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

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 9 September 2020 (1)

Joined Cases C‑225/19 and C‑226/19

R.N.N.S. (C‑225/19),

K.A. (C‑226/19)

v

Minister van Buitenlandse Zaken

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

(Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EC) No 810/2009 – Article 32 – Community Code on Visas – Decision refusing a visa – Right of the applicant to lodge an appeal against that decision – Right to a judicial remedy – Article 47 of the Charter of Fundamental Rights of the European Union – Good administration)

I.      Introduction

1.        Both of the requests from the Rechtbank Den Haag, zittingsplaats Haarlem (District Court of The Hague, sitting in Haarlem, Netherlands), for a preliminary ruling under Article 267 TFEU concern the interpretation of Article 32 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (‘the Visa Code’), (2) read in the light of Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2.        The requests were made in two sets of proceedings between the applicants in the main proceedings and the Netherlands competent authorities concerning those authorities’ rejection of the visa applications submitted by the respective applicants. The purpose of the questions for a preliminary ruling referred to the Court is, in essence, to ascertain whether a Member State which takes the final decision to reject a visa application on the basis of Article 32(1) of the Visa Code after another Member State has objected to the issuing of a visa because of a threat to public policy, internal security or public health, or to the international relations of a Member State, is required to communicate, in its rejection decision or during the subsequent appeal procedure, the identity of the Member State that raised objections and the substantive reasons on which that Member State relied in order to do so. Another question that underlies the disputes in the main proceedings concerns the remedies available to challenge the objections to the issuing of a visa.

3.        These cases provide the Court with a new opportunity to rule on the right to an effective remedy, as provided for in Article 47 of the Charter, in the sphere of the common visa policy, characterised by partial legislative harmonisation, (3) where the procedural autonomy of the Member States still plays an appreciable role, in spite of the fact that the Visa Code, as an instrument governing the conditions on which a uniform visa may be issued, annulled or revoked, requires, in principle, a uniform application (4) by all the authorities of the Member States – whether they form part of the executive or the judiciary – in order to ensure the consistent implementation of that policy.

4.        The EU legislature left to the Member States the task of ensuring the application of the provisions of the Visa Code in accordance with their respective procedural rules, imposing, however, the obligation to comply with certain procedural guarantees recognised in the EU legal order, which constitute an expression of the rule of law, namely the obligation to state reasons and the right of appeal. It will be the Court’s task to shed light on the scope of those procedural guarantees and to explain the way in which they must be implemented in the context of the application of the national procedural rules when an appeal is lodged against the refusal of a visa, while taking into account the specific characteristics of the sphere of the common visa policy. In doing so, the Court will not only defend the rule of law but will also contribute to attaining the objectives of that policy.

II.    Legal framework

A.      The Charter

5.        Article 41 of the Charter is worded as follows:

‘1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

2. This right includes:

(a)      the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

(b)      the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

(c)      the obligation of the administration to give reasons for its decisions.

…’

6.        The first paragraph of Article 47 of the Charter provides:

‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’

7.        Article 51(1) of the Charter is worded as follows:

‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.’

8.        Article 52(1) of the Charter states:

‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’

B.      The Visa Code

9.        Recitals 28 and 29 of the Visa Code state:

‘(28)      Since the objective of this Regulation, namely the establishment of the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any six-month period, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(29)      This Regulation respects fundamental rights and observes the principles recognised in particular by the … Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union.’

10.      Article 1(1) of the Visa Code is worded as follows:

‘This Regulation establishes the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any six-month period.’

11.      Article 2 of the Visa Code is worded as follows:

‘For the purpose of this Regulation the following definitions shall apply:

…

(2)      “visa” means an authorisation issued by a Member State with a view to:

(a)      transit through or an intended stay in the territory of the Member States of a duration of no more than three months in any six-month period from the date of first entry in the territory of the Member States;

…

(3)      “uniform visa” means a visa valid for the entire territory of the Member States;

…’

12.      Article 22 of the Visa Code provides:

‘1. A Member State may require the central authorities of other Member States to consult its central authorities during the examination of applications lodged by nationals of specific third countries or specific categories of such nationals. Such consultation shall not apply to applications for airport transit visas.

2. The central authorities consulted shall reply definitively within seven calendar days after being consulted. The absence of a reply within this deadline shall mean that they have no grounds for objecting to the issuing of the visa.

3. Member States shall notify the Commission of the introduction or withdrawal of the requirement of prior consultation before it becomes applicable. This information shall also be given within local Schengen cooperation in the jurisdiction concerned.

4. The Commission shall inform Member States of such notifications.

5. From the date of the replacement of the Schengen Consultation Network, as referred to in Article 46 of the VIS Regulation, prior consultation shall be carried out in accordance with Article 16(2) of that Regulation.’

13.      Article 32(1) to (3) of the Visa Code provides:

‘1. Without prejudice to Article 25(1), a visa shall be refused:

(a)      if the applicant:

…

(vi)      is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds, …

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.’

14.      Annex VI to the Visa Code contains a standard form to be used in the context of decisions on visa applications. As regards the reasons on which the decision is based, it provides a list of reasons for refusal, to be ticked. Reason for refusal No 5 is worded as follows:

‘an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry by ____ (indication of Member State).’

15.      Reason for refusal No 6 is worded as follows:

‘one or more Member State(s) consider you to be a threat to public policy, internal security, public health as defined in Article 2(19) of Regulation (EC) No 562/2006 (Schengen Borders Code) or the international relations of one or more of the Member States.’

C.      The VIS Regulation

16.      Article 38 of Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (‘the VIS Regulation’) (5) provides:

‘1. Without prejudice to the obligation to provide other information in accordance with Article 12(a) of Directive 95/46/EC, any person shall have the right to obtain communication of the data relating to him recorded in the VIS and of the Member State which transmitted them to the VIS. Such access to data may be granted only by a Member State. Each Member State shall record any requests for such access.

2. Any person may request that data relating to him which are inaccurate be corrected and that data recorded unlawfully be deleted. The correction and deletion shall be carried out without delay by the Member State responsible, in accordance with its laws, regulations and procedures.

3. If the request as provided for in paragraph 2 is made to a Member State other than the Member State responsible, the authorities of the Member State with which the request was lodged shall contact the authorities of the Member State responsible within a period of 14 days. The Member State responsible shall check the accuracy of the data and the lawfulness of their processing in the VIS within a period of one month.

4. If it emerges that data recorded in the VIS are inaccurate or have been recorded unlawfully, the Member State responsible shall correct or delete the data in accordance with Article 24(3). The Member State responsible shall confirm in writing to the person concerned without delay that it has taken action to correct or delete data relating to him.

5. If the Member State responsible does not agree that data recorded in the VIS are inaccurate or have been recorded unlawfully, it shall explain in writing to the person concerned without delay why it is not prepared to correct or delete data relating to him.

6. The Member State responsible shall also provide the person concerned with information explaining the steps which he can take if he does not accept the explanation provided. This shall include information on how to bring an action or a complaint before the competent authorities or courts of that Member State and on any assistance, including from the national supervisory authorities referred to in Article 41(1), that is available in accordance with the laws, regulations and procedures of that Member State.’

17.      Article 40(1) of the VIS Regulation provides:

‘In each Member State any person shall have the right to bring an action or a complaint before the competent authorities or courts of that Member State which refused the right of access to or the right of correction or deletion of data relating to him, provided for in Article 38(1) and (2).’

III. The facts giving rise to the disputes, the main proceedings and the questions referred for a preliminary ruling

18.      The referring court sets out its reasons for requesting the Court to give a preliminary ruling in identical terms in both cases, except as regards the individual situation of the applicants.

19.      The applicant in the main proceedings in Case C‑225/19, R.N.N.S., is an Egyptian national living in his country of origin. He married a Netherlands national on 28 August 2017.

20.      On 7 June 2017, he applied for a Schengen visa to the Minister van Buitenlandse Zaken (Minister for Foreign Affairs, Netherlands), in order to visit his future parents-in-law, who live in the Netherlands.

21.      By decision of 19 June 2017, the Minister for Foreign Affairs refused to issue a visa. The decision refusing the visa was taken on the ground that one or more Member States, in this instance Hungary, consider R.N.N.S. to be a threat to public order, internal security or public health, as defined in Article 2(19) of the Schengen Borders Code, or to the international relations of one of the Member States.

22.      On 31 October 2017, the Minister for Foreign Affairs rejected as unfounded the objection lodged by R.N.N.S. against that decision.

23.      On 22 November 2017, R.N.N.S. lodged an appeal against the latter decision before the referring court, maintaining that he cannot be considered to be a threat to public policy, internal security or public health or to the international relations of one of the Member States. The applicant relies, in particular, on the absence of effective judicial protection, since he is not able to challenge the substance of the Minister for Foreign Affairs’ refusal decision. According to the Minister, Hungary’s ground for refusal cannot be reviewed as to its substance in the Netherlands and for that reason R.N.N.S. should bring proceedings before the Hungarian courts to that end.

24.      The applicant in the main proceedings in Case C‑226/19, K.A., is a Syrian national living in Saudi Arabia. She is a widow and has adult children; one child lives in Sweden and three children live in the Netherlands.

25.      On 2 January 2018, K.A. applied to the Minister for Foreign Affairs for a Schengen visa in order to visit her son living in the Netherlands.

26.      By decision of 15 January 2018, the Minister refused to issue the visa. The refusal decision was based on the fact that one or more Member States, in this instance the Federal Republic of Germany, consider K.A. to be a threat to public policy, internal security or public health, as defined in Article 2(19) of the Schengen Borders Code, or to the international relations of one of the Member States.

27.      On 14 May 2018, the Minister for Foreign Affairs rejected as unfounded the objection lodged by K.A. against that decision. In the context of that objection procedure, the applicant requested the Minister to seek further information from the German authorities concerning the reasons why they considered that the applicant constituted such a threat. According to the Minister for Foreign Affairs, however, the Visa Code contains no obligation for the Kingdom of the Netherlands to request such information from the German authorities.

28.      On 28 May 2018, K.A. lodged an appeal against the refusal decision before the referring court, maintaining that she cannot be considered a threat to public order, internal security or public health or to the international relations of one of the Member States. K.A. invokes, in particular, the absence of an effective judicial remedy, since she is unable to challenge the ground for refusal, which is formulated too generally. According to K.A., who refers, in particular, to Article 41 of the Charter, the Minister for Foreign Affairs ought to have requested the substantive grounds underlying the decision of the German authorities.

