa is the solution that respects the right to effective judicial protection enshrined in Article 47 of the Charter. In my view, there is therefore no need to consider Question 4 further.

88. In the light of all the foregoing considerations I suggest that the Court should answer the questions posed by the Rechtbank Den Haag, zittingsplaats Utrecht (District Court, The Hague, sitting in Utrecht, Netherlands) as follows:

– Article 32(3) of 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) does not preclude Member States from giving sponsors of visa applicants a right to appeal in their own name against the refusal of a visa application. That right must however be without prejudice to the applicant’s right of appeal.

– Where a representation arrangement is in place authorising the representing Member State to refuse a visa in accordance with Article 8(4)(d) of Regulation No 810/2009, the represented Member State is the Member State taking the final decision within the meaning of Article 32(3) of Regulation No 810/2009. The judicial authorities of the represented Member State are therefore competent to decide on appeals against that refusal decision.

2 Regulation of the European Parliament and of the Council of 13 July 2009 (OJ 2009 L 243, p. 1), last amended by Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1).

3 OJ 2010 C 83, p. 389 (‘the Charter’). That right is based on Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). See the Explanations relating to the Charter (OJ 2007 C 303, p. 17) (‘the Explanations to the Charter’).

5 Recital 3, citing point 1.7.3 of the Hague Programme: strengthening freedom, security and justice in the European Union (OJ 2005 C 53, p. 1, ‘the Hague Programme’).

6 OJ 2008 L 53, p. 52 (‘the EU-Switzerland Schengen association agreement’). The Handbook for the processing of visa applications and the modification of issued visas (consolidated version of 9 July 2014 amending Commission Decision C(2010) 1620 final of 19 March 2010; ‘the Visa Handbook’), p. 10, explains that for the purposes of the Visa Code and the Visa Handbook the term ‘Member States’ refers to those EU Member States applying the Schengen acquis in full together with the associated States; and the term ‘territory of the Member States’ refers to the territory of those Member States.

7 Council Regulation of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1). Sri Lanka is listed in Annex I to that regulation as a third country whose nationals must be in possession of a visa.

9 The Mixed Committee is established by Article 3 of the EU-Switzerland Schengen association agreement and its remit is to address matters covered by Article 2 of that agreement and ensure that ‘any concern entertained by Switzerland is duly considered’ (Article 4(1)).

10 Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 13). See also the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19).

11 Recital 3 and Article 1(1) of the Visa Code. The Schengen acquis is defined in Council Decision 1999/435/EC of 20 May 1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the acquis (OJ 1999 L 176, p. 1).

13 Schengen visa statistics for consulates – 2017. Those statistics are available at https://www.schengenvisainfo.com/.

14 See Article 56 of the Visa Code and the correlation table comparing the Visa Code and the prior measures.

15 See recital 18 of the Visa Code, and Opinion of Advocate General Bobek in El Hassani, C‑403/16, EU:C:2017:659, point 46. In that respect, the Visa Code reflects the priorities set out in the Commission 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 proposal for establishing a Visa Code’), p. 4: ‘By incorporating all legal instruments governing the conditions and procedures for issuing visas into one [Visa Code], enhancing transparency and clarifying existing rules, introducing measures intended to increase the harmonisation of procedures, strengthen legal certainty and procedural guarantees, a full common policy with equal treatment of visa applicants is ensured’.

17 Judgment of 26 October 2010, United Kingdom v Council, C‑482/08, EU:C:2010:631, paragraph 48.

19 See, to that effect, recitals 18 and 22 of the Visa Code, and Opinion of Advocate General Mengozzi in Koushkaki, C‑84/12, EU:C:2013:232, point 42.

20 See point 1.7.3 of the Hague Programme, recital 3 of the Visa Code and the Commission proposal for establishing a Visa Code, p. 2.

22 Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 191.

23 Opinion of Advocate General Mengozzi in Koushkaki, C‑84/12, EU:C:2013:232, point 57.

24 The Commission has recently highlighted that representation agreements are in line with the principle of mutual trust on which the Schengen acquis is based. See the Explanatory memorandum annexed to the Commission proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 810/2009 establishing a [Visa Code], COM(2018) 252 final (‘the Commission proposal amending the Visa Code’), p. 7.

