Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 16 November 2023 (1)

Case C‑14/23 (Perle) (i) 

XXX

v

État belge, represented by the secrétaire d’État à l’Asile et la Migration

(Request for a preliminary ruling from the Conseil d’État (Council of State, Belgium))

(Reference for a preliminary ruling – Immigration policy – Directive (EU) 2016/801 – Conditions of entry and residence of third-country nationals for the purpose of studies – Article 20(2)(f) – Optional ground for rejection of the application for admission – Application pursuing other purposes – Methods of assessment – Account taken of the applicant’s intention to pursue studies – Failure to transpose – Article 34(5) – Procedural guarantees – Procedural autonomy of the Member States – Charter of Fundamental Rights of the European Union – Article 47 – Right to an effective remedy – Principles of equivalence and effectiveness – Scope of the powers of the administrative or judicial authority with which an appeal is lodged – No power to vary)

I.      Introduction

1.        This request for a preliminary ruling affords the Court the opportunity to clarify the conditions for admission of third-country nationals wishing to pursue their studies at a higher education institution in a Member State as well as the procedural guarantees enjoyed by those nationals under Directive (EU) 2016/801. (2)

2.        The request has been made in proceedings between a Cameroonian national and the État belge (Belgian State), represented by the secrétaire d’État à l’Asile et la Migration (State Secretary for Asylum and Migration, Belgium) concerning the legality of the latter’s refusal to grant the former the visa requested on the ground that it was not her wish to study in Belgium. While Article 20(2)(f) of Directive 2016/801 does afford Member States the option to reject such an application where there is evidence or grounds establishing that the third-country national would reside for purposes other than those for which he or she applies to be admitted, the Belgian legislation applicable to the dispute in the main proceedings did not provide expressly for such a ground for refusal.

3.        In the judgment of 10 September 2014, Ben Alaya, (3) concerning the interpretation of Directive 2004/114/EC, (4) the Court had found that Member States were free to require all the evidence necessary to assess the coherence of the application made by the third-country national, in order to fight against abuse and misuse of the procedure set out in that directive. (5) That interpretation was based on an examination both of the wording of Articles 6 and 7 of that directive, which concern the general and specific conditions for admission of a third-country national for the purpose of studies, and of the directive’s general scheme and purpose.

4.        The present case was brought after Directive 2004/114 had been repealed and replaced by Directive 2016/801, the purpose of which is to improve and simplify those conditions, to ensure that the admission procedure is carried out expeditiously and to strengthen the procedural rights of third-country nationals.

5.        The Conseil d’État (Council of State, Belgium) asks the Court about three aspects of the admission procedure for the purpose of studies.

6.        In the first place, it asks the Court to clarify the circumstances in which a Member State may reject an application for a residence permit or a visa for the purpose of studies (‘a “student” residence permit or visa’) because the third-country national’s residence in the national territory would in fact pursue a different purpose. The Court is therefore called upon to interpret Article 20(2)(f) of Directive 2016/801 and to examine, inter alia, the strategies which Member States may adopt, during the period prior to the entry of such a national into the national territory, to combat the risks of misuse of a ‘student’ residence permit or visa. According to the study conducted by the European Migration Network (EMN) in March 2022, twelve Member States, including the Kingdom of Belgium, had adopted such strategies. (6)

7.        In this Opinion, I will set out the reasons why I take the view that a competent authority of a Member State can reject an application for a ‘student’ residence permit or visa only where it has evidence or serious and objective grounds establishing that the residence of the third-country national in the national territory would have neither the object nor the essential purpose of pursuing, as a main activity, a full-time course of study leading to a higher education qualification recognised by that Member State.

8.        In the second place, the Conseil d’État (Council of State) asks the Court about the procedure for transposition into national law of Article 20(2)(f) of Directive 2016/801, which is an optional provision. (7)

9.        In that regard, I will explain that the principles of legal certainty and transparency require that a Member State intending to transpose that provision into its national legal order expressly provides, within a clear, precise and foreseeable legal framework, that it has the power to reject an application for a ‘student’ residence permit or visa on the ground that it has evidence or serious and objective grounds establishing that the third-country national concerned would reside for purposes other than those for which he or she applies to be admitted.

10.      In the third and final place, the Conseil d’État (Council of State) asks the Court about the procedural arrangements for appealing against a decision rejecting an application for a ‘student’ residence permit or visa, as provided for in Article 34(5) of Directive 2016/801, and, in particular, the scope of the powers which must conferred to that end on the administrative or judicial authority with which that appeal is lodged.

11.      On that point, I will set out the reasons why I consider that that provision, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, (8) must be interpreted as meaning that it does not preclude a Member State from conferring a power to set aside decisions on the administrative or judicial authority with which an appeal against a decision rejecting an application for a ‘student’ residence permit or visa is lodged, to the exclusion of a power to vary, provided that the new decision is given by the competent authority before the start of the academic year of the higher education institution at which the third-country national is lawfully enrolled.

II.    Legal context

A.      European Union law

12.      Recitals 41 and 60 of Directive 2016/801 state:

‘(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 … studies [or] training … and fight against abuse or 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.’

13.      Article 3(3) and (21) of that directive 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;

…

(21)      “authorisation” means a residence permit or, if provided for in national law, a long-stay visa issued for the purposes of this Directive’.

14.      Chapter II of that directive, entitled ‘Admission’, contains Articles 5 to 16. Article 5 of that directive, entitled ‘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 [European] 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.’

15.      Article 7 of Directive 2016/801, entitled ‘General conditions’, provides:

‘1.      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.

2.      Member States may require the applicant to provide the address of the third-country national concerned in their territory.

…

3.      Member States may indicate a reference amount which they regard as constituting “sufficient resources” as referred to under point (e) of paragraph (1). The assessment of the sufficient resources shall be based on an individual examination of the case.

4.      The application shall be submitted and examined either when the third-country national concerned is residing outside the territory of the Member State to which the third-country national wishes to be admitted or when the third-country national is already residing in that Member State as holder of a valid residence permit or long-stay visa.

By way of derogation, a Member State may accept, in accordance with its national law, an application submitted when the third-country national concerned is not in possession of a valid residence permit or long-stay visa but is legally present in its territory.

5.      Member States shall determine whether applications are to be submitted by the third-country national, by the host entity, or by either of the two.

6.      Third-country nationals who are considered to pose a threat to public policy, public security or public health shall not be admitted.’

16.      Article 11 of that directive lays down, as its heading states, ‘specific conditions for students’. It provides:

‘1.      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, 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.

2.      Third-country nationals who automatically qualify for sickness insurance for all risks normally covered for the nationals of the Member State concerned as a result of enrolment at a higher education institution shall be presumed to meet the condition laid down in point (c) of Article 7(1).

3.      A Member State which has established an approval procedure for higher education institutions in accordance with Article 15 shall exempt applicants from presenting one or more of the documents or evidence referred to in points (b), (c) or (d) of paragraph 1 of this Article or in point (d) of Article 7(1) or in Article 7(2), where the third-country nationals are to be hosted by approved higher education institutions.’