29.      The referring court points out that, in both sets of proceedings, the applicants are not the subject of an alert issued in the Visa Information System (‘the VIS’) for the purpose of refusing a visa or of an alert issued in the Schengen Information System (‘the SIS’) for the purpose of refusing entry to the Schengen Area.

30.      In both sets of main proceedings, the question arises whether and how the ground for refusal in Article 32(1)(a)(vi) of the Visa Code may be reviewed in the context of an appeal against the final decision refusing a visa and whether that type of review constitutes an effective remedy.

31.      It was in those circumstances that the Rechtbank Den Haag, zittingsplaats Haarlem (District Court of the Hague, sitting in Haarlem) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling in each of the cases pending before it:

‘(1)      In the case of an appeal as referred to in Article 32(3) of the Visa Code against a final decision refusing a visa on the ground referred to in Article 32(1)(a)(vi) of the Visa Code, can it be said that there is an effective remedy within the meaning of Article 47 of the EU Charter under the following circumstances:

–        where, in its reasons for the decision, the Member State merely stated: “you are regarded by one or more Member States as a threat to public policy, internal security, public health as defined in Article 2.19 or 2.21 of the Schengen Borders Code, or to the international relations of one or more Member States”;

–        where, in the decision or in the appeal, the Member State does not state which specific ground or grounds of those four grounds set out in Article 32(1)(a)(vi) of the Visa Code is being invoked;

–        where, in the appeal, the Member State does not provide any further substantive information or substantiation of the ground or grounds on which the objection of the other Member State (or Member States) is based?

(2)      In the circumstances outlined in Question 1, can there be said to be good administration within the meaning of Article 41 of the EU Charter, in particular because of the duty of the services concerned to give reasons for their decisions?

(3)      (a)      Should Questions 1 and 2 be answered differently if, in the final decision on the visa, the Member State refers to an actual and sufficiently clearly specified possibility of appeal in the other Member State against the specifically named authority responsible in that other Member State (or Member States) that has (or have) raised the objection referred to in Article 32(1)(a)(vi) of the Visa Code, in which that ground for refusal can be examined?

(3)      (b)      Does an affirmative answer to Question 1 in connection with Question 3(a) require that the decision in the appeal in and against the Member State that made the final decision be suspended until the applicant has had the opportunity to make use of the option of appealing in the other Member State (or Member States) and, if the applicant does make use of that option, until the (final) decision on that appeal has been obtained?

(4)      For the purpose of answering the questions, does it matter whether (the authority in) the Member State (or Member States) that has (or have) objected to the issuing of the visa can be given the opportunity, in the appeal against the final decision on the visa, to act as second defendant and on that basis to be given the opportunity to introduce a substantiation of the ground or grounds on which its objection is based?’

IV.    Procedure before the Court

32.      The orders for reference, dated 5 March 2019, were received at the Court Registry on 14 March 2019.

33.      The parties to the main proceedings, the Netherlands, Czech, German, Italian, Lithuanian and Polish Governments and the European Commission lodged written observations within the prescribed period, in accordance with Article 23 of the Statute of the Court of Justice of the European Union.

34.      By way of a measure of organisation of procedure of 30 April 2020, the Court put a number of questions to be answered in writing to all the interested parties. The written observations on those questions were lodged within the prescribed period.

V.      Legal analysis

A.      Preliminary observations

1.      The need for a uniform application of the Visa Code in spite of the absence of full harmonisation

35.      Before I begin to analyse the questions referred to the Court for a preliminary ruling, it is appropriate to recall the importance of the Visa Code and the legislative objective that it pursues. In the words of Article 1(1) thereof, the Visa Code establishes the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any six-month period. It was adopted with the aim of putting an end to the disparate provisions that existed previously, particularly with regard to the essential entry conditions and procedural guarantees, such as the obligation to state reasons and the right of appeal against refusal decisions. The EU legislature wished to harmonise those conditions in order to avoid ‘visa shopping’ and to ensure equal treatment for visa applicants, as is apparent from recital 18 of the Visa Code.

36.      It is clear, however, that, in the absence of full harmonisation in visa matters, certain aspects connected to a greater or lesser degree with the issuing of visas fall within the legislative competence of the Member States. That is the consequence, in the first place, of the fact that the European Union has not exercised the power which it shares with the Member States in the area of freedom, security and justice, under Article 4(2)(j) TFEU. Next, the competence of the Member States may emanate from an express reference to the laws of the Member States. In addition, the Member States may be accorded a margin of appreciation or a discretion as regards the performance of specific tasks. The respective competences of the Union and the Member States in legislative or executive matters must therefore be inferred on a case-by-case basis from the relevant provisions, by means of interpretation.

2.      The politically sensitive nature of certain aspects

37.      Like any legislative act born of a political compromise, the Visa Code reveals certain aspects which are considered sensitive and which the Member States preferred to regulate themselves. The origin of the Visa Code provides indications of the sensitive nature of certain aspects, including the requirement to state reasons for a decision rejecting a visa application and also the applicant’s right to lodge an appeal, which are precisely the subject matter of the cases in the main proceedings. (6)

38.      However, as I have already explained in the introduction to this Opinion, that does not mean that the Member States should not be bound by the obligation to comply with the procedural guarantees prescribed in Article 47 of the Charter when they implement EU law, within the meaning of Article 51(1) of the Charter. From another aspect, it is necessary to take account of the specific characteristics of the common visa policy and also of the security considerations invoked by the Member States that may justify proportionate restrictions being placed on those procedural guarantees.

B.      Question 1

1.      General aspects

(a)    The objections which the applicants in the main proceedings raise against the Member States

39.      By its first question, the referring court asks, in essence, whether a decision refusing a visa taken by the competent national authority because of the existence of a ground for refusal based on Article 32(1)(a)(vi) of the Visa Code respects the right to an effective remedy, as guaranteed by Article 47 of the Charter, if that decision is communicated to the visa applicant by means of the standard form set out in Annex VI, in accordance with Article 32(2) of the Visa Code. As the referring court states, that standard form does not make it possible either to distinguish between the various categories of threats referred to in Article 32(1)(a)(vi) of the Visa Code, applicable to the different cases, or to obtain precise information as to the content or the basis of the ground or grounds forming the basis of an objection by another Member State, since the Member State responsible for taking the final decision may, in principle, merely tick box 6 on the standard form.

40.      The request submitted to the Court, seeking to ascertain the compatibility of the relevant provisions of the Visa Code and the related administrative practice with Article 47 of the Charter, may be explained by the fact that the applicants in the main proceedings take issue with the national authorities, first, for not having stated sufficiently the reasons for their refusal decisions and, second, for frustrating the exercise of their right to lodge an appeal against those decisions. The alleged insufficiency of the reasons stated for the refusal decisions seems to impair the rights of the applicants in the main proceedings in several respects, a situation which cannot be precluded outright, especially because Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter, requires Member States to provide for an appeal procedure against decisions refusing visas, which must, at a certain stage of the proceedings, guarantee a judicial appeal. (7)

41.      In order to be able to properly exercise the remedies established by the Member States, an applicant must be informed of the reasons on which the decision refusing a visa is based. Only on that condition is he or she able to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction. That court, for its part, must be aware of the reasons in order to be in a position to review the legality of the national decision in question. (8) The obligation to state reasons therefore has a twofold objective that must be taken into account in order to ensure an effective remedy. In the interests of clarity, those aspects – on the one hand, the way in which a refusal of a visa is communicated to the applicant and, on the other hand, the review of legality to which that decision is subject – will be examined separately.

(b)    The scope of the right to an effective remedy and the restrictions laid down in the Charter

42.      The status as third-country nationals of the applicants in the main proceedings does not preclude the application of Article 47 of the Charter in the present cases. As the Court confirmed in the judgment in El Hassani, (9) the right to a review by a court at a certain stage of the proceedings of the legality of a decision refusing a visa is guaranteed to every applicant. In so far as the exercise of that review of legality requires a statement of the reasons for the decision refusing a visa in order to be effective, as was explained above, (10) the applicant must be recognised as having the right to be informed of the reasons on which the decision refusing a visa is based. With that in mind, it should be stated that nationals of third countries also come within the scope of Article 47 of the Charter and may therefore rely on the right to an effective remedy before the national authorities. (11)

43.      It should be considered, however, that, as the Court recalled in the judgment in ZZ, (12) Article 52(1) of the Charter allows limitations to be placed on the exercise of the rights enshrined by the Charter, including the right to an effective remedy, in certain circumstances. That provision requires that any limitation must respect the essence of the fundamental right in question and requires, in addition, that, subject to the principle of proportionality, the limitation must be necessary and must genuinely meet objectives of general interest recognised by the European Union. In the present case, it seems to me that, when adopting the Visa Code, the EU legislature weighed up, on the one hand, the interest in guaranteeing the rule of law and, on the other, the interest in safeguarding public security, which is reflected perfectly in the legislation. The guarantees of the rule of law, more precisely the obligation to state the reasons on which administrative acts are based, and the possibilities of appeals against those acts may, as will be explained below, be restricted in the interest of public security. (13)

44.      In order to provide a helpful answer to the questions referred for a preliminary ruling, it is necessary to determine, by interpreting the relevant provisions, what value the EU legislature placed on those interests and to what extent it sought to protect them. That interpretation will reveal the present stage of development of EU law in the sphere of the common visa policy. As I have pointed out above, the analysis of the right to an effective remedy, as implemented by secondary law, will focus on two aspects, namely the manner in which a visa refusal is communicated to the applicant and the review of legality to which that administrative decision is subject.

2.      The manner in which a visa refusal is communicated to the applicant

45.      I note at the outset that the Court has ruled in very general terms on the way in which the person concerned must be informed of the reasons on which an administrative decision taken in relation to him or her is based, requiring only that he or she be able, ‘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’. (14) It follows that the reasons may be communicated, in principle, in three distinct ways.

46.      Turning more particularly to the analysis of certain provisions of the Visa Code, Article 32(1) of that code provides that the visa is to be refused if the applicant is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds. Under Article 32(2) of that code, the decision on refusal and the reasons on which it is based are to be notified to the applicant by means of the standard form set out in Annex VI. That decision on refusal reflects the conclusions of the investigation carried out by the Member State responsible for adopting the final decision, and also the outcome of the consultation procedure referred to in Article 22 of the Visa Code. However, it should be observed that the standard form in question allows the Member States, in principle, merely to tick box 6, which sets out the reasons for refusal, without providing further information to the person concerned. The standard form therefore does not distinguish between the specific reasons for refusal referred to in Article 32(1) of the Visa Code.

