Contents
Judgment of the Court (Fifth Chamber)29 July 2024note(Reference for a preliminary ruling — Immigration policy — Directive (EU) 2016/801 — Conditions of entry and residence of third-country nationals for the purposes of studies — Article 20(2)(f) — Application for admission to the territory of a Member State for the purposes of studies — Other purposes — Refusal of a visa — Grounds for rejection of the application — Failure to transpose — General principle that abusive practices are prohibited — Article 34(5) — Procedural autonomy of the Member States — Fundamental right to an effective judicial remedy — Article 47 of the Charter of Fundamental Rights of the European Union)In Case C‑14/23 [Perle],noteREQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium), made by decision of 23 December 2022, received at the Court on 16 January 2023, in the proceedingsXXXvÉtat belge, represented by the secrétaire d’État à l’Asile et la Migration,THE COURT (Fifth Chamber),composed of E. Regan (Rapporteur), President of the Chamber, Z. Csehi, and I. Jarukaitis, Judges,Advocate General: J. Richard de la Tour,Registrar: M. Krausenböck, Administrator,having regard to the written procedure and further to the hearing on 11 October 2023,after considering the observations submitted on behalf of:– XXX, by D. Andrien, avocat,– the Belgian Government, by M. Jacobs, C. Pochet and M. Van Regemorter, acting as Agents, and by E. Derriks and K. de Haes, avocats,– the Czech Government, by M. Smolek, J. Očková and J. Vláčil, acting as Agents,– the Lithuanian Government, by E. Kurelaitytė, acting as Agent,– the Luxembourg Government, by A. Germeaux and T. Schell, acting as Agents,– the Hungarian Government, by M.Z. Fehér, acting as Agent,– the Netherlands Government, by E.M. Besselink, acting as Agent,– the European Commission, by J. Hottiaux and A. Katsimerou, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 16 November 2023,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ 2016 L 132, p. 21), in particular Article 3(3), Article 20(2)(f) and Article 34(5) of that directive, and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2The request has been made in proceedings between XXX and the État belge (Belgian State), represented by the secrétaire d’État à l’Asile et la Migration (Secretary of State for Asylum and Migration, Belgium) concerning the latter’s refusal to grant her the residence permit applied for in order to pursue studies in Belgium.
Legal context
European Union law
3Recitals 2, 3, 14, 41 and 60 to Directive 2016/801 state:(2) This Directive should respond to the need identified in the implementation reports on [Council] Directives 2004/114/EC [of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12)] and 2005/71/EC [of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 L 289, p. 15)] to remedy the identified weaknesses, to ensure increased transparency and legal certainty and to offer a coherent legal framework for different categories of third-country nationals coming to the [European] Union. It should therefore simplify and streamline the existing provisions for those categories in a single instrument. Despite differences between the categories covered by this Directive, they also share a number of characteristics which makes it possible to address them through a common legal framework at Union level.(3) This Directive should contribute to the Stockholm Programme’s aim of approximating national legislation on the conditions for entry and residence of third-country nationals. Immigration from outside the Union is one source of highly skilled people, and students and researchers are in particular increasingly sought after. They play an important role in forming the Union’s key asset, human capital, and in ensuring smart, sustainable and inclusive growth, and therefore contribute to the achievement of the objectives of the Europe 2020 Strategy.…(14) In order to promote Europe as a whole as a world centre of excellence for studies and training, the conditions for entry and residence of those who wish to come to the Union for these purposes should be improved and simplified. ……(41) In case of doubts concerning the grounds of the application for admission, Member States should be able to carry out appropriate checks or require evidence in order to assess, on a case by case basis, the applicant’s intended research, studies, training, voluntary service, pupil exchange scheme or educational project or au pairing and fight against abuse and misuse of the procedure set out in this Directive.…(60) Each Member State should ensure that adequate and regularly updated information is made available to the general public, notably on the internet, concerning the host entities approved for the purposes of this Directive and the conditions and procedures for admission of third-country nationals to the territory of the Member States for the purposes of this Directive.’