17.      Article 20, which concerns the ‘grounds for rejection of an application’ and is contained in Chapter IV of that directive, entitled ‘Grounds for rejection, withdrawal or non-renewal of authorisations’, reads as follows:

‘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;

…

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.

…

4.      Without prejudice to paragraph 1, any decision to reject an application shall take account of the specific circumstances of the case and respect the principle of proportionality.’

18.      Chapter IV of Directive 2016/801 also includes Article 21 which, in accordance with its heading, lays down the ‘grounds for withdrawal or non-renewal of an authorisation’.

19.      Articles 33 to 36 are found in Chapter VII of Directive 2016/801, entitled ‘Procedure and transparency’. Article 34 of that directive, which concerns ‘procedural guarantees and transparency’, provides:

‘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.’

20.      Article 35 of the directive, entitled ‘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.’

21.      Article 40, which concerns ‘transposition’ and appears in Chapter VIII of Directive 2016/801, entitled ‘Final provisions’, 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 [European] 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.’

B.      Belgian law

22.      Article 3 of the loi sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers, du 15 décembre 1980 (Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals) (9) provided:

‘Save as otherwise provided by an international treaty or by law, a foreign national may be refused entry in any of the following cases:

(1)      if he or she is apprehended in the airport transit zone without holding the documents required under Article 2;

…

(5)      if an alert has been issued in his or her regard for the purposes of refusing entry or residence in the [Schengen Information System (10)] or in the Banque de données Nationale Générale (General National Database);

(6)      if he or she is deemed capable of jeopardising Belgium’s international relations or those of a State party to an international convention on the crossing of the external borders, by which Belgium is bound;

(7)      if he or she is deemed capable of jeopardising the public peace, public order or national security;

(8)      if he or she has been returned or expelled from the Kingdom less than ten years ago, where the order has not been suspended or rescinded.’

23.      Article 39/2(2) of that law stated:

‘The Conseil [du contentieux des étrangers (Belgium) (Council for asylum and immigration proceedings; “the CCE”)] (11) 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.’

24.      Article 58 of the Law of 15 December 1980 provided:

‘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 [points] 5 to 8 of the first paragraph of Article 1 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 common-law crimes or offences, if the person concerned is over 21 years of age.

If the certificates provided for in [point 3] and in [point 4] of the first paragraph are not produced, the Minister [with responsibility for the access to the territory, residence, establishment and removal of foreign nationals (12)] or his or her delegate may, however, taking into account the circumstances, authorise the foreign national to reside in Belgium in order to undertake studies there.

The authorisation to reside for more than three months in the Kingdom may be applied for by the foreign national according to the detailed rules laid down by the King pursuant to the second paragraph of Article 9.’

25.      The loi du 11 juillet 2021 modifiant la loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers en ce qui concern les étudiants (Law of 11 July 2021 amending the Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals in relation to students) (13) transposed Directive 2016/801 in part, after the date of expiry of the deadline for transposition of that directive laid down in Article 40 of that directive.

III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

26.      On 6 August 2020, the appellant in the main proceedings, a Cameroonian national, submitted an application for a ‘student’ visa to the Belgian embassy in Yaoundé (Cameroon) on the basis of Article 58 of the Law of 15 December 1980.

27.      Following the refusal to grant her a visa by decision of 18 September 2020, on 28 September 2020 the appellant in the main proceedings sought to have that decision annulled by the CCE, which dismissed her application by judgment of 23 December 2020.

28.      In that regard, the CCE decided, in essence, that Article 58 of the Law of 15 December 1980 requires the Kingdom of Belgium to verify the wish of the appellant in the main proceedings to study in Belgium. Furthermore, it considered that the Kingdom of Belgium could refuse the visa applied for on the basis of Article 58 of that law, even though Article 20(2)(f) of Directive 2016/801 had not been transposed, since that Article 58 also provided for the power to reject such a visa application. According to the CCE, Article 58 of the Law of 15 December 1980 requires the Kingdom of Belgium to verify that the wish to study in Belgium is genuine and thus entitles it to reject the application if it is established that the third-country national does not genuinely intend to undertake studies.

29.      By application of 19 June 2021, the appellant in the main proceedings brought an application in cassation before the Conseil d’État (Council of State).

30.      She claims, firstly, that the CCE could not rightly decide that the application of Article 58 of the Law of 15 December 1980 was consistent with Article 20(2)(f) of Directive 2016/801, given that the latter provision had not been transposed into Belgian law and that, contrary to the obligations of transparency and legal certainty, Belgian law did not specify the serious and objective grounds for establishing that she would reside for purposes other than those for which she applied to be admitted.

31.      Moreover, whereas the Belgian State contends, in defence, that that directive, in particular recital 41 thereof, allows the competent authorities to verify the genuineness of the foreign national’s planned studies and his or her intention to study, such that Member States may require the evidence necessary to assesses the coherence of the application for admission, the appellant in the main proceedings considers that the definition of the term ‘student’ in Article 3(3) of that directive only allows checks to be made that the applicant has been accepted by a higher education institution, and not to verify that it is his or her wish to study.

32.      The Belgian State contends that Article 58 of the Law of 15 December 1980, which provides that an authorisation to reside is to be granted to a foreign national who wishes to study in Belgium, ensures the transposition of Article 20(2)(f) of Directive 2016/801, which is contested by the appellant in the main proceedings.

33.      The referring court therefore asks whether that reference to an ‘intention to study’ is sufficient for the purpose of transposing Article 20(2)(f) of that directive, and whether a proper reading of that directive satisfies the obligations of transparency and legal certainty. It observes, furthermore, that the definition, or the listing, of the evidence or serious and objective grounds for establishing that the third-country national would reside for purposes other than those for which he or she applies to be admitted are not included in Article 58 of the Law of 15 December 1980 and therefore asks whether it should be expressly provided for in the national transposing measures.

34.      The referring court is of the view that that argument raised by the appellant in the main proceedings is unfounded, since Article 20(2)(f) of Directive 2016/801 allows an application to be rejected if it is established that the third-country national would reside for purposes other than those for which he or she applies to be admitted. This means that the Member States are necessarily entitled to verify that the applicant does indeed intend to reside for the purpose justifying his or her application. Nevertheless, it considers that a question should be put to the Court in this regard.

35.      Furthermore, that court asks whether the correct application of Article 20(2)(f) of that directive, in compliance with the principles of transparency and legal certainty, requires, first, that national law expressly provides that that application may be rejected where the Member State has evidence or serious and objective grounds for establishing that the third-country national would reside for purposes other than those for which he or she applies to be admitted and, second, that national law specifies what that evidence or those serious and objective grounds are, on the basis of which it can be established that the third-country national would reside for purposes other than those for which he or she applies to be admitted.