47.      It follows that the applicant is informed in a very general and succinct manner of the reasons for refusal of the visa. Admittedly, as the Commission correctly states in its observations, that does not prevent the Member States from mentioning that information on the form, for example by completing the field ‘Remarks’. In fact, that space offers, in principle, the possibility of providing useful information to the applicant in order to help him or her the better to understand the grounds for refusal, to identify any errors and to request the competent national authority to make any appropriate corrections. It should be emphasised in that regard that, even if no obligation to include more detailed information can be inferred from the abovementioned provisions, that possibility is nonetheless provided for in the standard form, which itself forms an integral part of the Visa Code. Consequently, it is necessary to proceed from the premiss that the standard form indicating the existence of one or more grounds for refusal and including any remarks that the Member States may wish to make constitutes a ‘minimum of information’ which the EU legislature considered sufficient to meet the obligation to state reasons for any decision refusing a visa as an expression of the rule of law.

48.      In addition, it is apparent from the case file that it was in response to the applicants’ request to the Netherlands authorities that they learned which Member States had raised objections to the issuing of visas in the context of the consultation procedure referred to in Article 22 of the Visa Code. It should therefore be noted that the national administrative procedure may provide for the possibility of providing supplementary information, which will be of use to the applicant, thus supplementing the reasoning on which a decision of refusal is based. I share the German Government’s view that the identity of the Member States that raised objections should be disclosed at the applicant’s express request, in order to guarantee the possibility of challenging the assessment of those Member States as regards the threat posed by the applicant.

49.      I infer from the foregoing observations that, in the absence of express regulation within the European Union concerning the degree of precision of the reasoning that must be set out in the decision on refusal, the EU legislature wished to leave to the Member States the task of determining which information they wish to communicate to the applicant. Such an interpretation seems to me to be all the more logical because there may be objective reasons that justify providing less detailed reasons for that decision, as I shall explain in this Opinion.

(a)    Reasons linked to the different contexts in the EU legal order

(1)    Limitation of the scope of the right protected by Article 47 of the Charter

50.      First, objective reasons linked to the specific characteristics of a defined normative context may require a lesser degree of detail in the reasoning for an administrative act. That limitation of the individual’s right to obtain a reasoned administrative decision often responds to practical considerations which the legislature takes into account, for example the workload of the administration. (15) From a theoretical viewpoint, the right guaranteed by Article 47 of the Charter, which allows a review of the legality of the administrative activity, is given a more limited scope in certain areas of EU law than in others, although that does not amount to disregarding the essence of that right.

51.      In that context, it is appropriate to recall the Court’s case-law according to which the obligation to state reasons may be subject to a lesser degree of precision according to the area of administrative law concerned. Also relevant in my view is the Court’s case-law according to which the interest which the addressee may have in obtaining explanations determines whether the reasons given for an administrative decision may be considered sufficient. (16) It is clear that that interest is largely determined by the legislature itself since it defines the legal status of the addressee in the area concerned.

52.      The Court seems to recognise that prerogative of the legislature, when it states in its case-law that it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. (17) It is therefore necessary to analyse the legal status that EU law confers on visa applicants.

(2)    EU law confers no right of entry to the territory of the Member States or any subjective right to obtain a visa

53.      In that regard, I would observe at the outset that EU law does not grant nationals of third countries any right to enter the territory of the Member States or any subjective right to obtain a visa. I fully support the position of Advocates General Mengozzi, Bobek and Szpunar, who have unanimously rejected the existence of such rights, relying on a detailed analysis of the Visa Code and taking into account, inter alia, its legislative objective, the normative content of its provisions and the specific characteristics of the common visa policy. In order to avoid repetition, I shall permit myself to refer to their respective Opinions in the cases in question, while nonetheless reserving the right to present certain of their observations which seem to me to be the most relevant for the purposes of the present cases.

54.      As Advocate General Mengozzi rightly observed in Koushkaki, (18) the visa is designed not as a right, but as an obligation imposed on a person wishing to stay for a short duration in the territory of a Member State, that is to say, as a prerequisite to entry to the territory of the European Union. The visa is a tool to control entries, and thus migration flows. (19) Advocate General Mengozzi also observed that the action undertaken within the European Union in the visa field pursues an objective of a defensive nature, namely combating illegal immigration and avoiding visa shopping, that is to say, preventing a Member State from adopting a visa policy which is manifestly more favourable to applicants, such a policy being at risk of destabilising the Schengen Area on account of the lack of checks at its internal borders. (20) It is precisely for that reason that the Visa Code establishes an obligation to refuse a visa when the conditions required of the visa applicant are not met. (21) It is therefore clear that, in so far as the objective of the partial harmonisation provided for by the Visa Code is the uniform application of the rules, in particular the grounds for refusal, that does not mean that the Member States must issue a visa in all circumstances. (22)

55.      Advocate General Bobek reached the same conclusion in El Hassani, (23) stating that the mere existence of the visa requirement already precluded, per se, the idea of a subjective right of entry into the Member States’ territory. (24) He referred to Article 2(2)(a) of the Visa Code, from which it is apparent that a visa is ‘an authorisation issued by a Member State with a view to transit through or an intended stay in the territory of the Member States of a duration of no more than three months’. It should be noted that the obligation to obtain an authorisation – that is to say, prior consent for the purposes of administrative law – as a condition of access by third-country nationals to the territory of the Member States logically assumes the absence of any automatic functioning in the visa issuing procedure. Advocates General Mengozzi and Bobek were therefore correct to oppose an interpretation of the Visa Code as meaning that there is a subjective right to obtain a visa. I would emphasise, moreover, that it is clear from the wording of Article 30 of the Visa Code that the mere possession of a uniform visa or a visa with limited territorial validity is not sufficient to confer an automatic right of entry.

56.      Nor, to my mind, can any subjective right be inferred from the provisions of the Charter, since its provisions confer rights in relation to freedom of movement on third-country nationals only in two specific circumstances. First, Article 15(3) of the Charter provides that nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union; and, second, Article 45(2) of the Charter provides that ‘freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State’. As Advocate General Szpunar observed in his Opinion in Fahimian, (25) the Charter therefore presupposes legal entry into the Union and does not create such a right. (26)

57.      In the light of the foregoing considerations, having regard to the case-law of the Court, according to which the interest which the addressee of an administrative decision may have determines whether the reasons stated in that decision must be considered sufficient, and since the applicant cannot rely on any subjective right vis-à-vis the administration, it does not seem unreasonable to me to accept a lesser degree of precision in the reasoning on which a decision refusing a visa is based.

(3)    The issuing of a visa as the exercise of a sovereign power

58.      The absence of a subjective right, that is to say, of a ‘legitimate interest protected by [EU] law’, (27) ‘obliging [the European Union] to undertake a specific action for the holder of that subjective right’, (28) shows that the visa applicant is in what might be described as a position of weakness vis-à-vis the State. However, it seems to me that that is indeed what the legislature intended when it adopted the Visa Code, especially if it is considered that the issuing of a visa to a national of a third country constitutes the exercise of a sovereign power, as Advocate General Mengozzi observed in Koushkaki. More precisely, he stated that the Member States’ right to control the entry of non-nationals to their territory is an aspect of State sovereignty as a principle of international law. (29)

59.      Advocate General Szpunar developed that argument in his Opinion in Fahimian, explaining that under public international law as it currently stands, first entry for the purposes of legal migration is an area of largely unfettered State discretion. (30) According to Advocate General Szpunar’s observations, such sovereignty is not called into question by Member States’ obligations under international human rights treaties, (31) nor, moreover, were such obligations invoked by the applicants in the main proceedings in order to obtain access to the territory of the Kingdom of the Netherlands. Likewise, the fact that the Member States have voluntarily assumed obligations with regard to the international protection of refugees, important though they may be, does not in itself suffice to call into question the Member States’ unfettered power to decide whether nationals of third countries may have access to their territory. That being said, it should be stated, in the interest of clarity, that the EU asylum regime, including the principle of ‘non refoulement’, is not applicable to the present case, since the applicants in the main proceedings do not seek refugee status under the rules and procedures of international law.

60.      In the interest of completeness, it should be observed that the applicants in the main proceedings do not seem to be able to rely on the provisions of EU immigration law, which authorise legal residence for certain family members of a third-country national on the territory of the Member States. It follows from the Court’s case-law that Article 4(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (32) ‘imposes precise positive obligations, with corresponding clearly defined individual rights, on Member States, since it requires them, in the cases determined by the directive, to authorise family reunification of certain members of the sponsor’s family, without being left a margin of appreciation’. (33) In the absence of any specific indication to that effect in the orders for reference, it must be considered that the applicants in the main proceedings have submitted no request for family reunification. Nor is it apparent that they satisfy the criteria for family members specified in that directive. It is therefore necessary to proceed from the principle that that norm is not applicable in these cases.

(4)    The visa regime as an instrument of foreign and security policy

61.      Another argument which to my mind confirms the somewhat weak legal status of the applicant vis-à-vis the State in the procedure for the issuing of a visa is linked to the nature of the visa regime as an instrument of foreign and security policy; (34) that argument was also put forward by Advocate General Mengozzi in Koushkaki (35) and developed by Advocate General Bobek in El Hassani. (36) The European Union’s common foreign and security policy is characterised by the decisive influence of the Member States in the decision-taking procedure within the Council of the European Union, which gives rise to common actions and positions, while the States retain a wide discretionary power in their votes, which clearly shows the way in which they exercise their sovereignty. (37) The unanimity required when decisions are taken under Article 24(2) TEU and Article 31 TEU, and the secondary role assigned to the Parliament in Article 36 TEU, also clearly show the desire to safeguard their sovereignty, since both of those factors have the effect of preventing the adoption of a foreign and security policy determined without their agreement. (38) It should be noted that the European Union Treaties recognise expressly that the Member States are responsible for formulating and conducting their foreign policy and for their national representation in third countries and international organisations. (39) All of those factors influence the Union’s visa policy, although the decisions relating to that policy were subject to a qualified majority in the context of the revision of the Treaties. In practice, the Member States play a decisive role. (40)

62.      In that respect, it will be noted that a number of agreements concluded by the EU and its Member States with third countries and other legal acts provide for the liberalisation of the visa regime that will facilitate travel, economic activity and contacts between persons. Those agreements and legal acts form part of a strategy that reflects the interests of the EU and its Member States in common foreign and security policy matters. (41) That strategy may vary according to international relations but also according to the different groups of third countries. Privileges, such as an exemption from the obligation to have a visa, may be granted to the nationals of certain third countries on the basis of the principle of reciprocity and be subject to specific conditions subject to review by the EU and its Member States. (42) They may thus also be revoked when the conditions on which they were granted are no longer satisfied. Likewise, they must be capable of being revoked when the reciprocity applicable to the grant of the privileges is no longer guaranteed, as Advocate General Mengozzi rightly observed in Koushkaki. (43) When they decide whether it is appropriate to enter into such agreements, the EU and its Member States exercise their sovereign powers and ensure that their decisions meet the requirements which they have identified; they thus assume their responsibilities vis-à-vis the citizens of the Union.