4Article 3 of the directive, headed ‘Definitions’, provides:‘For the purposes of this directive, the following definitions apply:…(3) “student” means a third-country national who has been accepted by a higher education institution and is admitted to the territory of a Member State to pursue as a main activity a full-time course of study leading to a higher education qualification recognised by that Member State, including diplomas, certificates or doctoral degrees in a higher education institution, which may cover a preparatory course prior to such education, in accordance with national law, or compulsory training;…’
5Article 5 of that directive, headed ‘Principles’, reads as follows:1.The admission of a third-country national under this Directive shall be subject to the verification of documentary evidence attesting that the third-country national meets:(a) the general conditions laid down in Article 7; and(b) the relevant specific conditions in Article 8, 11, 12, 13, 14 or 16.2. Member States may require the applicant to provide the documentary evidence referred to in paragraph 1 in an official language of the Member State concerned or in any official language of the Union determined by that Member State.3. Where all the general conditions and relevant specific conditions are fulfilled, the third-country national shall be entitled to an authorisation.Where a Member State issues residence permits only on its territory and all the admission conditions laid down in this Directive are fulfilled, the Member State concerned shall issue the third-country national with the requisite visa.’
6Article 7 of Directive 2016/801, headed ‘General conditions’, provides, in paragraph 1 thereof:‘As regards the admission of a third-country national under this Directive, the applicant shall:(a) present a valid travel document, as determined by national law, and, if required, an application for a visa or a valid visa or, where applicable, a valid residence permit or a valid long-stay visa; Member States may require the period of validity of the travel document to cover at least the duration of the planned stay;(b) if the third-country national is a minor under the national law of the Member State concerned, present a parental authorisation or an equivalent document for the planned stay;(c) present evidence that the third-country national has or, if provided for in national law, has applied for sickness insurance for all risks normally covered for nationals of the Member State concerned; the insurance shall be valid for the duration of the planned stay;(d) provide evidence, if the Member State so requires, that the fee for handling the application provided for in Article 36 has been paid;(e) provide the evidence requested by the Member State concerned that during the planned stay the third-country national will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, and return travel costs. The assessment of the sufficient resources shall be based on an individual examination of the case and shall take into account resources that derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs.’
7Article 11 of that directive, headed ‘Specific conditions for students’, provides, in paragraph 1 thereof:‘In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of studies, the applicant shall provide evidence:(a) that the third-country national has been accepted by a higher education institution to follow a course of study;(b) if the Member State so requires, that the fees charged by the higher education institution have been paid;(c) if the Member State so requires, of sufficient knowledge of the language of the course to be followed;(d) if the Member State so requires, that the third-country national will have sufficient resources to cover the study costs.’
8Article 20 of that directive, entitled ‘Grounds for rejection’, provides as follows in paragraphs 1 and 2:1.Member States shall reject an application where:(a) the general conditions laid down in Article 7 or the relevant specific conditions laid down in Articles 8, 11, 12, 13, 14 or 16 are not met;(b) the documents presented have been fraudulently acquired, or falsified, or tampered with;(c) the Member State concerned only allows admission through an approved host entity and the host entity is not approved.2.Member States may reject an application where:…(f) the Member State has evidence or serious and objective grounds to establish that the third-country national would reside for purposes other than those for which he or she applies to be admitted.’
9Article 21 of Directive 2016/801, headed ‘Grounds for withdrawal or non-renewal of an authorisation’, provides, in paragraph 1 thereof:‘Member States shall withdraw or, where applicable, refuse to renew an authorisation where:…(d) the third-country national is residing for purposes other than those for which the third-country national was authorised to reside.’
10Under Article 24 of that directive, headed ‘Economic activities by students’:1. Outside their study time and subject to the rules and conditions applicable to the relevant activity in the Member State concerned, students shall be entitled to be employed and may be entitled to exercise self-employed economic activity, subject to the limitations provided for in paragraph 3.2. Where necessary, Member States shall grant students and/or employers prior authorisation in accordance with national law.3. Each Member State shall determine the maximum number of hours per week or days or months per year allowed for such an activity, which shall not be less than 15 hours per week, or the equivalent in days or months per year. The situation of the labour market in the Member State concerned may be taken into account.’