36.      Secondly, the appellant in the main proceedings alleges that the review procedures implemented by the CCE infringe the requirements under EU law. Pursuant to Article 39/2(2) of the Law of 15 December 1980, that review is a review of legality, so that, while the CCE may censure an unlawful act, it does not have a power of variation. However, if the contested decision were set aside, the respondent 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.

37.      Accordingly, the referring court considers that questions should be put to the Court with a view to ascertaining whether, as the appellant in the main proceedings claims, Article 39/2(2) of the Law of 15 December 1980 satisfies the requirements arising from Article 34(5) of Directive 2016/801, the principle of effectiveness and Article 47 of the Charter.

38.      In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court 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?’

39.      Written observations have been submitted by the appellant in the main proceedings, the Belgian Government and the Commission. Those parties took part in the hearing held on 11 October 2023, in the course of which the Czech, Lithuanian, Luxembourg, Hungarian and Netherlands Governments also presented oral argument. (14)

IV.    Analysis

40.      I propose that the Court begin by examining the second question referred for a preliminary ruling concerning the circumstances in which a Member State can reject an application for a ‘student’ residence permit or visa on the ground set out in Article 20(2)(f) of Directive 2016/801. Next, I will consider the procedure for transposition of that provision into domestic law, which is the focus of the first question referred for a preliminary ruling by the referring court. Thirdly and finally, I will examine the procedural arrangements for appealing a decision rejecting an application for a ‘student’ residence permit or visa, as provided for in Article 34(5) of that directive, which form the subject of the third question referred for a preliminary ruling.

A.      The scope of the power afforded to a Member State to reject an application for a ‘student’ residence permit or visa on the ground provided for in Article 20(2)(f) of Directive 2016/801 (second question referred for a preliminary ruling)

41.      By its second question, the referring court essentially asks the Court whether, for the purpose of examining an application for a ‘student’ residence permit or visa made on the basis of Directive 2016/801, the competent authority is required to verify the wish and intention of the third-country national to pursue studies and, if so, the circumstances in which it must undertake that examination.

42.      The referring court does not refer expressly to the examination required under Article 20(2)(f) of that directive, but more generally to ‘[the] examination of the application for a visa for studies’. However, for the reasons which I will set out, that provision alone requires the competent authority to verify the intention of the third-country national to pursue his or her studies in the territory of the host Member State for the purpose of assessing such an application.

43.      It follows from Article 5 of Directive 2016/801, read in conjunction with recital 30 thereof, that a third-country national is entitled to a ‘student’ residence permit or visa if the competent authority establishes that the application satisfies the general and specific conditions set out respectively in Articles 7 and 11 of that directive. (15)

44.      None of those conditions, whether general or specific, requires that the competent authority verify, strictly speaking, the intention and wish of the third-country national to pursue studies. Acceptance by a higher education institution to follow a course of study, (16) payment of the related fees or even sufficient knowledge of the language of the course of studies are objective criteria on the basis of which the applicant’s intention to study can usually be established. However, those material findings cannot rule out situations in which the competent authority may be misled, intentionally or unintentionally, as to the purpose of the third-country national’s stay.

45.      Recital 36 of Directive 2016/801 thus states that ‘it should be possible [for the Member States] to refuse admission … on duly justified grounds’. As the Commission pointed out at the hearing, an exhaustive list of those grounds is provided in Article 20 of that directive and Member States cannot add others to it.

46.      Article 20(1) of Directive 2016/801 lays down the grounds on which a Member State must reject an application for admission. These are mandatory grounds. By contrast, Article 20(2) of that directive lays down the grounds on which a Member State may reject such an application. As the EU legislature’s use of the verb ‘may’ demonstrates, those grounds are optional for the Member State.

47.      However, amongst all those grounds, only the ground for rejection contained in Article 20(2)(f) of that directive concerns, strictly speaking, the purpose of the applicant’s residence. (17)

48.      Therefore, it is now necessary to determine to what extent the competent authority of a Member State to which an application for a ‘student’ residence permit or visa has been made is required to verify the intention of the third-country national to pursue studies. With that in mind, I will begin my examination with a textual analysis of Article 20(2)(f) of Directive 2016/801, before considering the context and the objectives pursued by the legislation of which that provision forms part.

1.      Textual analysis of Article 20(2)(f) of Directive 2016/801

49.      Article 20(2)(f) of Directive 2016/801 confers on the competent authority of a Member State the power to reject an application for admission because 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’.

50.      In the first place, that provision must be interpreted narrowly. It allows the competent authority to reject an application for a ‘student’ residence permit or visa and thus to refuse a third-country national entry into and residence in the territory of the host Member State for the purpose of studies, even though it is established that that application is not vitiated by any of the defects set out in Article 20(1) of Directive 2016/801, that is to say, that it satisfies all the conditions of eligibility required in Articles 7 and 11 of that directive, that the documents and information upon which the application is based are authentic and accurate and, where appropriate, that the host entity is approved.

51.      Article 20(2)(f) of Directive 2016/801 must be interpreted strictly especially since the ground for rejection of the application for admission laid down in that provision is also a ground for withdrawal or non-renewal of an authorisation granted to a student, in accordance with Article 21(1)(d) of that directive, as well as a ground for rejection of an application for mobility made by that student to a second Member State pursuant to Article 31(7)(b) of that directive. In those circumstances, such a ground may have even more serious consequences, not just for the applicant but also for his or her family members. (18)

52.      In the second place, it is apparent from the wording of Article 20(2)(f) of Directive 2016/801 that that provision concerns the situation in which the residence permit or the visa would have ‘purposes other’ than those for which it is applied. The EU legislature makes the purpose of the stay an essential condition, which is consistent having regard to the ‘specific nature of the stay of each category of third-country nationals’ covered by that directive. (19)

53.      In the case of a ‘student’ residence permit or visa, the purpose of the stay stems from the definition of the term ‘student’, set out in Article 3(3) of Directive 2016/801, under which a 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’. (20)

54.      Accordingly, contrary to what the appellant in the main proceedings claims, a third-country national who has been accepted by a higher education institution but whose application for admission is still being examined by the competent authority does not have the status of ‘student’ within the meaning of Article 3(3) of that directive.

55.      Indeed, it follows from that definition, in particular from the use of the coordinating conjunction ‘and’, that the status of ‘student’ requires satisfaction of two cumulative conditions, namely, first, that the third-country national is accepted by a higher education institution and, second, that he or she is admitted to the territory of the host Member State, in order to pursue his or her studies, as a main activity and on a full-time basis, at the higher education institution at which he or she is lawfully enrolled. As the Belgian Government observed at the hearing, that purpose is also expressed in Article 11(1)(a) of Directive 2016/801, which requires that that national has been accepted by a higher education institution ‘to follow a course of study’. In view of that definition, it would seem to me that the competent authority may therefore reject an application for a ‘student’ residence permit or visa on the basis of Article 20(2)(f) of that directive where it establishes that the third-country national’s stay would pursue another purpose.