63.      It is in the light of the foregoing considerations that the Visa Code must in my view be interpreted. It must not be forgotten that, to the extent that the Visa Code confers a certain legal status on nationals of third countries, that legal status is determined by the EU and its Member States in the exercise of their sovereign will. It must therefore be concluded that, at the current stage of development of EU law relating to visas, the individual is merely a ‘beneficiary’ with limited rights, as his legal status must be consistent with the objectives defined by the EU and its Member States in the context of the foreign and security policy.

(5)    The national authorities’ margin of appreciation when they determine the eligibility of an individual to obtain a visa

64.      Another aspect, linked to the exercise of authority and in my view relevant for the purposes of the present analysis, calls for a number of observations, namely the national authorities’ role in examining visa applications.

65.      I observe, first of all, that in the words of Article 32(1)(vi) of the Visa Code, a visa is refused if the applicant is ‘considered to be a threat’ as defined in Article 2(19) of the Schengen Borders Code, which assumes, first, that there is an evaluation of the risks by the competent authorities, as provided for in Article 21 of the Visa Code, and, second, that absolute certainty as to the existence of a genuine threat is not necessary. On the contrary, it seems that it is sufficient, in principle, to find certain indicia suggesting risks to the legitimate interests in question in order to apply that provision. (44) Such an interpretation might be explained by the preventive nature of the visa regime, conceived with the objective of protecting security throughout the Schengen area from external risks such as illegal migration and human trafficking. (45) It would therefore be possible, in principle, to maintain that the national authorities may rely on the indicia available to them in order to object to the issuing of a visa, without being required to be absolutely certain that the applicant does in fact constitute a threat. In the interest of consistency, it is therefore appropriate to place less stringent requirements on the statement of reasons for a decision refusing a visa.

66.      I also note that, in its judgment in Koushkaki, (46) the Court emphasised the margin of appreciation available to the national authorities when they determine whether an individual is eligible to obtain a visa. It follows from that judgment that the assessment of the individual position of a visa applicant, with a view to determining whether there is a ground for refusing his or her application, entails complex evaluations based, inter alia, on the personality of that applicant, his or her integration in the country where he or she resides, the political, social and economic situation of that country and the potential threat posed by the entry of that applicant to public policy, internal security, public health or the international relations of any of the Member States. (47) According to the Court, such complex evaluations involve predicting the foreseeable conduct of that applicant and must be based on, inter alia, an extensive knowledge of his country of residence and on the analysis of various documents, the authenticity and the veracity of whose content must be checked, and of statements by the applicant, the reliability of which must be assessed, as is provided by Article 21(7) of the Visa Code. (48)

67.      In its judgment in El Hassani, the Court reiterated the broad discretion which the national authorities have as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts. (49)

68.      It is important to observe that the Court relied on the same reasoning in the judgment in Fahimian, which concerned the interpretation of Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, (50) that is to say, a legal act different from the Visa Code, but also coming within the sphere of immigration policy. Thus, the Court emphasised the wide discretion which the national authorities enjoy 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 to, inter alia, public security, preclude the admission of a third-country national. (51) The Court held that it is for those national authorities, in order to determine whether an applicant for a visa represents a threat, if only potential, to public security, to perform an overall assessment of all the elements of that person’s situation. (52) I consider it relevant that the Court relied on that occasion on an application by analogy of its decision Koushkaki, (53) already mentioned above.

69.      To my mind, such a wide discretion conferred on the national authorities when they determine whether an individual is eligible to obtain a visa confirms the weak legal status that the Visa Code confers on the applicant.

(6)    The legal framework applicable to citizenship of the Union and the internal market cannot be transposed to the situation of a visa applicant

(i)    The applicants in the main proceedings have no privileged status

70.      It is apparent from the orders for reference that some members of the families of the applicants in the main proceedings live in the Netherlands. The question that arises is therefore whether the applicants in the main proceedings enjoy any sort of privileged status on the ground that those relatives live in the territory of a Member State of the Union. A certain link with the fundamental freedoms of the EU internal market might be envisaged, at least in theory.

71.      To my mind, that question must clearly be answered in the negative. The legal framework applicable to the EU internal market cannot be transposed to the situation of a visa applicant, which is another important reason why that applicant cannot be afforded protection analogous to that of a person exercising the right to freedom of movement and the right of residence. I am thinking in particular of the rules relating to the treatment of the family members of a citizen of the Union who are not nationals of a Member State.

72.      As the Court has established in its case-law, the EU legislature has considerably expanded the application of EU law on entry into and residence in the territory of the Member States to third-country nationals who are spouses of nationals of Member States. (54) More specifically, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights 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 (55) confers on any third-country national who is a family member of a citizen of the Union within the meaning of Article 2(2) of that directive who accompanies or joins that citizen of the Union in a Member State other than the Member State of which he or she is a national rights of entry into and residence in the host Member State.

73.      In that regard, it should be borne in mind, however, that the rules applicable to that category of persons are intended, in reality, to guarantee the freedom of movement of the citizen of the Union. The EU legislature recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaties. (56) If Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms which they are guaranteed by the Treaty would be seriously obstructed. (57) Article 21(1) TFEU and the provisions of Directive 2004/38 do not confer any autonomous right on third-country nationals. Any rights conferred on such nationals by provisions of EU law on Union citizenship are rights derived from the exercise by a citizen of the Union of his or her freedom of movement. (58)

74.      Consequently, apart from the fact that it is unlikely that those provisions would be applicable to the cases in question, since the applicants in the main proceedings do not seem to be family members within the meaning of Article 2(2) of Directive 2004/38, it seems obvious to me that the EU legislature’s intention was not to extend the circle of beneficiaries to other persons not expressly referred to in that directive. As explained in the preceding paragraph, the decision to extend the rights of entry and residence to certain family members of the Union citizen follows a certain logic strictly linked to the law of the internal market and to fundamental rights. The Member States represented in the Council as co-legislative bodies voluntarily agreed, on the basis of a sovereign decision, to confer rights on a specific circle of beneficiaries in order to develop the concept of Union citizenship and to consolidate the internal market, which therefore precludes any application by analogy of Article 21(1) TFEU and the provisions of Directive 2004/38 to other categories of third-country nationals.

(ii) The protection of public security in the law relating to the internal market

75.      The same applies to the legal concepts linked with citizenship of the Union or coming within the sphere of the internal market, such as the concept of grounds of ‘public security’ as an exception to the general rule of freedom of movement. As I said earlier in this Opinion, (59) the guarantees of the rule of law, in particular the obligation to state the reasons on which administrative acts are based, may be restricted in the interest of public security. Although that general assertion is, in principle, correct, it is however necessary to make a few important points. The fact that the Visa Code and the provisions implementing the freedoms of the internal market refer to ‘public security’ does not mean that they are referring to the same legal concept and that that concept must be interpreted in the same way. In accordance with what has already been said, (60) the context of a provision in the legal order of the Union has a decisive influence on its interpretation.

76.      That is why Advocate General Szpunar correctly refused to transpose the Court’s case-law relating to the exceptions to the general rule of freedom of movement to the visa regime, which is at issue in the main proceedings. As he observed in Fahimian, it is understandable that those exceptions are interpreted in a narrow manner, (61)a fortiori because it is necessary to ensure the functioning of the internal market. Advocate General Szpunar put forward other relevant arguments in order to preclude the transposition of the legal concepts relating to the internal market to the visa regime, for example the difference in the normative structure. (62) Not to be regarded as a threat to public security is not an exception to a widely construed right of entry, but merely a negative condition governing a right of entry. As Advocate General Szpunar observed, the context is simply other than that of the internal market, and context matters. The specific context of EU immigration law implies that a third-country national does not benefit from the same rights as a national of a Member State, that is to say, an EU citizen. In addition, after pointing out that Directive 2004/114 is based on Article 79 TFEU, which is in Part 3, Title V of the FEU Treaty, Advocate General Szpunar emphasised that the meaning of law and order and public security in the law relating to freedom of movement is not the same as in immigration law. (63) In that context, he referred to Article 72 TFEU, which reserves the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security, and to which I shall return later in my analysis.

77.      It follows from the foregoing considerations that the legal status of a visa applicant cannot be assimilated to that of a citizen of the Union or a family member of such a citizen who is a third-country national. Any application by analogy of the legal concepts relating to citizenship of the Union and to the internal market to the visa regime is therefore precluded.

(iii) The principles developed in ZZ are not fully transposable to the present case

78.      I hesitate somewhat to agree with the Commission’s suggestion that the principles developed by the Court in ZZ (64) should be applied by analogy to the present case. As the Commission itself acknowledges in its written observations, the factual context is different from that of the cases being considered here, being characterised by a lesser degree of interference by the authorities. In ZZ, a citizen of the Union had been denied access to the Member State in which his wife and children lived and in which he himself had lived for several years, on the ground that his presence in the host Member State was prejudicial to public security. On the other hand, in the cases in the main proceedings, the applicants are third-country nationals with no connection with any Member State at all, who were refused a visa. Consequently, the cases belong to very different legal contexts, since, in ZZ, the Court was called upon to interpret the provisions of Directive 2004/38 and not, as in the cases in the main proceedings, the provisions of the Visa Code.