11Article 34 of that directive, headed ‘Procedural guarantees and transparency’, is worded as follows:1. The competent authorities of the Member State concerned shall adopt a decision on the application for an authorisation or a renewal of it and notify the decision to the applicant in writing, in accordance with the notification procedures under national law, as soon as possible but not later than 90 days from the date on which the complete application was submitted.2. By way of derogation from paragraph 1 of this Article, in the event that the admission procedure is related to an approved host entity as referred to in Articles 9 and 15, the decision on the complete application shall be taken as soon as possible but at the latest within 60 days.3. Where the information or documentation supplied in support of the application is incomplete, the competent authorities shall notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. The period referred to in paragraphs 1 or 2 shall be suspended until the competent authorities have received the additional information required. If additional information or documents have not been provided within the deadline, the application may be rejected.4. Reasons for a decision declaring inadmissible or rejecting an application or refusing renewal shall be given in writing to the applicant. Reasons for a decision withdrawing an authorisation shall be given in writing to the third-country national. Reasons for a decision withdrawing an authorisation may be given in writing also to the host entity.5. Any decision declaring inadmissible or rejecting an application, refusing renewal, or withdrawing an authorisation shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification shall specify the court or administrative authority with which an appeal may be lodged and the time limit for lodging the appeal.’
12Article 35 of Directive 2016/801, headed ‘Transparency and access to information’, states:‘Member States shall make easily accessible to applicants the information on all the documentary evidence needed for an application and information on entry and residence conditions, including the rights, obligations and procedural safeguards, of the third-country nationals falling under the scope of this Directive and, where applicable, of their family members. This shall include, where applicable, the level of the monthly sufficient resources, including the sufficient resources needed to cover the study costs or the training costs, without prejudice to an individual examination of each case, and the applicable fees.The competent authorities in each Member State shall publish lists of the host entities approved for the purposes of this Directive. Updated versions of such lists shall be published as soon as possible following any changes to them.’
13Article 40 of that directive, headed ‘Transposition’, provides:1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 23 May 2018 at the latest. They shall immediately communicate the text of those measures to the Commission.When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.’
Belgian law
14Under Article 58 of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals) (Moniteur belge of 31 December 1980, p. 14584), in the version applicable to the dispute in the main proceedings (‘the Law of 15 December 1980’):‘Where the application for authorisation to reside for more than three months in the Kingdom is submitted to a Belgian diplomatic or consular post by a foreign national who wishes to pursue higher education studies or undertake a year of preparation for higher education in Belgium, that authorisation must be granted if the person concerned is not in one of the situations provided for in subparagraphs 1 and 5 to 8 of Article 3 and if he or she produces the following documents:(1) a certificate issued by an education institution in accordance with Article 59;(2) evidence that he or she has sufficient means of subsistence;(3) a medical certificate showing that he or she does not suffer from one of the illnesses or disabilities listed in the annex to this Law;(4) a certificate establishing that he or she has not been convicted of ordinary-law crimes or offences, if the person concerned is over 21 years of age.…’
15Article 39/2(2) of that law states:‘The Conseil [du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium)] shall give a ruling, by way of judgment, on other actions for annulment on the ground of infringement of procedural requirements which are either essential or breach of which leads to nullity, or on the ground of abuse or misuse of powers.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
16On 6 August 2020, the appellant in the main proceedings, a third-country national, submitted, on the basis of Article 58 of the Law of 15 December 1980, an application for a visa in order to study in Belgium.
17Following the refusal to grant her a visa by decision of 18 September 2020, on the ground that it was apparent from inconsistencies in her study plan that she did not have any genuine intention of pursuing her studies in Belgium, the appellant in the main proceedings, on 28 September 2020, sought annulment of that decision before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings), which dismissed her application by judgment of 23 December 2020.