56.      Such a situation may arise as a result of an unintentional error. This may be the case where the competent authority finds that the third-country national intends to carry on an economic activity in circumstances which would not facilitate his or her ‘study time’ – to reproduce the wording of Article 24 of that directive (21) – thus depriving his or her stay of its object and its essential purpose.

57.      Such a situation may likewise stem from a deliberate attempt to misuse the procedure. In that case, the competent authority is misled as to the genuine purpose of the stay by the abusive or fraudulent intent of the host entity or the third-country national. (22) The latter could thus apply for a ‘student’ residence permit or visa with the sole purpose of abusing facilities created by EU law in favour of foreign students, benefiting from the rights and advantages attached to the status of student, (23) circumventing the conditions of entry and residence which would otherwise apply to him or her, or even remaining in the Member State. It is therefore the object of Article 20(2)(f) of Directive 2016/801 to prevent situations in which it is established that the purpose of the right of residence or the ‘student’ visa would be misused, leaving to the Member States the means of detecting them, as in the case of the measures which Member States may adopt at their embassies or consulates to detect and prevent attempts to circumvent the right to family reunification, for example by marriages of convenience. (24)

58.      That interpretation of Article 20(2)(f) of Directive 2016/801 is confirmed by recital 41 of that directive, which 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, the applicant’s intended … studies [or] training … and fight against abuse and misuse of the procedure set out in [the Directive]’. (25)

59.      In the third place, the use of the conditional tense (‘would reside’) in Article 20(2)(f) of Directive 2016/801 provides clarification as to the nature of the assessment to be undertaken by the competent authority. It is an ex ante assessment, with that authority being called upon to determine, in a hypothetical context, the applicant’s intentions vis-à-vis the object and the purpose of the stay. (26)

60.      That assessment therefore differs from that to be made by the authority in accordance with Article 21(1)(d) of Directive 2016/801. Under that provision, it must withdraw or refuse to renew a previously granted authorisation if it establishes that ‘the third-country national is residing for purposes other than those for which the third-country national was authorised to reside’. (27) In that situation, objective factors, such as the fact that that national has not commenced, has suspended or has prematurely abandoned the studies in question, the fact that he or she is engaged in professional activity beyond the maximum number of working hours allowed, or that he or she resides far away from the place of study, or even in the territory of another Member State outside his or her rights of mobility within the European Union, are material findings which make it easier to establish the object and purpose of the national’s stay and, in particular, to identify cases in which the procedure has been misused. Such findings are more difficult to make when the application is made whilst the third-country national is still residing outside the territory of the Member State concerned.

61.      In that regard, in view of the silence of Article 20(2)(f) of Directive 2016/801, the evidentiary standard is a matter of discretion. The EU legislature does not lay down any particular requirement as to the form it must take, stating in recital 41 of that directive that Member States should be able to carry out ‘appropriate checks’ and require ‘evidence’ (28) in order to assess, depending on each individual situation, the third-country national’s intended studies or training and the risk of abuse or fraud. In addition, it also follows from the wording of that article that the grounds on which the competent authority bases its decision must be ‘objective and serious’, (29) meaning that it must have detailed and sound reasons, based on a case-specific examination of the application, justifying its rejection.

62.      In the light of those textual indications, I would make two comments.

63.      The first concerns the burden of proof. It is not enough, in my view, for the competent authority to cast doubt on the object and the purpose of the application for a ‘student’ residence permit or visa. On the contrary, it appears to me to be necessary that it is convinced that neither the object nor the purpose of the stay will be to pursue studies at the higher education institution to which that application relates. That assessment must be based on a body of both objective and subjective evidence and may require the cooperation of all the stakeholders concerned, not just the applicant and the diplomatic missions, embassies or consulates (depending on how the national bodies concerned are organised), but also the higher education institutions, or even the departments with responsibility for immigration. The intention of the third-country national is a subjective factor which will usually be established by reference to objective criteria, such as his or her enrolment at a higher education institution, the study costs incurred, knowledge of the language of the host Member State and the lawful nature of his or her previous stays in a Member State of the European Union. In that context, some Member State may pay particular attention to the coherence of the applicant’s planned studies. In France, applications made by Egyptian nationals must be accompanied by a reasoned study plan, which is ‘coherent and, in so far as possible, in line with [his or her] past record’. (30) In Belgium, as is clear from the documents in the annexes to the observations submitted by the appellant in the main proceedings, and from the information provided by the Belgian Government at the hearing, the application for admission made to the consular authorities in Cameroon includes a questionnaire and is accompanied by an interview, which must enable the third-country national to demonstrate that he or she genuinely intends to reside in Belgium as a student. (31) In that situation, the coherence of the planned studies is assessed having regard to the skills acquired by the third-country national, over the course inter alia of his or her academic career, and in the light of his or her professional aspirations and ambitions. That national also has the opportunity to explain and defend his or her planned studies or training at an interview with a guidance counsellor.

64.      At the hearing, particular attention was paid to the relevance of the account taken of the coherence of the third-country national’s planned studies in the context of detecting and preventing misuse of the procedure. While the EU legislature did expressly refer to that factor in recital 15 of Directive 2004/114, it did not reproduce it in recital 41 of Directive 2016/801, opting instead for a more general form of words focussed on the third-country national’s intended ‘studies or training’. There is, in my view, nothing to prevent the competent authority from taking into account the coherence of that national’s planned studies, provided however that that assessment is made on a case-specific basis and is conducted with due care by qualified staff and with the cooperation of the national. I also consider it essential that account is taken of those situations in which the third-country national may have taken an unconventional academic path or intends to pursue another direction. The coherence of the planned studies is therefore one factor which may be taken into consideration by the competent authority, but the weight attached to it will vary according to the circumstances of each individual case.

65.      In the present case, it is clear from the documents in the annexes to the observations submitted by the appellant in the main proceedings that the Belgian consular authorities attached great importance to that factor. Based on the answers given by the appellant in the main proceedings to the questionnaire attached to her application for admission and further to her interview with a guidance counsellor, those authorities took the view that her planned course of study was vitiated by ‘manifest inconsistencies’ in the light not only of her academic background but also her career plans. They found that the application should be rejected on the ground that it was an attempt to misuse the ‘student’ visa issuing procedure for migratory purposes. (32) I will simply state at this point that a Member State can, in my view, reject an application for admission on the ground that the third-country national’s planned studies are incoherent only if, first, it allows the applicant to set out and justify those plans to a qualified member of staff and, second, those inconsistencies appear to be manifest.

66.      The second comment that I wish to make concerns the transposition of Article 20(2)(f) of Directive 2016/801 into the national legal order. The Member State is under no requirement to list, in its transposing legislation, the grounds on the basis of which it may be established that a third-country national would reside for purposes other than those for which he or she applies to be admitted. Those grounds are contingent upon the assessment of each individual case and a list of that kind could deprive the competent authority of the discretion that it enjoys. However, that authority is required, pursuant to Article 34(4) of that directive, to give in writing the reason why the application is rejected, thereby allowing the third-country national to put forward all the circumstances attesting to the genuine and coherent nature of his or her planned studies in the context of the appeal that he or she can lodge in accordance with paragraph 5 of that article.

