Warunki dopuszczalności powołania się na ochronę wynikającą z art. 47 KPP (uwagi na tle wyroku TSUE z 13.12.2017 r. w sprawie El Hassani)

Radosław Puchta

Abstract

This article contains an analysis of the judgment of 13 December 2017 in the El Hassani case, in which ECJ ruled that Article 32(3) of the Community Code on Visas in conjunction with Article 47 of the Charter of Fundament Rights of the European Union, must be interpreted as meaning that it requires Member States to provide for an appeal procedure against decisions refusing visas. The procedural rules are a matter regulated in the legal order of each Member State in accordance with the principles of equivalence and effectiveness. However, those proceedings must, at a certain stage, guarantee a judicial appeal. This is the consequence of Article 47 of the Charter. Unfortunately, the commented judgement does not contain any broader argumentation on why it was admissible to invoke Article 47 of the Charter. Undoubtedly, this provision should be applied when two conditions are met. Firstly, if the case is linked with the implementation of EU law (in the sense of Article 51(1) of the Charter). Secondly, if the case concerns ‘rights and freedoms guaranteed by Union law’. But it should be noted that Article 47 of the Charter does not require such rights and freedoms to result from acts of secondary law. Whenever decisions of national authorities belong to the field of implementation of EU law (in the sense of Article 51(1) of the Charter), all guarantees contained in the Charter can potentially be invoked, including those with a substantive character (like the right to respect for family life protected by Article 7 of the Charter). When any right or freedom enshrined in the Charter has been violated by a national authority applying EU law, access to a court should be guaranteed in accordance with Article 47 of the Charter
Author Radosław Puchta (FASS / DALPP)
Radosław Puchta,,
- Department of Administrative Law and Public Policy
Journal seriesPaństwo i Prawo, ISSN 0031-0980
Issue year2019
No4
Pages35-52
Publication size in sheets0.85
Keywords in PolishUnia Europejska, Karta Praw Podstawowych, traktat, Wspólnotowy Kodeks Wizowy, prawo konstytucyjne
Keywords in EnglishEuropean Union, Charter of Fundamental Rights, Treaty, Community Code on Visas, Constitutional law
Languagepl polski
Score (nominal)70
Score sourcejournalList
ScoreMinisterial score = 70.0, 31-01-2020, ArticleFromJournal
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