18The Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) observed in that judgment that, under Article 58 of the Law of 15 December 1980, an application for a residence permit is to be made by a third-country national who ‘wishes to pursue higher education studies or undertake a year of preparation for higher education in Belgium’. It inferred from this that that provision requires the competent authorities to verify the genuine wish of the applicant to study in Belgium.
19The Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) also took the view that it was possible to refuse to grant the visa applied for on the basis of Article 58 if the applicant’s intention was not to study, even if Article 20(2)(f) of Directive 2016/801 had not yet been transposed into Belgian law despite the expiry of the transposition period laid down in Article 40(1) of that directive, since the power to refuse a visa provided for in Article 20(2)(f) also derived from Article 58. It thus considered that the application of Article 58 was consistent with Article 20(2)(f).
20By application of 19 January 2021, the appellant in the main proceedings brought an appeal on a point of law against that judgment before the Conseil d’État (Council of State, Belgium), which is the referring court.
21In the context of that appeal, she submits, in the first place, that the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) was wrong to take the view that the application of Article 58 of the Law of 15 December 1980, in the circumstances at issue in the main proceedings, was consistent with Article 20(2)(f) of Directive 2016/801, although the latter provision had not been transposed into Belgian law and the national law does not specify the serious and objective grounds for establishing that a third-country national would reside for purposes other than those for which he or she applies to be admitted to Belgian territory.
22The appellant in the main proceedings also maintains that, in the light of the definition of the concept of ‘student’ set out in Article 3(3) of that directive, it is possible only to ensure that a third-country national who has applied for a visa for study purposes is accepted by a higher education institution, and not to verify that the applicant intends to study.
23The Belgian State contends, by contrast, that Article 58 recognises the competent authorities’ power to verify the intention of the applicant to study, in accordance with recital 41 of that directive, irrespective of the transposition of Article 20(2)(f), with the result that it is possible to require evidence in order to assess the consistency of the application for admission.
24The referring court takes the view that, since Article 20(2)(f) of Directive 2016/801 allows an application made on the basis of that directive to be rejected if it is established that the third-country national intends to stay for purposes other than those for which he or she applies to be admitted, Member States are necessarily entitled to verify that the third-country national’s wish is actually to pursue studies in the host Member State. However, it considers that it is appropriate to refer a question to the Court in that regard, in view of its doubts and the fact that it will rule at last instance.
25Furthermore, the referring court considers that it is also necessary to ask the Court of Justice in order to determine whether, as the applicant in the main proceedings submits, the application of Article 20(2)(f) of that directive requires, in order to justify the rejection of an application for residence, first, that the national legislation expressly provides that that application may be rejected where the host Member State has evidence or serious and objective grounds to establish that the third-country national intends to reside for purposes other than those for which he or she applies to be admitted and, second, that the national legislation specifies the evidence or serious and objective grounds used to find that that is the case.
26In the second place, the appellant in the main proceedings alleges that the review procedures implemented by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings), which merely consist in a review of legality, infringe the requirements under EU law. In that regard, the referring court notes that Article 34(5) of Directive 2016/801 requires Member States to provide that an action may be brought against decisions rejecting applications for residence and considers that the procedural rules governing that action must comply with the principles of equivalence and effectiveness.
27The referring court states that the remedy provided for under Belgian law, in Article 39/2(2) of the Law of 15 December 1980, is an action for annulment involving a review of legality that does not confer any power of variation on the court having jurisdiction, namely the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings), and consequently does not permit it to substitute its own assessment for that of the competent administrative authorities or to take a new decision in their place. However, in the event that such a decision is annulled, those authorities would be bound by the force of res judicata attaching to the operative part of the judgment and to the grounds constituting its essential basis.
28Since the appellant in the main proceedings claims that the lack of a power of the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) to vary decisions is contrary to the requirements arising from Article 34(5) of Directive 2016/801, the principle of effectiveness and Article 47 of the Charter, the referring court considers that it is necessary to refer a question to the Court in that regard.