67.      By way of conclusion of this textual analysis, it is my view that a competent authority of a Member State can reject an application for a ‘student’ residence permit or visa on the basis of Article 20(2)(f) of Directive 2016/801 only if it establishes, on completion of a case-specific assessment of the application and on the basis of evidence or serious and objective grounds, that the third-country national’s stay would have neither the object nor the essential purpose of pursuing, as a main activity, a full-time course of study leading to a higher education qualification recognised by that State. In the context of that examination, there is nothing to prevent the competent authority from taking account of the coherence of the planned studies.

68.      That interpretation is borne out by a schematic and teleological analysis of Directive 2016/801.

2.      Schematic and teleological analysis of Directive 2016/801

69.      Turning, in the first place, to the schematic analysis of Directive 2016/801, such an interpretation ensures, in my view, that due respect is shown to the principle of proportionality and to the fundamental rights of the individual concerned.

70.      It follows from recital 61 of that directive that a decision rejecting an application for admission must respect the fundamental rights of that individual, as guaranteed by the Charter, which include the right to education.

71.      In addition, Article 20(4) of that directive states that ‘any decision to reject an application shall take account of the specific circumstances of the case and respect the principle of proportionality’. This means that, before ruling on an application, the competent authority must undertake a case-specific examination of the application, as part of which it must carry out an exhaustive assessment of both the objective and subjective information available to it and take into account, in a balanced and reasonable manner, all the interests at stake. (33)

72.      The principle of proportionality is a general principle of EU law which Member States must observe when implementing EU law. (34) Thus, while combatting fraud is a legitimate objective which justifies checks being made and, where appropriate, an application being rejected, I would observe that, in a situation like that at issue, the third-country national satisfies both the general and the specific conditions of eligibility required in Articles 7 and 11 of Directive 2016/801. That means that she has been accepted by a higher education institution and has provided proof of the payment of any fees. That national therefore risks having her application for a ‘student’ residence permit or visa rejected, and therefore of being denied the opportunity of pursuing studies at the higher education institution at which she is enrolled. In those circumstances, save in situations in which there is a manifest abuse of law, it is essential, in my view, that the competent authority assesses, on a case-by-case basis, whether the rejection of the application is disproportionate and risks violating certain fundamental rights guaranteed by the Charter.

73.      As regards, in the second place, the teleological analysis of Directive 2016/801, the decision by which a competent authority of a Member State rejects an application for admission for the purpose of studies, on the ground that the third-country national would not reside in the national territory with a view to pursuing, as a main activity, a full-time course of study leading to a higher education qualification recognised by that State, contributes to achieving the objectives of that directive.

74.      First of all, Directive 2016/801 is intended to determine the conditions of entry and residence, both in the territory of the host Member State and in the territory of the other Member States, for members of several categories of third-country nationals, with those conditions being defined according to the specific nature of the stay of each of those categories.

75.      In the case of stays for the purpose of studies, the aim of Directive 2016/801 is to promote Europe as a world centre of excellence for studies by improving and simplifying the ‘conditions for entry and residence of those who wish to come to the Union for those purposes’. (35) In addition, it is apparent from recitals 15 and 44 of that directive that the directive seeks to facilitate the mobility of students within the European Union in order to make European higher education attractive and competitive. To that end, the directive is intended to establish, in accordance with recitals 44 and 48 thereof, a ‘specific mobility scheme’ for students within the European Union which includes autonomous rules regarding entry and stay for the purpose of studies in Member States other than the host Member State. The residence authorisation issued by the host Member State thus affords third-country nationals the right to enter and reside in the territory of another Member State in order to carry out part of their studies for a maximum period of 360 days, in accordance with the provisions governing mobility under Article 31 of the directive.

76.      Next, it is the object of Directive 2016/801, in accordance with Article 1 thereof, to set out the rights of third-country nationals for the purpose of studies both in the territory of the host Member State and in the territory of the other Member States. Recital 54 of that directive states that the Directive seeks to align the rights of such nationals with those enjoyed by the nationals of the Member State concerned, with the residence permit thus allowing the student to enjoy equal treatment on the terms laid down in Article 22(3) of the directive.

77.      A competent authority’s decision rejecting an application for admission for the purpose of studies, on the ground that the third-country national would not reside in the territory of the Member State for the purpose of pursuing, as a main activity, a full-time course of study leading to a higher education qualification recognised by that State, allows situations to be avoided in which that national would benefit from simplified conditions of entry and residence and would be afforded the status of student and the extensive rights attached to that status without a lawful reason. Such a decision also makes it possible to guarantee the specificity of the conditions of entry and residence of the different categories of third-country nationals, upon which Directive 2016/801 is based, and to prevent certain third-country nationals from circumventing the conditions for the issue of a residence permit which would otherwise apply to them.

78.      Lastly, having regard to the extensive rights attached to a ‘student’ residence permit or visa, Article 20(2)(f) of that directive should enable Member States to combat effectively fraud or abuse of the law by affording them the option to refuse admission where it is established that the applicant is seeking admission abusively or fraudulently. According to settled case-law, it cannot be contended, in order to acquire rights or to retain rights acquired by means of fraud, that that fraud was or was not committed by the beneficiary of those rights, or was not known to that person. (36)

79.      In the light of all those considerations, I propose that the Court rule that Article 20(2)(f) of Directive 2016/801 must be interpreted as meaning that a competent authority of a Member State can reject an application for a ‘student’ residence permit or visa only where it has evidence or serious and objective grounds establishing that the third-country national’s stay in the national territory would have neither the object nor the essential purpose of pursuing, as a main activity, a full-time course of study leading to a higher education qualification recognised by that State. The decision to reject such an application must be preceded by a case-specific examination of the application, as part of which the intention of the third-country national to pursue his or her studies in the national territory must be assessed on the basis of both objective and subjective factors, which may include the coherence of his or her planned studies.

B.      Procedure for transposition of Article 20(2)(f) of Directive 2016/801 into national law (first question referred for a preliminary ruling)

80.      By its first question, the referring court essentially asks the Court whether, in the light of Article 288 TFEU, Articles 14 and 52 of the Charter, Articles 3, 5, 7, 11, 20, 34, 35 and 40, as well as recitals 2 and 60 of Directive 2016/801, and the principles of legal certainty and transparency, a Member State intending to reject an application for a ‘student’ residence permit or visa on the ground set out in Article 20(2)(f) of that directive is required to provide expressly for such a power in its national law and, as necessary, the grounds that enable it to establish that the third-country national would reside for purposes other than those for which he or she applies to be admitted.

