Request for a preliminary ruling from the Tribunal de première instance francophone de Bruxelles (Belgium) lodged on 11 May 2023 – Ordre des barreaux francophones et germanophones de Belgique and Others v État belge
(Case C-299/23, Darvate and Others 1 )
Language of the case: French
Referring court
Tribunal de première instance francophone de Bruxelles
Parties to the main proceedings
Applicants: Ordre des barreaux francophones et germanophones de Belgique, Coordination et Initiatives pour et avec les Réfugiés et Étrangers ASBL, NX
Defendant: État Belge
Questions referred
Does Article 34 of Directive 2016/801/EU 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, alone or in conjunction with Articles 7, 14 and 47 of the Charter of Fundamental Rights and the principle of effectiveness, and in the light of the objective pursued by that directive to strengthen the procedural guarantees available to third-country nationals and to encourage foreign students to come to the European Union, require:
1. that a foreign student have the option of bringing an exceptional appeal, in conditions of extreme urgency, where he or she demonstrates that he or she has exercised all due diligence and that compliance with the time limits imposed in order to conduct an ordinary procedure (for suspension/annulment) could hamper the pursuit of the studies in question?
If the answer to that question is in the negative, must the same negative answer be given where failure to adopt a decision in a short period of time risks causing the person concerned irretrievably to lose a year of study?
2. that a foreign student have the option of bringing an exceptional appeal, in conditions of extreme urgency, where he or she demonstrates that he or she has exercised all due diligence and that compliance with the time limits imposed in order to conduct an ordinary procedure (for suspension/annulment) could hamper the pursuit of the studies in question, in the context of which, concomitantly with the suspension, he or she may request that other interim measures be ordered to ensure the effectiveness of the right to obtain authorisation if he or she fulfils the general and specific conditions, as guaranteed in Article 5(3) of Directive 2016/80/EU?
If the answer to that question is in the negative, must the same negative answer be given where failure to adopt a decision in a short period of time risks causing the person concerned irretrievably to lose a year of study?
3. that the remedy in the form of an appeal against the decision refusing to grant the visa 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?
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1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings