Access to legal remedies against a visa refusal based on an objection of another Member State

On 5 March 2019, the District Court of Haarlem asked the Court of Justice of the EU (CJEU) preliminary questions in two visa cases. It concerned the visa applications of two third country nationals, which were refused by the Dutch authorities, based on an objection of another Member State as a result of the consultation procedure codified in Article 22 of the Visa Code. They were not notified of either the identity of the Member State that had objected to the issuing of a visa nor the reasons for that objection. The District Court asked the CJEU whether this was in conformity with the right to an effective remedy and the duty to state reasons for decision guaranteed by Article 47 of the Charter and the principle of good administration.

The Migration Law Clinic wrote an expert opinion in this case. It argued that Member State Practice in which the decision to reject the visa application does not mention which Member State objected to the issuance of a visa nor on which information or reasons this objection was based, is not in conformity with the legislative history, objectives and wording of the Visa Code and the requirements following from Article 47 of the Charter. The expert opinion can be downloaded here.

On 24 November 2020 the CJEU answered the preliminary questions in  Joined Cases C‑225/19 and C‑226/19. It held that Article 32(2) and (3) of the Visa Code read in the light of Article 47 of the Charter must be interpreted as meaning, first, that a Member State which has adopted a final decision refusing to issue a visa because another Member State objected to the issuing of that visa is required to indicate, in that decision, the identity of the Member State which raised that objection and the specific ground for refusal based on that objection, accompanied, where appropriate, by the essence of the reasons for that objection. Moreover, the decision should mention the authority which the visa applicant may contact in order to ascertain the remedies available in that other Member State. Finally, it should clarify that, where an appeal is lodged against that decision on the basis of Article 32(3) of the Visa Code, the courts of the Member State which adopted that decision cannot examine the substantive legality of the objection raised by another Member State to the issuing of the visa.