81.      That question arises since, unlike the current Belgian legislation, which formally transposes Article 20(2)(f) of Directive 2016/801 by providing that the Minister with responsibility for the access to the territory, residence, establishment and removal of foreign nationals may refuse an application where ‘evidence or serious and objective grounds establish that the residence would pursue purposes other than studies’, that was not the case with the legislation applicable to the facts of the dispute in the main proceedings. (37)

82.      I will begin my analysis by making clear that the grounds for rejection of applications provided for in Article 20(2) of Directive 2016/801 are optional for the Member States. That directive does not therefore require a degree of harmonisation as regards the conditions of entry and residence of the categories of third-country nationals falling within its scope, since the transposition of that provision into the national legal orders is left to the discretion of each of the Member States. Member States are free to decide, in exercise of their sovereign powers, to transpose them according to considerations of a political, legal, economic or even social nature. Some Member States, amongst the most exposed to risks of misuse of the ‘student’ visa issuing procedure, thus appear to undertake a more in-depth examination of those applications made by the nationals of certain third countries or those concerning a course of study at specific higher education institutions. (38)

83.      Nevertheless, the fact that Article 20(2) of Directive 2016/801 is an optional provision does not however mean that Member States enjoy complete freedom as regards its implementation with a view to refusing, as they see fit, the residence of third-country nationals falling within the scope of that provision.

84.      Firstly, Member States are required to exercise their power in compliance with the general principles of EU law, which include the principle of legal certainty. (39) The Court thus recently recalled that the transposition into national law of provisions of EU law requires that they be implemented by provisions with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty. (40) That principle seeks to ensure that the legal situations and relationships arising from EU law are foreseeable and requires that any act by an authority which produces legal effects is clear and precise so that the persons concerned may ascertain unequivocally what their rights and obligations are and may take steps accordingly. That requirement applies, in particular, where the act at issue may have negative consequences for those persons. (41)

85.      With regard, specifically, to Article 20(2)(f) of Directive 2016/801, if it were established that the Member State failed to comply with that principle, the competent authority of that State could not rely on that provision to reject an application for a ‘student’ residence permit or visa.

86.      Secondly, it follows from the case-law of the Court that the margin of discretion afforded to the Member States must be used in a manner which complies with the provisions laid down by the EU legislature and does not undermine the objective of Directive 2016/801 or the effectiveness thereof. (42)

87.      In adopting Directive 2016/801, the EU legislature intended to remedy the shortcomings of the scheme previously established by Directive 2004/114 and to fine-tune it so as to ‘ensure increased transparency and legal certainty … for different categories of third-country nationals coming to the Union’, as expressly stated in recital 2 of Directive 2016/801. (43) In that regard, Article 35 of that directive, which is unequivocally entitled ‘Transparency and access to information’, requires Member States to communicate to applicants information on entry and residence conditions, including the rights, obligations and procedural safeguards coming under the directive. In that context, it appears to me essential that a third-country national who applies for a ‘student’ residence permit or visa and satisfies the conditions of eligibility required is informed that that application, whether it is made in good or bad faith, may be rejected if his or her stay pursues another purpose.

88.      Accordingly, both the principle of legal certainty and the principle of transparency require that a Member State intending to rely on the provisions laid down in Article 20(2)(f) of Directive 2016/801 expressly provides within a clear, precise and foreseeable framework that it has the power to reject an application for admission on the ground that it has evidence or serious and objective grounds establishing that the third-country national would reside for purposes other than those for which he or she applies to be admitted.

89.      However, for the reasons set out in point 66 of this Opinion, the transposition of that article does not require the Member State to list those grounds.

90.      It is now necessary to examine whether Article 20(2)(f) of Directive 2016/801 was transposed into the legislation in force at the time of the facts of the dispute in the main proceedings.

91.      The Belgian Government acknowledged at the hearing that there was no positive act transposing that provision. It stated, in that regard, and in line with its written observations, that Article 58 of the Law of 15 December 1980 could be regarded as constituting a pre-existing national provision that ensures the sufficient transposition of EU law into domestic law. (44) It is also established that that legislation did not contain any reference to Directive 2016/801 and was not accompanied by such a reference, contrary to the provisions laid down in the second subparagraph of Article 40(1) of that directive.

92.      Article 58 of the Law of 15 December 1980 provides that, ‘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,’ (45) that authorisation must be granted provided that the third-country national is not in one of the situations laid down in points 5 to 8 of the first paragraph of Article 3, and if he or she produces a certificate issued by an education institution, evidence that he or she has sufficient means of subsistence, a medical certificate and a certificate establishing that he or she has not been convicted of common-law crimes or offences.

93.      It is unequivocally clear from that article that authorisation to reside may be refused if the third-country national does not satisfy some of the general and specific conditions of eligibility contained in Articles 7 and 11 of Directive 2016/801.

94.      However, Article 58 of the Law of 15 December 1980 does not expressly provide that a ‘student’ visa may be refused if it is established, by evidence or serious and objective grounds, that the residence of the third-country national would pursue a purpose other than that of studying in Belgium. The fact, as stated in that national provision, that the application is made by a foreign national who ‘wishes to pursue higher education studies in Belgium’ is interpreted by the CCE as requiring the examination of the third-country national’s wish to undertake higher education studies. This is a component of the application, and the Belgian State is therefore authorised to reject an application if it is established that that national lacks such an intention. However, I do not believe that such a fact can be construed as referring to the ground for rejection of an application for admission laid down in Article 20(2)(f) of Directive 2016/801 or interpreted as ensuring the transposition of that provision in accordance with the abovementioned requirements of clarity, precision and foreseeability.

95.      Accordingly, I am of the view that Article 58 of the Law of 15 December 1980, in the version thereof applicable to the dispute in the main proceedings, does not ensure the transposition of Article 20(2)(f) of Directive 2016/801 in circumstances which respect the principles of legal certainty and transparency.

C.      The procedural arrangements for a judicial challenge to a decision rejecting an application for a ‘student’ residence permit or visa (third question referred for a preliminary ruling)

96.      By its third question, the referring court essentially asks the Court whether Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, must be interpreted as requiring the Member States to confer on the administrative or judicial authority with which an appeal is lodged against a decision rejecting an application for a ‘student’ residence permit or visa the power to vary that decision and to substitute its own assessment for that of the competent authority which adopted it. (46)

97.      The first sentence of Article 34(5) of Directive 2016/801 expressly affords applicants the option to bring a legal challenge in the Member State concerned against the decision rejecting an application for admission, ‘in accordance with national law’. However, that directive does not contain any provision concerning, first, the scope of and the rules governing such a challenge, in particular the time limits within which it must be brought and decided upon, and the powers falling in that regard to the administrative or judicial authority before which the challenge is brought and, secondly, the effects the decision adopted by the competent authority being set aside, in particular how long it has to adopt a new decision. The Member States therefore enjoy a broad margin of discretion. The EU legislature merely states in the second sentence of Article 34(5) of the directive that the competent authorities of the Member State concerned must specify, in a written notification, the court or administrative authority with which an appeal may be lodged and the time limit for lodging the appeal.