29In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Having regard to Article 288 [TFEU], Articles 14 and 52 of the [Charter], Articles 3, 5, 7, 11, 20, 34, 35 and 40 of Directive [2016/801] and recitals 2 and 60 thereof, and to the principles of legal certainty and transparency, must the Member State’s power under Article 20(2)(f) of Directive [2016/801] to refuse an application for residence be expressly provided for in its legislation in order to be used by that State? If so, must the serious and objective grounds be specified in its legislation?(2) Does the examination of an application for a visa for studies require the Member State to verify the foreign national’s wish and intention to study, even though Article 3 of Directive [2016/801] defines a student as one accepted by a higher education institution and though the grounds for refusal of the application set out in Article [20(2)(f) of that directive] are optional, not binding like those set out in Article [20(1)] of [that] directive?(3) Do Article 47 of the [Charter], the principle of effectiveness and Article 34(5) of Directive [2016/801] require that the remedy provided for in national law against a decision rejecting an application for admission to the territory for study purposes allow the court to substitute its own assessment for that of the administrative authority and to review the decision of that authority, or is it sufficient to have a review of legality which allows the court to censure any illegality, particularly a manifest error of assessment, by setting aside the administrative authority’s decision?’
Consideration of the questions referred
The first and second questions
30As a preliminary point, it should be noted that it is apparent both from the request for a preliminary ruling and from the observations submitted to the Court that Article 20(2)(f) of Directive 2016/801, which provides that the Member State concerned may reject an application where it has evidence or serious and objective grounds to establish that the third-country national would reside for purposes other than those for which he or she applies to be admitted, was not expressly transposed into Belgian law until after the facts at issue in the main proceedings took place.
31However, the referring court states that, in the judgment of 23 December 2020 of the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings), the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) took the view that, even in the absence of transposition of that provision, the competent authorities are entitled, in accordance with EU law, to reject a visa application in order to study in Belgium, where the applicant’s genuine intention is not to study.
32Furthermore, at the hearing before the Court, while confirming that Article 20(2)(f) of that directive had not yet been expressly transposed into national law during the period relevant to the dispute in the main proceedings, the Belgian Government stated, further to its written observations, in which it maintains that the competent authorities have the option, irrespective of the transposition of that provision, of verifying the intention of the third-country national who has applied for a visa to pursue studies, that the dispute at issue in the main proceedings concerns not such a transposition but the concept of a ‘student’, as defined in Article 3(3) of that directive.
33In those circumstances, it must be held that, by its first two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 2016/801, in particular having regard to Article 3(3) thereof, must be interpreted as precluding a Member State, when it has not transposed Article 20(2)(f) of that directive, from rejecting an application for admission to its territory for study purposes on the ground that the third-country national has submitted that application without having a genuine intention of studying in the territory of that Member State.
34Under Article 5(3) of that directive, a third-country national who has made such an application is entitled to an authorisation to reside in the territory of the Member State concerned if he or she satisfies the general conditions laid down in Article 7 of Directive 2016/801 and the relevant specific conditions depending on the type of application submitted, in this case those laid down in Article 11 of that directive for applications for admission for the purposes of studies.
35It follows that, pursuant to Article 5(3) of that directive, Member States are required to issue a residence permit for study purposes to an applicant who has satisfied the requirements set out in Articles 7 and 11 of that directive (see, by analogy, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 31).
36None of those requirements expressly refers to the existence of a genuine intention to study in the territory of the Member State concerned.
37That said, according to a general principle of EU law, EU law cannot be relied on for abusive or fraudulent ends (see, to that effect, judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 96 and the case-law cited).
38It thus follows that a Member State must refuse to grant the benefit of the provisions of EU law where they are relied upon not with a view to achieving the objectives of those provisions but with the aim of benefiting from an advantage in EU law although the conditions for benefiting from that advantage are fulfilled only formally (judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 98).
39The general principle that abusive practices are prohibited must, consequently, be relied on against a person where that person invokes certain rules of EU law providing for an advantage in a manner which is not consistent with the objectives of those rules (see, to that effect, judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 102).
