Who has the right to appeal against a decision to refuse a Schengen shorty stay visa?

In Sumanan Vethanayagam and Others v Minister van Buitenlandse Zaken C-680/17 (EU:C: 2019:278), Advocate General Sharpston examines the interpretation of the Visa Code, in the context of the right to appeal against decisions refusing a visa.

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In Sumanan Vethanayagam and Others v Minister van Buitenlandse Zaken C-680/17 (EU:C: 2019:278), Advocate General Sharpston examines the interpretation of the Visa Code, in the context of the right to appeal against decisions refusing a visa.

The first question addressed is whether the Visa Code precludes a sponsor, as an interested party in connection with the visa application, from having a right of objection and appeal in his or her own name, against the refusal of the visa.

It must be first noted that the referring court does not invoke an eventual existence of such a right under the Visa Code.

The AG observes first the absence of EU rules on that matter “the Visa Code has almost nothing to say about the legal situation of sponsors», and as a consequence, in accordance with the principle of procedural autonomy, the law of the Member States must be considered.

However, applying the principle of procedural autonomy, Member States may not derogate from the principles of equivalence (rules are not less favourable than those governing similar domestic situations), and of effectiveness (rules do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law).

Having regard to the above considerations, Advocate General Sharpston takes the view that the Visa Code “does not preclude Member States from giving sponsors of visa applicants right to appeal on their own name against the refusal of a visa application”.

Summarising the AG opinion:

  • to exist, the right must be provided for by the national legislation
  • Member States are not under obligation to provide for such a right (unless the principles of equivalence and/or effectiveness under EU law would be infringed)

In context, the AG observes that “if a visa applicant has already appealed against a refusal decision, it is difficult to conceive how the sponsor could introduce a second appeal against the same decision”.

Another question is referred to the ECJ in relation to the case of representation agreements concluded by Member States lacking their own consulate in a given third country.

The question is essentially whether Article 8(4) of the Visa Code, must be interpreted as meaning that the represented Member State is deemed to be the MS taking the final decision (to refuse an application for a visa), although the decision was taken by the representing MS.

Pursuant to Article 8(4)(d) Visa Code:

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

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

The AG takes the view that the representing MS acts on behalf of the represented MS, and as a consequence, the latter remains the decision maker.

It follows that the represented Member State remains competent for any appeal against a refusal decision.

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Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals

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