98.      The Court interpreted the scope of the first sentence of Article 34(5) of Directive 2016/801 in the judgment of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N., (47) which concerned the refusal by a Polish consular authority to issue a ‘student’ visa to a third-country national applying for such a visa. The Court found that, in accordance with the principle of procedural autonomy, the EU legislature left to the Member States the task of deciding on the nature and specific conditions of the remedies available to applicants for long-term visas covered by that directive. Member States are therefore permitted to confer a power to set aside or to vary decisions on the administrative or judicial authority seised of the matter. A comparative analysis of the different national legislation shows, in this regard, that Member States have adopted a wide variety of procedural solutions in line with their legal traditions. (48)

99.      However, in accordance with its settled case-law, the Court has recalled that the features of the appeal procedure referred to in Article 34(5) of Directive 2016/801 must be determined in accordance, first, with Article 47 of the Charter, which requires Member States to ensure effective judicial protection of rights which individuals derive from EU law, (49) and, second, with the principle of equivalence (procedural rules must not be less favourable than those governing similar domestic situations) and the principle of effectiveness (procedural rules must not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law). (50)

100. In the case in the main proceedings, the only question that arises concerns compliance with Article 47 of the Charter and with the principle of effectiveness.

101. Attention must be drawn to three points in connection with the present case.

102. The first concerns the existence of a right of appeal. It is apparent from the order for reference that the Belgian legislation provides for a right of appeal against decisions rejecting an application for a ‘student’ residence permit or visa. That right of appeal is exercised before the CCE, which, pursuant to Article 39/1(1) of the Law of 15 December 1980, is an administrative court which alone has jurisdiction to hear and determine appeals lodged against individual decisions taken in accordance with the laws on access to the territory, residence, establishment and removal of foreign nationals.

103. The second point concerns the scope of the powers of the administrative or judicial authority with which the appeal is lodged. The referring court states, in this regard, that, pursuant to Article 39/2(2) of the Law of 15 December 1980, the CCE has jurisdiction to set aside a decision rejecting a ‘student’ visa application. However, it does not state to what extent the competent authority is required to comply with that judgment.

104. The third point relates to the time taken for cases to come to judgment. Although the referring court does not mention such time limits in its request for a preliminary ruling, it is the case, however, in the light of the case-law of the Court, that those time limits are of particular significance where the powers of the administrative or judicial authority with which the appeal is lodged are limited to a power to set aside decisions, as is the case in Belgium. (51) I would therefore point out that, under Article 39/82(1) and (4) of the Law of 15 December 1980, the CCE has the power to order that enforcement of the decision against which an appeal is lodged is suspended and is to give a ruling, to that effect, within 30 days of an application to that effect. (52) If suspension is ordered, a ruling is given on the application for annulment within four months of the decision being made.

105. I will begin my analysis by considering the condition relating to the guarantee of effective judicial protection required by Article 47 of the Charter.

106. The judgments of 25 July 2018, Alheto, (53) of 29 July 2019, Torubarov, (54) and of 19 March 2020, Bevándorlási és Menekültügyi Hivatal, (55) which concern the assessment of the legality of decisions ruling on the grant of international protection, provide some useful clarifications in the context of national legislation which confers only a power to set aside decisions on the competent administrative or judicial authority, to the exclusion of a power of variation.

107. Such legislation does not, in itself, infringe the requirement of effective judicial protection. However, the Court is of the view that each Member State must order its national law in such a way that, following annulment of the initial decision and in the event of the file being referred back to the competent authority, a new decision is adopted by that authority within a short period of time which complies with the assessment contained in the judgment annulling the initial decision. (56) The Court bases its reasoning on three main considerations: the need to ensure the fastest possible processing of applications for international protection, the concern to ensure that the provisions enshrining a right of appeal are effective and, lastly, the need to ensure an effective judicial remedy in accordance with Article 47 of the Charter.

108. For reasons distinct from those prevailing in the case of the adoption of a decision granting international protection, a decision on the grant of a ‘student’ residence permit or visa must be adopted as soon as possible, so as to allow the third-country national to begin his or her year of study at the higher education institution at which he or she is lawfully enrolled and to which he or she has paid fees.

109. In the context of Directive 2004/114, the EU legislature already stated that any decision on a ‘student’ residence permit or visa had to be adopted ‘within a period that does not hamper the pursuit of the relevant studies, whilst leaving the competent authorities sufficient time to process the application’. (57)

110. The purpose of adopting Directive 2016/801 was to improve and facilitate the conditions of entry and residence of third-country nationals wishing to come to Europe to pursue their studies there, to ensure that the admission procedure was carried out expeditiously and to strengthen their procedural rights. (58) Those objectives require that a third-country national who satisfies the substantive conditions required to obtain his or her ‘student’ residence permit or visa can be issued with that permit or visa within a period of time that enables him or her to benefit from the rights and advantages attached to that status.

111. Thus, it follows from Article 34(1) of Directive 2016/801 that the competent authorities must adopt a decision as soon as possible but not later than 90 days from the date on which the complete application was submitted. The significance of the time limits is also expressed, first, in recital 42 of that directive, in which the EU legislature insists that the additional information required is provided by the applicant by ‘a reasonable deadline’, and, secondly, in recital 43 of the directive, in which it recommends that the competent authorities notify the decision in writing ‘as soon as possible’.

112. That requirement of speed is inherent in the specific nature of the ‘student’ residence provided for in Directive 2016/801 for third-country nationals.

113. The nature of that residence means that the third-country national must show due diligence by submitting his or her application for a ‘student’ residence permit or visa within a reasonable time and, if necessary, by supplementing it, in line with the timetable adopted by each of the higher education institutions concerned. It also means that the Member State must be able to give a final decision, as the case may be after setting aside an initial decision by the administrative or judicial authority, before the start of the academic year, in order to give that national sufficient time to make the other arrangements necessitated by his or her entry to and residence in the territory of the host Member State, particularly if he or she is residing outside that territory.

114. Accordingly, while the Member States may confer, as Belgian law appears to do in the present case, a power to set aside decisions on the administrative or judicial authority with which an appeal is lodged against such a decision, to the exclusion of a power of variation, the appeal procedure must nevertheless meet a requirement of speed, so as to guarantee not only that third-country nationals have an effective judicial remedy in accordance with Article 47 of the Charter, but also that the rights which they derive from Directive 2016/801 are fully effective. That requirement of speed does not appear to me to be inconsistent with the nature of the examination required when an application for a ‘student’ residence permit or visa is made, since, in my opinion, that examination does not involve complex factual assessments.

115. It follows that, in my view, each Member State should therefore order its national law in such a way that, following annulment of an initial decision and in the event of the file being referred back to the competent authority, a new decision is adopted by that authority which complies with the assessment contained in the judgment annulling the initial decision and which, in addition, is given before the start of the academic year of the higher education institution at which the third-country national is lawfully enrolled.