40It must further be stated that, in so far as abusive or fraudulent acts cannot found a right provided for by EU law, the refusal of an advantage under a directive, in this instance Directive 2016/801, does not amount to imposing an obligation on the individual concerned under that directive, but is merely the consequence of the finding that the objective conditions required for obtaining the advantage sought, prescribed by the directive as regards that right, are met only formally (see, by analogy, judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 119 and the case-law cited).
41Thus, although Article 20(2)(f) of Directive 2016/801 provides that the Member State concerned may reject an application for admission to the territory made on the basis of that directive where it has evidence or serious and objective grounds to establish that the third-country national would be staying for purposes other than those for which he or she is seeking admission, that provision cannot be interpreted as excluding the application of the principle of EU law that abusive practices are prohibited, since the application of that principle is not – as the provisions of a directive are – subject to a requirement of transposition (see, by analogy, judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 105 and the case-law cited).
42Recital 41 of Directive 2016/801 states, moreover, that, in case of doubts concerning the grounds for the application for admission, Member States should be able to carry out appropriate checks or require evidence inter alia in order to fights against abuse and misuse of the procedure set out in that directive.
43It follows from the foregoing that it is for the national authorities and courts to refuse the benefit of the rights provided for by that directive where those rights are relied on for fraudulent or abusive ends, even if the Member State concerned has not transposed Article 20(2)(f).
44In that regard, it follows from settled case-law that proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgment of 14 January 2021, The International Protection Appeals Tribunal and Others, C‑322/19 and C‑385/19, EU:C:2021:11, paragraph 91 and the case-law cited).
45In the present case, as regards the objective pursued by Directive 2016/801, recitals 3 and 14 of that directive state, first, that immigration from outside the European Union is one source of highly skilled people, and students and researchers are, in particular, increasingly sought after, and, second, that, in order to promote Europe as a whole as a world centre of excellence for studies and training, that directive seeks to improve and simplify the conditions for entry and residence of those who wish to come to the European Union for these purposes.
46To that effect, that directive seeks, in particular, as is apparent from Article 3(3) and Article 11(1)(a) thereof, to authorise third-country nationals to reside in the territory of a Member State where they have been accepted by a higher education institution of the Member State concerned in order to pursue as a main activity a full-time course of study leading to a higher education qualification recognised by that Member State.
47Therefore, where an application for admission for study purposes is at issue, the finding of an abusive practice requires it to be established, in the light of all the specific circumstances of the individual case, that, notwithstanding formal compliance with the general and specific conditions laid down in Articles 7 and 11 of Directive 2016/801 respectively, which confer entitlement to a residence permit for study purposes, the third-country national concerned submitted his or her application for admission without having a genuine intention to pursue, as a main activity, a full-time course of study leading to a higher education qualification recognised by that Member State.
48As regards the circumstances which make it possible to establish that an application for admission is abusive, it must be pointed out that, in so far as, on the date of submission of the application for a residence permit, the third-country national has, by definition, not yet begun the course of study identified in that application and, consequently, cannot have had the opportunity to give concrete expression to his or her intention to pursue as a main activity a full-time course of study leading to a higher education qualification recognised by that Member State, an application for admission can be rejected only if that abuse is sufficiently apparent from all the relevant information available to the competent authorities in order to assess that application.
49In the context of Article 267 TFEU, the Court has no jurisdiction to assess the facts and apply the rules of EU law to a particular case. It is, therefore, for the referring court to carry out the legal classifications necessary for the resolution of the dispute in the main proceedings. By contrast, it is for the Court to provide the referring court with all necessary information with a view to offering guidance in that determination (judgment of 19 October 2023, Lufthansa CityLine, C‑660/20, EU:C:2023:789, paragraph 55 and the case-law cited).