79.      Having regard to the significant differences in the facts and in the law, and taking the foregoing considerations into account, I consider it appropriate to exercise caution with respect to the unreserved application of the principles developed by the Court in ZZ, even though the present cases address a similar problem. That similarity must not be allowed to obscure the fact that the EU legislature struck a balance between, on the one hand, the obligation to state the reasons for an administrative decision and, on the other hand, the safeguarding of public security, taking into account a context very different from that of the internal market, in which the protection of public security plays a key role, as I shall explain in the following points.

(b)    Reasons connected with the protection of public security

80.      As already stated above, (65) Article 52(1) of the Charter permits limitations to the exercise of the rights enshrined in the Charter, including the right to an effective remedy, on certain conditions. From a theoretical point of view, restrictions on the exercise of rights may be justified by objectives of general interest recognised by the European Union. I note, in that regard, that all the Member States that have lodged observations in the present cases referred to the protection of public order and of national security as a reason for not disclosing information that is considered confidential. The protection of public security, especially with respect to the management of sensitive data, constitutes such an objective of general interest, as a number of provisions guaranteeing the confidentiality of information on grounds of security confirm.

81.      Under Article 346(1) TFEU, a Member State which has issued an objection is not required to supply information concerning the reasons why the applicant is classified as a threat to internal security within the meaning of Article 32(1)(a)(vi) of the Visa Code, because the communication of information relating to security is a particularly sensitive area.

82.      Article 72 TFEU makes clear, moreover, that the common policy on immigration and external border control is not to affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. (66) That competence also includes the introduction and application of provisions relating to the keeping under official control of confidential documents and the disclosure of such documents to third parties. That principle of Member State responsibility was also reiterated by the European Union in the context of the provision set out in Article 8(3) of the Visa Code, concerning representation arrangements, which provides that the applicable rules on data protection and security must be observed.

83.      The Court of Justice has recognised in its case-law that ‘overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned’. (67) Consequently, in exceptional cases and in particular on grounds of State security, it is possible to withhold certain information from those concerned. That applies to an administrative procedure such as the procedure for issuing visas, but also in judicial proceedings following the lodging of an appeal, as I shall explain below.

(c)    Intermediate conclusion

84.      In the light of the foregoing considerations, I reach an intermediate conclusion, which may be summarised as follows.

85.      The standard form set out in Annex VI to the Visa Code allows Member States to provide an applicant with a sufficiently detailed statement of reasons, which takes the applicant’s legal status into account.

86.      Although, at the current stage of development of EU law, Member States are not required to supply a detailed statement of reasons, there is nothing to prevent them from including ‘remarks’ in the standard form in order to facilitate a review of legality.

87.      The EU legislature may also revise the way in which the refusal to issue a visa is communicated to the applicant, after having struck a new balance between the interests involved. In fact, that is what the legislature has just done with the adoption of Regulation (EU) 2019/1155 of the European Parliament and of the Council of 20 June 2019 amending the Visa Code. (68) That legislative revision makes significant amendments, since the new standard form now separates the category ‘threat to public policy or internal security’ from the category ‘threat to public health’. The three reasons for refusal are now distributed over three separate boxes. Mention should also be made of recital 15 of the new regulation, which states that ‘the notification of the refusal should include detailed information on the reasons for the refusal and on the appeal procedure. During the appeal procedure, the applicants should be given access to all relevant information for their case, in accordance with national law’. The legislature’s intention to adjust the applicant’s legal status gradually in order to better meet the requirements of transparency imposed by the right to an effective remedy can thus be seen.

3.      The review of legality to which the decision refusing a visa is subject

88.      The above findings relating to the legal status of the visa applicant and the way in which the reasons for refusal are communicated to the applicant have significant consequences for the analysis of the scope of judicial review in the context of the appeal provided for in Article 32(3) of the Visa Code, interpreted in the light of Article 47 of the Charter, as will be shown in this Opinion.

(a)    The procedures for the review of legality are a matter for national law

89.      The EU legislature granted the applicant a right of appeal, in accordance with the internal legal order of the Member States, which has the consequence that the procedures for the review of legality may vary from one Member State to another. Administrative procedures, judicial procedures or even mixed procedures are, in principle, possible. (69) In that regard, the Court has given indications that are useful for the interpretation of the abovementioned provisions, stating in its judgment in El Hassani that, although ‘the procedural rules [applicable to an appeal] against decisions refusing visas are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness[, that procedure] must, at a certain stage of the [procedure], guarantee a judicial appeal’. (70)

90.      Furthermore, it should be reiterated in the present context too that, in so far as the internal legal order provides for ‘mixed procedures’, for example the possibility of lodging a complaint with the authority that issued the decision refusing a visa (or with the higher administrative authority responsible for legal oversight), there is nothing to prevent Member States from supplying, so far as possible, more detailed information. Having said that, I note that, contrary to what the wording of Question 1 suggests, it would appear that the applicants in the main proceedings lawfully obtained more detailed information from the Netherlands authorities, in particular about the Member States that objected to the issuing of a visa. Consequently, as indicated earlier in the analysis, (71) the procedure in place in the Netherlands seems to guarantee a minimum of transparency.

91.      The importance of such a review of legality must not be underestimated. As Advocate General Mengozzi observed in Koushkaki, the objective of the visa regime consists, in essence, in putting in place a procedure in conditions that are ‘more transparent and intelligible for the applicant, in order to ensure he is treated with dignity and in a manner which respects his human rights’. (72) Advocate General Bobek, for his part, has observed that ‘there is a right to have one’s application properly and lawfully processed and that right can be the basis for judicial review of the decision on the application’. (73) However, an important question that must be analysed in this Opinion for the purposes of answering the first question concerns the rigour required of a judicial review of a decision refusing a visa.

(b)    A less thorough judicial review as a consequence of the Council’s prerogatives in the field of the common foreign and security policy

92.      As an instrument of the EU foreign and security policy, (74) the visa regime is dependent on the prerogatives conferred on the Council in that sphere, which enables it to adapt the regime according to the situation of international relations and security requirements. Supported by the High Representative of the Union for Foreign Affairs and Security Policy, the Council is best placed to define that policy and to implement it by means of regulations, including with regard to access to the territory of the Union by third-country nationals. The Council is capable of assessing whether it is appropriate to maintain or alter the visa policy on the basis of the information obtained by the various services of the Union and its Member States. (75) It therefore exercises its powers in that sphere in the interest of the effective attainment of the objectives defined in the Treaties. (76)

93.      Under Article 13(2) TEU, ‘each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’. That provision translates the principle of institutional equilibrium, characteristic of the institutional structure of the Union, which means that each of the institutions is to exercise its powers with due regard to the powers of the other institutions. (77) The allocation of powers within the European Union and the Council’s prerogatives in the sphere of the common foreign and security policy necessarily mean that the other institutions must be given a less prominent role. (78) The same applies to judicial review of the acts adopted by the Council, as demonstrated by Article 24(1) TEU and Article 275 TFEU, which expressly exclude the jurisdiction of the Court in that sphere, with the exception of aspects covered by Article 40 TEU, connected with the procedures and the extent of the powers of the institutions, and review of the legality of restrictive measures against natural or legal persons. (79) As I shall explain in this Opinion, those considerations are relevant for the purpose of defining the scope of judicial review at national level of decisions taken in relation to visas.

94.      The constitutional orders of the Member States provide for an allocation of powers comparable to that described in the preceding paragraphs, traditionally conferring on the executive prerogatives in the sphere of foreign and security policy, for the same reasons as I have mentioned. It is generally incumbent on the executive of a State to formulate foreign policy and to provide diplomatic and consular representation abroad. (80) In accordance with the reasoning set out in this Opinion, it seems to me that judicial review of acts intrinsically linked to that sphere, such as decisions in visa matters, should be more restricted.

95.      In that regard, I must observe that the national court has jurisdiction to apply the law to the cases before it, and is therefore required to evaluate the facts and resolve the legal issues that might arise. Conversely, the national court does not generally have any jurisdiction or expertise in foreign and security policy matters. Nor does it have the necessary legitimacy, in its constitutional order, to take decisions relating to that particularly sensitive sphere. Neither, moreover, can it be precluded that its actions would even frustrate the objectives pursued by the bodies of the State designated to exercise that function. It therefore does not strike me as realistic that the national court should be entrusted with a function that it would be unable to carry out. However, it seems to me that that is precisely what the consequence would be in the event of unlimited judicial review that might require the court to verify each time all the reasons underlying a decision refusing a visa in order to meet the requirements of EU law.

96.      Having taken into account all the abovementioned aspects in the context of the interpretation of Article 32(3) of the Visa Code, I am convinced that a less thorough judicial review by the national court is required in the present cases. I note in that regard that I am not the only Advocate General at the Court to support that theory, as I shall show in the following points.

(c)    The Member States may provide for a less thorough judicial review

97.      I unreservedly support the view of Advocates General Bobek and Szpunar, who are in favour of a less thorough judicial review, their argument relying on the wide discretion which the decision-taking authorities have as to the eligibility of an individual to obtain a visa.

98.      As Advocate General Bobek has correctly observed, ‘the wide margin of discretion available to the Member States’ authorities logically translates into a lighter standard for judicial review to be carried out by the Member States’ courts’. (81) As for Advocate General Szpunar, he observes that ‘a wide margin of discretion implies limited judicial review. Otherwise the margin of discretion would be frustrated and the judiciary would be doing the job of the executive.’ (82) That argument seems to me to be particularly convincing in a context such as that of the sphere of visas, where, as I have already explained, the competent authorities must undertake complex evaluations in order to protect security throughout the Schengen area from external threats, without being absolutely certain about the existence of a specific risk. (83) A national court cannot substitute itself for the competent authorities, which, moreover, have the necessary powers and means to carry out that task.

99.      In addition, it seems to me that the argument outlined by Advocate General Mengozzi is in a similar vein when he writes that the appeal procedure is conceived in order to avoid arbitrary decision-making. (84) A review designed to prevent arbitrariness implies, by definition, the existence of a relatively high bar to establishing the illegality of an administrative decision. (85)

100. That interpretation has been confirmed by the case-law of the Court, which, in the judgment in Fahimian, held that the national judicial body must have jurisdiction to consider all the relevant issues, although its review is limited to assessing ‘the absence of manifest error’. (86)

101. That assertion means, in my view, that the national body required to conduct a judicial review of a decision taken by the administration, refusing a visa on the ground that the individual concerned is considered to be a threat to public order, internal security or public health, or to the international relations of a Member State, as defined in Article 32(1)(a)(vi) of the Visa Code, must be able itself to ascertain whether the procedure for consultation of the central authorities of other Member States described in Article 22 of the Visa Code was applied correctly and whether the procedural guarantees were complied with in the case before it.

