Legal framework
The legal framework consists of provisions of EU and national law concerning the
right of appeal against a decision to refuse a Schengen visa issued by a consul.
1.1 Provisions of Union law
First paragraph of Article 47 of the Charter of Fundamental Rights of the
European Union (OJ 2012 No. C 326, pp. 391-407) - hereinafter: the Charter of
Fundamental Rights: "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."
Recital 29 of Regulation (EC) No 810/2009 of the European Parliament and of the
Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ
2009 No. L 243, p.1-58) - hereinafter: Visa Code: "This Regulation respects the
fundamental rights and observes the principles recognised in particular by the
Convention for the Protection of Human Rights and Fundamental Freedoms
adopted by the Council of Europe and by the Charter of Fundamental Rights of
the European Union".
Article 32(3) of the Visa Code: "Applicants who have been refused a visa shall
have the right to appeal against such decision. The appeal procedure shall be
conducted against the Member State that has taken the final decision on the
application, 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".
1.2 Provisions of national (Polish) law
Article 60(1)(2) of the Act of 12 December 2013 on Foreigners (Dz. U. of 2013,
item 1650 as amended) - hereinafter: the Act on Foreigners: "A Schengen visa or
a national visa shall be issued for the purpose of: (...) 2) visiting family or friends"
and Article 76(1) of the Aliens Act: "Against the decision to refuse to issue a
Schengen visa (...) issued by: 1) a consul - may apply for reconsideration by this
authority; 2) a commanding officer of a Border Guard post - may be appealed to
the Commander-in-Chief of the Border Guard".
Article 1 § 1 of the Act of 25 July 2002. Law on the System of Administrative
Courts (Journal of Laws of 2014, item 1647 as amended): "Administrative courts
exercise the administration of justice by controlling the activities of public
administration and resolving competence and jurisdiction disputes between
bodies of local self-government units, local self-government appeal colleges and
between these bodies and bodies of government administration".
The facts of the case
2.1 Proceedings before the Consul
S. H. (hereinafter: the applicant) applied to the Consul of the Republic of Poland
in Rabat (Morocco) on 24 December 2014 for a Schengen visa. The applicant's
wife and child live in Poland. The consul issued a negative decision on [...]
January 2015. The applicant applied for reconsideration by the Consul, who again
refused to issue the visa on [...] January 2015. The basis for the refusal of the visa
was uncertainty as to the applicant's intention to leave Poland before the expiry
of the visa.
2.2 Proceedings before the administrative courts
2.2.1. In his complaint against the Consul's decision of [...] January 2015
addressed to the Voivodship Administrative Court in Warsaw (hereinafter also
referred to as the "Court of First Instance"), the applicant alleged, inter alia, a
violation of: Article 60(1)(2) of the Aliens Act, in conjunction with Article 8 of the
Convention for the Protection of Human Rights and Fundamental Freedoms, by
not granting a visa for the purpose of visiting family and friends.
The applicant complained that section 76 (1) (1) of the Aliens Act did not provide
for a standard of protection under Article 13 of the Convention for the Protection
of Human Rights and Fundamental Freedoms, signed in Rome on 4 November
1950. (Journal of Laws of 1993, No. 61, item 284, as amended) - hereinafter: the
Convention for the Protection of Human Rights and Fundamental Freedoms. In his
view, Article 5(4) of the Law on Proceedings before Administrative Courts violates
Article 14 of the Convention for the Protection of Human Rights and Fundamental
Freedoms. The applicant does not have the right to lodge a complaint with an
administrative court, although he has a wife and child in Poland, and spouses of
EU citizens - foreigners have such a possibility.
3.3.2. This issue is related to the principle of procedural (institutional) autonomy
of the Member States insofar as it concerns the obligation of the Member States
to ensure the protection of individual rights derived from EU law, to effective
access to a court and thus, in the context of EU law, the principle of effective
judicial protection. The procedural autonomy of the Member States is understood
as the competence of the Member State to regulate the jurisdiction of the courts
and the (judicial) procedures for hearing claims based on EU law (cf. judgments
of the CJ: of 16 December 1976: in Rewe, 33/76, ECLI:EU:C:1976:188; in Comet,
45/76, ECLI:EU:C:1976:191). This principle is subject to limitations under EU law,
including the first paragraph of Article 47 of the Charter of Fundamental Rights.
In determining the standard of protection, one cannot ignore the position of the
Court pointing to the principle of effective judicial protection as a general
principle of Union law stemming from the common constitutional traditions of the
Member States and protected by Article 6 (right to a fair trial) and Article 13
(right to an effective remedy) of the Convention on Human Rights and
Fundamental Freedoms (cf. judgment of the CJ of 13 March 2007 in Unibet, C-
432/05, ECLI:EU:C:2007:163, paragraph 37). The term "effective remedy" must
be interpreted taking into account the meaning given to the term "effective
remedy" by the case law of the European Court of Human Rights on Article 13 of
the Convention for the Protection of Human Rights and Fundamental Freedoms,
on which the first paragraph of Article 47 of the Charter of Fundamental Rights is
modelled. The ECHR is not part of Union law (cf. judgment of the CJ of 26
February 2013 in Åkeberg Fransson, C-617/10, ECLI:EU:C:2013:105, para 44).
However, pursuant to Article 6(3) TEU, the fundamental rights protected under
the Convention are part of Union law as general principles thereof, and Article
52(3) of the Charter of Fundamental Rights dictates that rights protected under
the Charter corresponding to rights protected under the Convention should be
given the same meaning and the same effect as the rights included in the
Convention, which at the same time does not prevent Union law from granting
more extensive protection.