25 See, inter alia, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 36.

26 The French version of that provision is also clear (‘les demandeurs qui ont fait l’objet d’une décision de refus de visa peuvent former un recours contre cette décision’) as is the case for Dutch, the language of the procedure in the present case (‘Aanvragers aan wie een visum is geweigerd, kunnen in beroep gaan’). The Visa Handbook, which does not have binding legal effect, uses the same wording at p. 79: ‘applicants who have been refused a visa shall have the right to appeal’.

27 Judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 24.

28 Judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraphs 25 and 26.

30 Notification to the applicant is provided by Article 32(2) of the Visa Code (for refusal decisions) and Article 34(6) (for decisions to revoke or to annul a visa).

31 See, to that effect, judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 31.

32 Judgment of 13 September 2018, Ahmed, C‑369/17, EU:C:2018:713, paragraph 36 and the case-law cited.

34 The use of words in Article 8(1) indicating that the representing State is acting ‘on behalf of’ the represented State appears to be consistent in the language versions that I have examined. Thus, ‘Een lidstaat kan ermee instemmen een andere lidstaat die op grond van artikel 5 bevoegd is, te vertegenwoordigen voor het onderzoeken van aanvragen voor en de afgifte van visa namens die lidstaat’ (Dutch); ‘Un État membre peut accepter de représenter un autre État membre compétent au sens de l’article 5 en vue d’examiner les demandes et de délivrer les visas pour le compte de cet autre État membre’ (French); ‘Ein Mitgliedstaat kann sich bereit erklären, einen anderen nach Artikel 5 zuständigen Mitgliedstaat bei der im Namen dieses Mitgliedstaats erfolgenden Prüfung von Anträgen und der Erteilung von Visa zu vertreten’ (German); ‘Uno Stato membro può accettare di rappresentare un altro Stato membro che sia competente ai sensi dell’articolo 5 ai fini dell’esame delle domande e del rilascio dei visti per conto di tale Stato’ (Italian); ‘Um Estado-Membro pode aceitar representar outro Estado-Membro com competência nos termos do artigo 5.o para efeitos de análise de pedidos e de emissão de vistos em nome desse Estado-Membro’ (Portuguese); ‘Un Estado miembro podrá aceptar representar a otro Estado miembro que sea competente con arreglo al artículo 5 a efectos de examinar las solicitudes y expedir los visados en nombre de ese Estado miembro‘ (Spanish).

35 The Commission proposal amending the Visa Code proposes to delete the current Article 8(2) of the Visa Code to ‘ensure that the representing Member State is fully responsible for the processing of visa applications on behalf of the represented Member State, which will streamline the processing of visa applications under representation and is in line with the principle of mutual trust on which the Schengen acquis is based’ (p. 7). That proposal is not yet lex lata and in the present case the Court is asked to interpret the Visa Code as in force at the material time. I note, however, that the proposal still refers to the actions of the representing Member State (which is ‘fully responsible for the processing of visa applications’) as being ‘on behalf of the represented Member State’ (emphasis added).

36 Again, the wording of Annex VI appears to be consistent across the language versions that I have examined. Thus, ‘[namens (naam van de vertegenwoordigde lidstaat)] (Dutch); ‘[au nom de (nom de l’État membre représenté)]’ (French); ‘[im Namen vom (Namen des vertretenen Mitgliedstaats)]’ (German); ‘[a nome di (nome dello Stato membro rappresentato)]’ (Italian), [em nome de (nome do Estado- Membro representado)] (Portuguese), ‘[en nombre de (nombre del Estado miembro representado)] (Spanish).

38 See, to that effect, judgment of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 32.

39 See, by analogy, judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 80.

40 Judgment of 22 December 2010, DEB, C‑279/09, EU:C:2010:811, paragraph 29.

43 See the overview of Member States’ diplomatic missions and consular posts responsible for processing visa applications and representation arrangements in accordance with Article 8(1) of the Visa Code, document of 15 January 2018, available on the European Commission’s website.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Vethanayagam and Others (Refusal to issue a Schengen visa - Opinion) [2019] EUECJ C-680/17_O (28 March 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C68017_O.html Cite as: [2019] EUECJ C-680/17_O

Court of Justice of the European Communities (including Court of First Instance Decisions)