102. As regards the substance of the decision refusing a visa, the judicial review must provide for the possibility for the national judicial body concerned to verify that the limits of the margin of discretion exercised by the administration for the purpose of determining whether the applicant was eligible to obtain a visa were not exceeded. For that purpose, the judicial body will have to examine whether the relevant elements on which the exercise of the discretion depends were present. In the absence of a manifest error on the part of the administration, the judicial body must conclude that the decision refusing a visa was legal.

103. In order to examine whether there is a manifest error of assessment, the judicial body must rely on the information contained in the judicial case file, which includes the standard form, duly completed, any ‘remarks’ supporting the decision refusing a visa and any other information supplied by the administration in the context of the pre-contentious administrative procedure. The judicial body must take the specific circumstances of each individual case into account, in particular legitimate security concerns as to the nature and the sources of the information.

(d)    How are Member States’ legitimate security concerns to be reconciled with the procedural guarantees required by the rule of law?

104. When carrying out the judicial review, the authorities will occasionally be required to deal with confidential data, which raises the question of how Member States’ legitimate security concerns are to be reconciled with the procedural guarantees required by the rule of law.

105. In principle, the answer to this question follows from the observations set out above, which take account of the legal status of the visa applicant and the security concerns of the Member States. At the present stage of development of EU law, the Member States are not required to give an exhaustive account of the reasons on which the decision refusing a visa is based, which might result in their disclosing or permitting the disclosure of sensitive information that might pose a serious risk for their national interests. They may confine themselves to making available to the judicial body the information contained in the standard form set out in Annex VI to the Visa Code, including any ‘remarks’, and also other information supplied by the administration, for example following a complaint, in order to facilitate a review of legality.

106. In so far as EU law provides minimum guarantees, leaving to the Member States the task of determining the detailed rules of the appeal procedure, while observing the principles of equivalence and effectiveness, there is nothing to prevent the Member States from also making the information classified as confidential available to the judicial body, on certain conditions. Where appropriate, as the Court has recognised in its case-law, (87) the Member States may, in order to protect their national interests, request the judicial body to apply ‘techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the [decision refusing a visa] concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process’.

(e)    Intermediate conclusion

107. Having regard to the foregoing considerations, I reach the following intermediate conclusion.

108. EU law provides for limited judicial review that takes the specific nature of the procedure for issuing visas into account.

4.      The answer to Question 1

109. On the basis of that analysis, the answer to Question 1 should be that the decision on refusal which the visa applicant receives from the national authorities, namely the standard form containing any remarks, meets, in principle, the requirements of the right to an effective remedy under Article 47 of the Charter. Although, at the present stage of development of EU law, the Member States are not required to supply a detailed statement of reasons, there is nothing to prevent them from including ‘remarks’ in the standard form, and other information supplied by the administration, for example following a complaint, in order to facilitate a review of legality.

110. To the extent that EU law provides minimum guarantees, leaving to the Member States the task of determining the detailed rules of the appeal procedure while observing the principles of equivalence and effectiveness, there is nothing to prevent them from also making information classified as confidential available to the judicial body, on certain conditions. Where appropriate, the Member States may, in order to protect their national interests, request the judicial body to apply techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information which have been taken into account in the adoption of the decision on refusal concerned and, on the other, the need to guarantee sufficiently to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process.

C.      Question 2

111. By its second question, the referring court asks whether Article 41 of the Charter, which enshrines the right to good administration, must be interpreted as precluding a practice such as that described in Question 1.

112. Article 41(1) of the Charter provides that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. It thus follows from the wording of Article 41 that the Charter is addressed not to the Member States but only to the institutions, bodies, offices and agencies of the Union. (88)

113. Consequently, a person who challenges a decision refusing a visa cannot rely on Article 41(2)(c) of the Charter, on the obligation of the administration to give reasons for its decisions in any procedure related to his or her application. (89)

114. It must be pointed out, however, that the right to good administration is inherent in the provisions of Article 47 of the Charter, on the right to an effective remedy and to a fair trial. (90) The Court has recognised that that right reflects a general principle of EU law, the right to an effective remedy. (91) That principle is now expressed by Article 47 of the Charter. (92)

115. In the light of those considerations, I consider that, in the cases in the main proceedings, it must be considered that, in the circumstances referred to in Question 1, the right to good administration is ensured for the same reasons as those stated in the answer to the Question 1, relating to the conformity to Article 47 of the Charter of the situation examined in the cases in question.

D.      Questions 3 and 4

116. I propose to give a single answer to Questions 3 and 4, since they relate to the possibility of lodging an appeal against the objection to the issuing of a visa raised by another Member State in the context of the consultation procedure referred to in Article 22 of the Visa Code.

1.      The limits of the Member States’ procedural autonomy

117. In that regard, it should be recalled that the Visa Code brings about only partial legislative harmonisation. (93) It follows that that code does not provide for any specific procedure for challenging the assessment of the Member State that objected to the issuing of a visa on the basis of Article 22(2) of the Visa Code.

118. In addition, it should be observed that the procedure provided for in Article 8(1) and (2) of the VIS Regulation is not applicable to the present cases, since the applicants in the main proceedings are not the subjects of an alert for the purposes of refusal of a visa in the VIS or of an alert for the purposes of refusal of entry to the Schengen area in the SIS. (94)

119. It follows from the Court’s settled case-law that, 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). (95) However, the Member States cannot avoid the requirements imposed by the right guaranteed in Article 47 of the Charter as regards effective judicial protection. (96) Consequently, they are required to make provision for appropriate remedies in their respective legal orders. (97) As I shall illustrate below, various options may be envisaged, without a specific model being favoured. (98)

2.      The obligation to inform applicants about the available remedies

120. In that context, the question arises whether the Member States are required to inform applicants about the available remedies. In that regard, I note that there is no provision in the Visa Code that expressly regulates that aspect. However, Article 32(3) of the Visa Code lays down a requirement to provide applicants with information regarding the remedies available against the decision refusing a visa. I am in favour of that provision being applied by analogy, for the reasons which I shall set out in this Opinion.

121. As explained above, (99) the decision refusing a visa reflects the findings of the examination carried out by the Member State responsible for adopting the final decision, and also the result of the consultation procedure referred to in Article 22 of the Visa Code. It may therefore be assumed that the objection raised by one or more Member States is a constituent part of the administrative decision. In so far as Article 32(2) of the Visa Code provides that the applicant must be informed of the reason for the refusal by means of the standard form set out in Annex VI thereto, it seems logical to me that that obligation to supply information should be extended to the remedies available against the objection raised by one or more Member States.

122. The application of Article 32(3) of the Visa Code, at least by analogy, is necessary in order to ensure the coherence and effectiveness of judicial protection in the context of the appeal guaranteed by the Visa Code. When the national administrative bodies apply EU law they are inevitably required to interact in numerous ways, leading to cross-checking and the identification of common elements. In a situation such as that of the present cases, which entails the application of the norms of different legal orders and the participation of several administrative bodies, the protection of the rights of the person concerned may prove complex. In order not to render it illusory, the Member States should, in my view, be required to supply applicants with information relating to the remedies, upon request or following a complaint. (100)

123. It is apparent from the order of the Court in Guérin automobiles v Commission (101) that in the majority of the Member States the administrative authorities are under such an obligation to provide information. As the Court rightly held, ‘it is generally the legislature that has created and regulated that obligation’. (102) That said, the EU legislature expressly provided for such an obligation to supply information in Article 32(3) of the Visa Code in order to facilitate judicial review. The application of that provision to the remedies available against the objection raised by one or more Member States which I propose merely renders the judicial protection guaranteed by the legislature more coherent and effective.

124. In conclusion, I draw attention to the fact that the European Code of Good Administrative Behaviour, drawn up by the European Ombudsman, provides in Article 19(1) the obligation to indicate the remedies available for challenging any decisions of the EU institutions that may adversely affect the rights or interests of a private person. The same applies to the code drawn up by the Commission, which lays down that obligation ‘where EU law so provides’. Although those codes are not directly applicable to the present cases because it is the Member States that apply the Visa Code, they permit conclusions to be drawn as to the importance of such information for the protection of rights in the context of an administrative procedure. (103)

3.      Matters for consideration: possible options for remedies to be developed by the Member States

125. As indicated above, the protection of the rights of the individual may prove complex depending on the context of the specific case, especially because the legal orders of the Member States may make provision for different remedies. The information relating to the remedies will therefore have to take account of the way in which the different administrative bodies cooperated in the context of the examination of a visa application.

126. That said, and subject to the procedural autonomy of Member States to adopt the procedural rules applicable to remedies intended to ensure the protection of the rights of individuals, it seems to me that various options may in theory be envisaged. First, it is possible to provide for a remedy exclusively in the Member State that adopts the final decision, that option being best adapted to the idea of a ‘one-stop’ described by the referring court. Second, it is possible to envisage a remedy in the Member State that raised the objection. The purpose of the following considerations is to provide a few matters for consideration in order to provide a useful answer to the referring court.

(a)    A remedy in the Member State that adopts the final decision?

127. As stated in Article 32(3) of the Visa Code, the appeal against a decision refusing a visa must 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’.

128. In the absence of more detailed provisions, that does not necessarily mean that a challenge against an objection made by another Member State must also be brought before the authorities of the Member State that has taken the final decision. However, I am of the view that the wording of Article 32(3) of the Visa Code must be interpreted as providing a strong indication that the legislature was in favour of the idea of the ‘one stop’ principle, enshrined in recital 7 of the Visa Code, which would allow the applicant to deal with only a single authority and to complete all the administrative formalities in a single place. The advantages for the protection of his or her interests are obvious, especially since he or she would thus be spared the trouble of approaching more than one national administration, each operating according to different rules. The concept of one administrative procedure taking place in several stages and involving the participation of different specialised bodies is not unknown in administrative law, both within the European Union and in the Member States. There is thus nothing to prevent the Member States from putting the appropriate mechanisms in place by common consent, at least so long as any amendments of the Visa Code have not been adopted.