50In that regard, it may be noted, first, that it is apparent from Article 24 of Directive 2016/801 that that directive does not preclude third-country nationals who have applied for authorisation to reside for study purposes from being entitled, outside their study time and subject to compliance with the conditions laid down in that provision, to be employed or to exercise a self-employed economic activity in that Member State. Therefore, the fact that the third-country national who has submitted the application for admission for study purposes also intends to pursue another activity in the territory of the Member State concerned, in particular if that activity does not affect the pursuit of studies, as a main activity, justifying that application, cannot necessarily be regarded as indicative of an abusive practice.
51By contrast, where the applicant has undertaken to exercise an activity, in particular an activity of a professional nature, the completion of which appears manifestly incompatible with the pursuit as a main activity of a full-time course of study leading to a higher education qualification recognised by that Member State, that commitment may constitute a factor of such a kind as to give rise to doubt as to the real reasons for the application for admission and, as the case may be, in the light of all the relevant circumstances of the case, reason to believe that the third-country national intends to reside for purposes other than those for which he or she applies to be admitted.
52Second, as has been recalled in paragraph 42 of the present judgment, recital 41 of Directive 2016/801 states that, in case of doubts concerning the grounds of the application for admission, Member States should be able to carry out appropriate checks or require evidence in order to assess, on a case-by-case basis, inter alia, the studies which the third-country national intends to pursue.
53Inconsistencies in the applicant’s planned studies may therefore also constitute one of the objective circumstances contributing to the finding of an abusive practice, on the ground that the applicant’s application is, in fact, aimed at purposes other than the pursuit of studies, provided that those inconsistencies are sufficiently apparent and that they are assessed in the light of all the specific circumstances of the particular case. Thus, a circumstance which may be regarded as ordinary in the course of higher education, such as a change of direction, is not in itself sufficient to establish that a third-country national who has submitted an application for admission for study purposes has no genuine intention of studying in the territory of that Member State. Similarly, the mere fact that the studies envisaged are not directly linked to the professional objectives pursued does not necessarily indicate a lack of intention actually to pursue the studies on which the application for admission is based.
54That said, it must be pointed out that, since the circumstances based on which it may be concluded that an application for admission for study purposes is abusive are necessarily specific to each individual case, as has been noted in paragraph 47 of the present judgment, an exhaustive list of the relevant factors in that regard cannot be established. Accordingly, the potentially abusive nature of an application for admission for the purposes of studies cannot be presumed in the light of certain factors, but must be assessed on a case-by-case basis, following an individual assessment of all the circumstances specific to each application.
55In that regard, including in the circumstances referred to in paragraphs 50 to 53 of the present judgment, it is for the competent authorities to carry out all appropriate checks and to request the evidence in order to carry out an individual assessment of that application, if necessary by requesting the applicant to provide further details and explanations in that regard.
56In that context, it must also be stated, first, that, although the relevant grounds for refusal must be linked to the specific circumstances of the application concerned, that does not, however, have the effect of exempting the competent authorities from the obligation to communicate those grounds in writing to the applicant, as provided for in Article 34(1) and (4) of Directive 2016/801.
57Second, the foregoing considerations are without prejudice to the possibility for Member States to identify and penalise, by withdrawing or refusing to renew an authorisation, any abusive practice after residence has been authorised, as provided for in Article 21 of that directive.
58In the light of all the foregoing considerations, the answer to the first two questions is that Directive 2016/801, in particular having regard to Article 3(3) thereof, must be interpreted as not precluding a Member State, where it has not transposed Article 20(2)(f) of that directive, from refusing an application for admission to its territory for study purposes on the ground that the third-country national has made that application without having a genuine intention of studying on the territory of that Member State, in accordance with the general principle of EU law prohibiting abusive practices.
The third question
59By its third question, the referring court asks, in essence, whether Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, must be interpreted as precluding an action against a decision taken by the competent authorities rejecting an application for admission to the territory of a Member State for study purposes from consisting solely in an action for annulment, without the court hearing that action having the power, where appropriate, to substitute its own assessment for that of the competent authorities or to adopt a new decision.
