Today, the European Commission decided to refer Estonia (INFR(2012)2242) to the Court of Justice of the European Union for failing to provide effective judicial remedy against a visa refusal, annulment or revocation. This is a result of the action of Estonia that has not adequately applied visa policy legislation.
The Visa Code requires Member States to provide for a right of appeal against a visa refusal, annulment or revocation, which should be implemented in line with the EU Charter of Fundamental Rights in particular, Article 47, which grants individuals the right to an effective remedy before a tribunal, when rights and freedoms under Union law are violated. However, the Estonian law only provides for a right of appeal before two non-judicial administrative bodies.
The Commission launched the infringement procedure against Estonia on 21 February 2013 by sending a letter of formal notice and followed up with a reasoned opinion on 17 October 2014 and an additional reasoned opinion on 27 February 2015. To date, Estonia has not yet adopted a law providing for a judicial appeal against a visa refusal, annulment or revocation. This means that if a third country national's visa is either refused or annulled or revoked by the administrative authority, the third country national cannot appeal this decision in court. The Commission therefore considers that Estonia has failed to provide an effective judicial review against all decisions constituting a visa refusal, annulment or revocation under national legislation.
Background
The EU Visa Code requires Member States to provide applicants with a right to appeal visa refusals, annulments and revocations. The relevant provisions of the Visa Code (Articles 32(3), 34(7) and 35(7)) became applicable on 5 April 2011. The appeals must be conducted in accordance with the national law of the Member State. Additionally, the principle of effective judicial protection, a general principle of Union law, is reaffirmed by Article 47 of the EU's Charter of Fundamental Rights.
In the preliminary ruling of Case 403/16 delivered on 13 December 2017, the Court of Justice ruled that Article 32(3) of the Visa Code requires Member States to provide an appeal procedure against visa refusals. This must include a judicial appeal at some stage, in accordance with the principles of equivalence and effectiveness. An appeal to an administrative body alone is not considered an effective remedy under Article 47. Legislation is needed to provide effective judicial review of all visa refusal, annulment, or revocation decisions.