129. The provisions of the Visa Code do not preclude such an approach, provided that national procedural law and agreements between the Member States concerned, concluded in the exercise of their sovereign rights, so provide. In that regard, the option available to Member States under Article 8 of the Visa Code, which allows them to be represented by other Member States for the purpose of examining applications and issuing visas, should be borne in mind. Although that provision relates only to a specific situation, namely that of representation, it shows that a Member State may entrust powers to the authorities of another Member State to process visa applications.

130. Contrary to what the referring court seems to assume, the intervention of the Member State that raised an objection in the context of the actual judicial procedure (104) does not seem to me to be the only option that might be envisaged. It would also be possible to provide for a transfer of information between the Member States concerned in a spirit of sincere cooperation and mutual respect – principles on which the Union is founded, as stated in Article 4(3) TEU –, (105) the Member State responsible for adopting the final decision being the one that makes the information obtained available to the national court. In order to protect the confidentiality of the information supplied, that Member State might undertake to request the judicial body to implement the techniques referred to in point 106 of this Opinion.

(b)    A remedy in the Member State that raised the objection?

131. A remedy might be available in the Member State that objected to the issue of a visa.

132. However, it should be noted that, even if EU law does not preclude it, such an approach requires a particular effort on the part of the visa applicant, in the sense that he or she will be obliged to appeal before the authorities of a Member State with which he or she has no link and which may not be his or her destination. (106) Seen from that perspective, requiring the applicant to lodge an appeal before the Member State that raised an objection to the issuing of a visa does not appear to be the most appropriate option for guaranteeing effective judicial protection.

133. In the event that provision were made for an ‘ancillary’ action being brought in another Member State, it would be reasonable to provide for the ‘main’ proceedings to be stayed pending the conclusion of that ancillary action, in the interest of the consistency and effectiveness of judicial protection.

(c)    The answer to Questions 3 and 4

134. On the basis of the arguments set out above, I propose that the answer to the Questions 3 and 4 should be as follows.

135. It is within the jurisdiction of the Member States to decide on the nature of and the specific rules applicable to the remedies available to visa applicants to challenge the objections raised to the issuing of a visa in the context of the consultation procedure provided for in Article 22 of the Visa Code.

136. Along the lines of what is provided for in Article 32(3) of the Visa Code, the Member States should provide applicants with information relating to the remedies, upon application or following a complaint.

VI.    Conclusion

137. In the light of the foregoing considerations, I propose that the Court should answer the questions for a preliminary ruling referred by the Rechtbank Den Haag, zittingsplaats Haarlem (District Court of the Hague, sitting in Haarlem, Netherlands) as follows:

(1)      The decision on refusal which the visa applicant receives from the national authorities, namely the standard form set out in Annex VI to 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), containing any remarks, meets, in principle, the requirements of the right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union. Although, at the present stage of development of EU law, the Member States are not required to supply a detailed statement of reasons, there is nothing to prevent them from including ‘remarks’ in the standard form, and other information supplied by the administration, for example following a complaint, in order to facilitate a review of legality.

(2)      To the extent that EU law provides minimum guarantees, leaving to the Member States the task of determining the detailed rules of the appeal procedure while observing the principles of equivalence and effectiveness, there is nothing to prevent them from also making information classified as confidential available to the judicial body, on certain conditions. Where appropriate, the Member States may, in order to protect their national interests, request the judicial body to apply techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the decision on refusal concerned and, on the other, the need to guarantee sufficiently to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process.

(3)      It is within the jurisdiction of the Member States to decide on the nature of and the specific rules applicable to the remedies available to visa applicants to challenge the objections raised to the issuing of a visa in the context of the consultation procedure provided for in Article 22 of the Visa Code.

(4)      The Member States should provide applicants with information relating to the remedies, upon application or following a complaint.

1      Original language: French.

2       OJ 2009 L 243, p. 1.

3       See the view of Advocate General Sharpston in Vo (C‑83/12 PPU, EU:C:2012:170, point 42) and also her Opinion in Vethanayagam and Others (C‑680/17, EU:C:2019:278, point 37).

4       See, to that effect, judgment of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraphs 44 to 55).

5       OJ 2008 L 218, p. 60.

6       Meloni, A., ‘The Community Code on Visas: harmonisation at last?’, European Law Review, 2009, Vol. 34, p. 671, explains that introduction of an obligation to state the reasons for the refusal of a visa and a right of appeal were non-negotiable sticking points for the European Parliament, supported by the Commission and some Member States, which regarded those provisions as a ‘cornerstone’ in safeguards for visa applicants. Conversely, a broad majority of Member States was in favour of declining to give reasons for refusal of a visa and opposed the introduction of a right of appeal, concerned at the risk of their domestic courts being swamped. By introducing those obligations, the visa code remedied a weakness in the old regime, namely the lack of a uniform approach in relation to the rights and remedies available open to visa applicants who are refused visas.

7       Judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 42).

8       Judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 53 and the case-law cited).

9       Judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 42).

10       See point 41 of this Opinion.

11       Jarass, H., Charta der Grundrechte der Europäischen Union, 3^rd Edition, Munich, 2016, Article 47 of the Charter, paragraphs 5, 48 and 49, states that Article 47 of the Charter applies, in principle, only to the judicial procedure, whereas Article 41(2) of the Charter establishes rights in the context of the pre-contentious administrative procedure. Nonetheless, Article 47 of the Charter may be invoked if Article 41 of the Charter does not apply, which is the case when Member States implement EU law. According to the author, Article 47 of the Charter gives rise to the obligation to provide a sufficient statement of reasons for administrative decisions that affect the situation of the person concerned. The authority may decline to provide such a statement of reasons for reasons connected with the security of the State. See also Lemke, S., Europäisches Unionsrecht, 7^th Edition, Baden-Baden 2015, Article 47 of the Charter, paragraph 4, p. 807, who declares that he is in favour of the applicability of Article 47 of the Charter where Member States implement EU law. Brouwer, E.R., ‘Wanneer een staat een visum weigert namens een andere staat – Vertegenwoordigingsafspraken in het EU-visumbeleid en het recht op effectieve rechtsbescherming’, SEW Tijdschrift voor Europees en Economisch recht, 2015 (April), p. 165, analyses the failure to state reasons for a decision refusing a visa in the light of Article 47 of the Charter. Hoffmann, H., The EU Charter of Fundamental Rights, Oxford 2014, paragraph 47.67, p. 1219, analyses the right to obtain the reasons for an administrative act from the aspect of effective judicial protection under Article 47 of the Charter.

12       Judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 51).

13       See judgment of 15 February 2016, J.N. (C‑601/15 PPU, EU:C:2016:84, paragraph 53). See, to that effect, Van Drooghenbroeck, S./Rizcallah, C., Charte des droits fondamentaux de l’Union européenne – Commentaire article par article, Bruylant, Brussels 2018, pp. 1099 and 1103.

14       Judgment of 17 November 2011, Gaydarov (C-430/10, EU:C:2011:749, paragraph 41). See also judgments of 17 March 2011, Peñarroja Fa (C‑372/09 and C‑373/09, EU:C:2011:156, paragraph 63), and of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 53).

15       See judgment of 12 July 1989, Belardinelli and Others v Court of Justice (225/87, EU:C:1989:309, paragraph 7), in which the Court pointed out that it had consistently held that, in order to take account of the practical difficulties which arise in a competition in which there is a very large number of applicants, the Selection Board for such a competition may initially send to candidates merely information on the criteria for selection and the result thereof, provided that they give individual explanations at a later stage to those candidates who expressly request them.

16       See, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 63); of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 166); of 16 November 2011, Bank Melli Iran v Council (C‑548/09 P, EU:C:2011:735, paragraph 93); of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 139); of 11 July 2013, Team Relocations and Others v Commission (C‑444/11 P, not published, EU:C:2013:464, paragraph 120); and of 28 March 2017, Rosneft (C 72/15, EU:C:2017:236, paragraph 122).

17       See, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 63); of 22 June 2004, Portugal v Commission (C‑42/01, EU:C:2004:379, paragraph 66); of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 166); of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 140); of 11 July 2013, Team Relocations and Others v Commission (C‑444/11 P, not published, EU:C:2013:464, paragraph 120); and of 28 March 2017, Rosneft (C 72/15, EU:C:2017:236, paragraph 122).

18       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232).

19       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 51).

20       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 51).

21       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 52).

22       As the Czech Government observes in its answer to the questions put by the Court, referring to the legal bases of the Treaties that permit the adoption of the Visa Code, they are aimed only at rendering the procedures of the Member States uniform in a particular field, and not at introducing a general right to enter the territory of the Member States.

23       Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659).

24       Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 98).

25       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908).

26       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 29).

27       According to the definition provided by Von Jhering, R., ‘Der Geist des römischen Rechts auf verschiedenen Stufen seiner Entwicklung’, III^rd Part, First Section, Leipzig 1865, p. 316, cited by Hacker, P, Verhaltensökonomik und Normativität, Tübingen 2017, p. 234.

28       Alexy, R., ‘Grundrechte als subjektive Rechte und als objektive Normen’, Der Staat, 1990, No 29, p. 53.

29       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 47).

30       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 27).

31       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 28).

32       OJ 2003 L 251, p. 12.

33       See, to that effect, judgments of 27 June 2006, Parliament v Council (C‑540/03, EU:C:2006:429, paragraph 60), and of 4 March 2010, Chakroun (C‑578/08, EU:C:2010:117, paragraph 41).

34       Meloni, A., ‘EU visa policy: What kind of solidarity?’, Maastricht Journal of European and Comparative Law, 10/2017, Vol. 24, No 5, p. 652.

35       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 51).

36       Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 99).

37       Palosaari, T., ‘From “Thin” to “Thick” foreign policy europeanization: Common Foreign and Security Policy and Finland’, European Foreign Affairs Review, 12/2016, Volume 21, No 4, p. 583, emphasises the intergovernmental nature of the EU common foreign and security policy, and the traditional relationship of that policy with the sovereignty of the State; Koutrakos, P., ‘Judicial review in the EU’s common foreign and security policy’, International and Comparative Law Quarterly, 01/2018, Vol. 67, No 1, p. 1, asserts that it is normal to regard the foreign and security policy as an area of sovereign wills and national interests par excellence.

38       Carli, E., La politica di sicurezza e di difesa comune dell’Unione europea, Torino 2019, pp. 16 and 393, emphasises the requirement for unanimity for decisions adopted within the Council, which, in the author’s view, demonstrates the intergovernmental nature of the common foreign and security policy.