60Under Article 34(5) of that directive, any decision declaring inadmissible or rejecting an application, refusing renewal or withdrawing an authorisation is to be open to legal challenge in the Member State concerned, in accordance with national law.
61It follows that, in the event of a decision rejecting an application for admission to the territory of a Member State for study purposes, Article 34(5) expressly enables a third-country national who has submitted such an application to bring an appeal in accordance with the national law of the Member State which took that decision (see, by analogy, judgment of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N., C‑949/19, EU:C:2021:186, paragraph 41).
62In that regard, it should be recalled that the characteristics of the appeal procedure envisaged in Article 34(5) of Directive 2016/801 must be determined in a manner that is consistent with Article 47 of the Charter (judgment of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N., C‑949/19, EU:C:2021:186, paragraph 44).
63The right to an effective remedy, enshrined in Article 47 of the Charter, would be illusory if the legal order of a Member State allowed a final, binding judicial decision to remain ineffective to the detriment of one party (see, to that effect, judgment of 19 December 2019, Deutsche Umwelthilfe, C‑752/18, EU:C:2019:1114, paragraphs 35 and 36). That is particularly true where obtaining the actual benefit of the rights deriving from EU law, as recognised by a judicial decision, requires compliance with time constraints.
64Thus, where a national administrative decision is at issue, which, in order to ensure observance of the actual benefit of the rights of the person concerned under EU law, must be adopted quickly, it is apparent from the need, arising from Article 47 of the Charter, to ensure that the action brought against the initial administrative decision rejecting that application is effective that each Member State must order its national law in such a way that, in the event of its annulment, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling that decision (see, by analogy, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 59 and the case-law cited).
65It follows that, as regards applications for admission to the territory of a Member State for the purposes of studies, the fact that the court seised has jurisdiction only to rule on the annulment of the decision of the competent authorities rejecting such an application, without being able to substitute its own assessment for that of those authorities or adopt a new decision, is sufficient, in principle, to satisfy the requirements of Article 47 of the Charter, provided that, as the case may be, those authorities are bound by the assessment contained in the judgment annulling that decision.
66Furthermore, although, in such an action, the court seised has only a power to annul the decision of the competent authorities rejecting such an application for admission, it must be ensured that the conditions under which that action is brought and, where appropriate, the judgment adopted at the end of that action are such that they allow, in principle, a new decision to be adopted within a short period of time, in such a way that a sufficiently diligent third-country national can benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801.
67In the light of all the foregoing considerations, the answer to the third question is that Article 34(5) of that directive, read in the light of Article 47 of the Charter, must be interpreted as not precluding an action against a decision taken by the competent authorities rejecting an application for admission to the territory of a Member State for study purposes from consisting exclusively of an action for annulment, without the court hearing that action having the power to substitute, where appropriate, its own assessment for that of the competent authorities or to adopt a new decision, provided that the conditions under which that action is brought and, where appropriate, the judgment adopted at the end of that action, are such as to enable a new decision to be adopted within a short period of time, in line with the assessment contained in the judgment annulling the decision, in such a way that a sufficiently diligent third-country national is able to benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801.
Costs
68Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fifth Chamber) hereby rules:
1.Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing, in particular having regard to Article 3(3) of that directive,must be interpreted as not precluding a Member State, where it has not transposed Article 20(2)(f) of that directive, from refusing an application for admission to its territory for study purposes on the ground that the third-country national has made that application without having a genuine intention of studying on the territory of that Member State, in accordance with the general principle of EU law prohibiting abusive practices.
2.Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,must be interpreted as not precluding an action against a decision taken by the competent authorities rejecting an application for admission to the territory of a Member State for study purposes from consisting exclusively of an action for annulment, without the court hearing that action having the power to substitute, where appropriate, its own assessment for that of the competent authorities or to adopt a new decision, provided that the conditions under which that action is brought and, where appropriate, the judgment adopted at the end of that action, are such as to enable a new decision to be adopted within a short period of time, in line with the assessment contained in the judgment annulling the decision, in such a way that a sufficiently diligent third-country national is able to benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801.
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