39       See ‘Declaration 13 concerning the common foreign and security policy’ annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon.

40       Dumas, P., L’accès des ressortissants des pays tiers au territoire des États membres de l’Union européenne, Brussels 2013, p. 146; Balleix, C., La politique migratoire de l’Union européenne, Paris 2013, p. 47.

41       Meloni, A., ‘EU visa policy: What kind of solidarity?’, Maastricht Journal of European and Comparative Law, 10/2017, Vol. 24, No 5, p. 653.

42       Dumas, P., L’accès des ressortissants des pays tiers au territoire des États membres de l’Union européenne, Brussels 2013, p. 144; Delcour, L., ‘The EU’s visa liberalisation policy – What kind of transformative power in neighbouring regions?’, The Routledge Handbook of the Politics of Migration in Europe, Chapter 32, London 2019, p. 410.

43       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 49).

44       See similar observations made by Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 58).

45       Mungianu, R., ‘Frontex: Towards a Common Policy on External Border Control’, European Journal of Migration and Law, Vol. 15, No 4, 2013, p. 360; García Andrade, P., ‘EU external competences in the field of migration: How to act externally when thinking internally’, Common Market Law Review, 02/2018, Vol. 55, No 1, p. 163; Mazille, C., ‘L’accès des étrangers au territoire de l’Union et l’exigence de sécurité publique’, Revue française de droit administratif, 11/2017, No 5, p. 929.

46       Judgment of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862).

47       Judgment of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraph 56).

48       Judgment of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraph 57).

49       Judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 36).

50       OJ 2004 L 375, p. 12.

51       Judgment of 4 April 2017, Fahimian (C‑544/15, EU:C:2017:255, paragraph 42). Mention should also be made of the judgment of 10 September 2014, Ben Alaya (C‑491/13, EU:C:2014:2187, paragraph 33), which also concerns the interpretation of Directive 2004/114.

52       Judgment of 4 April 2017, Fahimian (C‑544/15, EU:C:2017:255, paragraph 43).

53       Judgment of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraph 60).

54       Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 57).

55       OJ 2004 L 158, p. 77.

56       Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 56).

57       Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 62).

58       Judgments of 8 May 2013, Ymeraga and Others (C‑87/12, EU:C:2013:291, paragraph 34); of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 36); and of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 34).

59       See point 43 of this Opinion.

60       See point 50 of this Opinion.

61       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 56).

62       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 59).

63       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 61).

64       Judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 51).

65       See point 43 of this Opinion.

66       Caniard, H., ‘Pouvoirs et moyens de l’Agence européenne de garde-frontières et de garde-côtes: Le règlement (UE) 2016/1624 traduit-il un renforcement des moyens et capacités?’, De Frontex à Frontex – Vers l’émergence d’un service européen des garde-côtes et garde-frontières, Brussels 2019, p. 43, observes that, although powers have been attributed to the Union in connection with the area of freedom, security and justice, the Treaties contain clauses which reserve powers to the States.

67       Judgments of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 54), and of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 125).

68       OJ 2019 L 188, p. 25.

69       Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 119).

70       Judgment of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraph 42).

71       See point 48 of this Opinion.

72       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 56).

73       Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 105).

74       See points 61 to 63 of this Opinion.

75       See point 62 of this Opinion.

76       Eeckhout, P., EU External Relations Law, 2^nd Edition, Oxford 2012, p. 486, states that the Council is the most important institution in the sphere of the common foreign and security policy. Although the adoption of decisions in application of the FEU Treaty is characterised by a clear separation of powers between the Parliament, the Council and the Commission, which requires constant cooperation between those institutions, the Council clearly ‘controls’ the common foreign and security policy. The author explains that the functions carried out by the Council in that sphere are mainly of an ‘executive’ nature.

77       Judgments of 14 April 2015, Council v Commission (C‑409/13, EU:C:2015:217, paragraph 64), and of 28 July 2016, Council v Commission (C‑660/13, EU:C:2016:616, paragraphs 31 and 32).

78       See point 61 of this Opinion concerning the secondary role assigned to the Parliament in the sphere of the common foreign and security policy.

79       Judgments of 19 July 2016, H v Council and Commission (C‑455/14 P, EU:C:2016:569, paragraph 39), and of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 60).

80       See, inter alia, the constitutional law of the United States of America, which has the doctrine of ‘executive power’, which confers on the President very significant powers in the sphere of external and defence policy by comparison with the Congress (to that effect, Prakash, S., and Ramsey, M., ‘The Executive Power over Foreign Affairs’, Yale Law Journal, 11/2001, Vol. 111, No 2, p. 233), the role of the Federal Government according to German constitutional law (Röben, V., Außenverfassungsrecht, Tübingen 2007, p. 91), and the prerogatives of the executive in French constitutional law (Martin, V., ‘Les relations extérieures, “domaine réservé” du pouvoir exécutif?’, Giornale di Storia Costituzionale, 2014, No 28, p. 77).

81       Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 109).

82       Opinion of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908, point 72).

83       See point 65 of this Opinion.

84       Opinion of Advocate General Mengozzi in Koushkaki (C‑84/12, EU:C:2013:232, point 63). See also the Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 109), where he expresses the view that ‘it is sufficient for national courts to ensure that the visa refusal was not arbitrarily decided’.

85       It follows from the Court’s case-law that an administrative decision authorising a check is arbitrary when it was adopted in the absence of any factual circumstance capable of justifying that check. See, to that effect, judgments of 18 June 2002, HI (C‑92/00, EU:C:2002:379, paragraphs 56 to 64), and of 22 October 2002, Roquette Frères (C‑94/00, EU:C:2002:603, paragraph 55).

86       Judgment of 4 April 2017, Fahimian (C‑544/15, EU:C:2017:255, paragraph 46).

87       Judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v. Council and Commission (C‑402/05 P et C‑415/05 P, EU:C:2008:461, paragraph 344), and of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 57).

88       Judgments of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 28); of 17 July 2014, YS and Others (C‑141/12 and C‑372/12, EU:C:2014:2081 paragraph 67); and of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 44).

89       See Lemke, S., Europäisches Unionsrecht (von der Groeben / Schwarze / Hatje), Article 47, 7^th Edition, Baden-Baden 2015, p. 807, who argues that Article 41 of the Charter is not applicable to the law on administrative procedure of the Member States, even when they implement EU law.

90       Opinion of Advocate General Sharpston in Joined Cases YS and Others (C‑141/12 and C‑372/12, EU:C:2013:838, point 36).

91       Judgment of 8 May 2014, H. N. (C‑604/12, EU:C:2014:302, paragraph 49).

92       Judgment of 22 December 2010, DEB (C‑279/09, EU:C:2010:811, paragraphs 30 and 31); order 1 March 2011, Chartry (C‑457/09, EU:C:2011:101, paragraph 25); and judgment of 28 July 2011, Samba Diouf (C‑69/10, EU:C:2011:524, paragraph 49).

93       See point 3 of this Opinion.

94       See point 29 of this Opinion.

95       Judgments of 15 March 2017, Aquino (C‑3/16, EU:C:2017:209, paragraph 48); of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraphs 25 and 26); and of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (C‑406/18, EU:C:2020:216, paragraph 26).

96       Judgments of 8 March 2011, Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125, paragraph 47); of 15 September 2016, Star Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46); and of 8 November 2016, Lesoochranárske zoskupenie VLK (C‑243/15, EU:C:2016:838, paragraph 65).

97       See, to that effect, von Danwitz, T., Europäisches Verwaltungsrecht, Cologne 2008, p. 277.

98       According to Alber, S., Europäische Grundrechte-Charta – Kommentar, Stern/Sachs, Munich, 2016, article 47, paragraphs 55 and 56, p. 711, Article 47 of the Charter does not specify the remedies that Member States must provide for. Consequently, they may vary from one Member State to another. Article 47 does not require that they be harmonised or adapted to the highest standard.

99       See point 46 of this Opinion.

100       Schmidt-Assmann, E., Kohärenz und Konsistenz des Verwaltungsrechtsschutzes, Tübingen 2015, p. 55, argues in favour of an obligation to provide information concerning the remedies available to the addressee of an administration decision, at least in complex administrative situations.

101       Order of du 5 March 1999, Guérin automobiles v Commission (C‑153/98 P, EU:C:1999:123).

102       Order of 5 March 1999, Guérin automobiles v Commission (C‑153/98 P, EU:C:1999:123, paragraph 14).

103       Sander, P., Charta der Grundrechte der Europäischen Union – GRC-Kommentar (Holoubek/Lienbacher), Vienna 2014, article 41, paragraph 21, p. 543, and Jarass, H., Charta der Grundrechte der Europäischen Union, 3^rd edition, Munich 2016, article 47, paragraph 49, are of the view that an obligation to inform the addressee of an administrative decision of the remedies cannot be clearly inferred from the Court’s case-law. They nonetheless refer to the importance of the Codes of Good Administrative Behaviour of the European Ombudsman and the Commission.

104      In their answers to the questions put by the Court, the German and Polish Governments refer to the provisions of their national laws on administrative procedure, which allow, in principle, the participation of third parties in a judicial procedure owing to their legal interest. Nonetheless, a number of Member States expressed reservations about that possibility in the light of the principle of sovereign equality of States, which precludes one State from submitting to the jurisdiction of another State (‘par in parem non habet imperium’; see judgment of the International Court of Justice of 3 February 2012, Germany v. Italy: Greece intervening, in the ‘jurisdictional immunities of the State’ case).

105      That said, I would observe that the German and Polish Governments indicated in their answers to the questions put by the Court that such an exchange of information between the authorities of the Member States may in fact take place. The Polish Government considers that a Member State which objects to the issuing of a visa pursuant to Article 22(2) of the Visa Code must state its reasons for doing so. In the absence of such reasons, the Member State examining the visa application may submit a question in order to obtain further information (including any relevant additional documents). According to the Polish Government, the answers to the questions and any documents produced may be communicated in the context of the exchange of information supplementing consultation on visas, provided that they do not constitute classified information, for which it would be necessary to apply the requirements relating to classified information and to use the appropriate secure means of communication. The answers to questions supplementing the consultation on visas should be provided without undue delay.

106      See the similar reasoning of Advocate General Sharpston in her Opinion in Vethanayagam and Others (C-680/17, EU:C:2019:278, point 81) concerning the representation mechanism provided for in Article 8 of the Visa Code.

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