116. I would add that, in determining those procedural arrangements, the Member States should pay particular attention to the situation of applicants who submit their application whilst they are residing outside the territory of the Member State concerned – by enabling such applicants to exercise the right to exercise a judicial remedy effectively – and to the situation of those who, although present in the territory of that State, have a residence permit or a visa which will soon expire.

117. In the light of all those considerations, I propose that the Court rule that Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, must be interpreted as not precluding a Member State from conferring a power to set aside decisions on the administrative or judicial authority with which an appeal is lodged against a decision rejecting an application for a ‘student’ residence permit or visa, to the exclusion of a power of variation, provided that the new decision is given by the competent authority before the start of the academic year of the higher education institution at which the third-country national is lawfully enrolled.

V.      Conclusion

118. In the light of all the foregoing considerations, I propose that the Court answer the questions referred by the Conseil d’État (Council of State, Belgium) for a preliminary ruling as follows:

(1)      Article 20(2)(f) of Directive 2016/801/EU 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

must be interpreted as meaning that:

–        the principles of legal certainty and transparency require that a Member State intending to transpose that provision into its national legal order expressly provides, within a clear, precise and foreseeable legal framework, that it has the power to reject an application for admission on the ground that it has evidence or serious and objective grounds to establish that the third-country national concerned would reside for purposes other than those for which he or she applies to be admitted. The transposition of that provision does not require the Member State to list those grounds;

–        a competent authority of a Member State can reject an application for admission for the purpose of studies only where it has evidence or serious and objective grounds establishing that the stay of the third-country national in the national territory would have neither the object nor the essential purpose of pursuing, as a main activity, a full-time course of study leading to a higher education qualification recognised by that State.

The decision to reject that application must be preceded by a case-specific examination, as part of which the intention of the third-country national to pursue his or her studies in the national territory must be assessed on the basis of both objective and subjective factors, which may include the coherence of his or her planned studies.

(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 a Member State from conferring a power to set aside decisions on the administrative or judicial authority with which an appeal is lodged against a decision rejecting an application for admission for the purpose of studies, to the exclusion of a power of variation, provided that the new decision is given by the competent authority before the start of the academic year of the higher education institution at which the third-country national is lawfully enrolled.

1      Original language: French.

i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2      Directive 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).

3      C‑491/13, EU:C:2014:2187.

4      Council Directive 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).

5      See judgment of 10 September 2014, Ben Alaya (C‑491/13, EU:C:2014:2187, paragraph 34).

6      See the concept paper of the EMN, entitled ‘Preventing, detecting and tackling situations where authorisations to reside in the EU or for the purpose of study are misused for other purposes’, March 2022 (‘the EMN concept paper’), section 2.

7      See, to that effect, judgment of 23 January 2019, M.A. and Others (C‑661/17, EU:C:2019:53, paragraph 60 and the case-law cited).

8      ‘The Charter’.

9      Moniteur belge of 31 December 1980, p. 14584), in the version thereof most recently amended by the Law of 5 May 2019 (Moniteur belge of 22 August 2019, p. 80425) (‘the Law of 15 December 1980’).

10      Referred to in Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2006 L 381, p. 4); Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of the Schengen Information System for the return of illegally staying third-country nationals (OJ 2018 L 312, p. 1); and Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) No 1987/2006 (OJ 2018 L 312, p. 14) (see Article 1(17) of the Law of 15 December 1980).

11      See Article 39/1 of the Law of 15 December 1980.

12      See Article 1(2) of the Law of 15 December 1980.

13      Moniteur belge of 5 August 2021, p. 77965.

14      At the hearing, the Czech, Lithuanian, Luxembourg, Hungarian and Netherlands Governments focussed their pleadings on the first question for an oral answer put by the Court concerning the transposition of Directive 2016/801.

15      The form and the duration of the residence permit are specified in Articles 17 to 19 of that directive.

16      Subject to a more in-depth examination of the specific condition set out in Article 11(1)(a) of Directive 2016/801, it is my view that the words ‘to follow a course of study’ do not in themselves mean that the Member State may be required to verify the applicant’s wish and intention to study. In my opinion, those words must enable a distinction to be drawn between an applicant wishing to undertake a course of study and one merely participating in an exchange of a limited duration.

17      The mandatory ground for rejection set out in Article 20(1)(b) of Directive 2016/801 covers the situation in which the applicant has presented falsified documents or has acquired those documents fraudulently. Without prejudice to the interpretation of that provision, a finding of fraud would also require the competent authority to take account of the intention of the third-country national (in the present case, the intention to circumvent or to evade the conditions for the issue of a residence permit with a view to obtaining the advantage attached to it). See, in this regard, principles established by the Court concerning a finding of fraud in the judgment of 6 February 2018, Altun and Others (C‑359/16, EU:C:2018:63). A finding of fraud entails verifying that there is a consistent body of evidence that satisfies both an objective and a subjective factor (paragraph 50 of that judgment). Accordingly, only fraud committed materially and intentionally by the third-country national who submitted the application for a ‘student’ residence permit or visa can be penalised. As regards the subjective factor required for a finding of fraud, it corresponds, according to the definition given in the judgment of 6 February 2018, Altun and Others (C‑359/16, EU:C:2018:63), applied to the circumstances of the case in the main proceedings, to the intention of the applicant to evade or circumvent the conditions for the issue of a residence permit, with a view to obtaining the advantage attached to it (paragraph 52 of that judgment).

18      Recital 11 of Directive 2016/801 states that ‘all the provisions of [Council] Directive 2003/86/EC [of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12)] should apply, including grounds for rejection or withdrawal or refusal of renewal. Consequently, residence permits of family members could be withdrawn or their renewal refused if the authorisation of the researcher they are accompanying comes to an end and they do not enjoy any autonomous right of residence’.

19      See recital 32 of Directive 2016/801.

20      Emphasis added.

21      Article 24 of that directive sets out the conditions and limits within which a student may engage in professional activity at the same time as pursuing his or her studies.

22      See, in that regard, Article 20(2)(d) of Directive 2016/801.

23      It is clear from recital 54 of Directive 2016/801 that students benefit from the provisions of Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343, p. 1), which provides for a common set of rights based on equal treatment with the nationals of the host Member State (recital 20 and Article 1(1)(b) of Directive 2011/98).

24      See Article 16(4) of Directive 2003/86 and, as regards case-law, judgment of 23 September 2003, Akrich (C‑109/01, EU:C:2003:491, paragraph 57).

25      Whereas the French language version of this recital uses the words ‘d’une part … d’autre part’ (‘both … and’), other language versions, such as the Spanish-, English- and Italian-language versions, use the coordinating conjunction ‘and’.

26      Furthermore, the Italian-language version of this article expressly refers to the concept of ‘intention’ (‘che il cittadino di paese terzo intende soggiornare’, emphasis added).

27      Emphasis added.

28      Article 34(3) of that directive allows the competent authority to require the applicant to provide additional evidence in support of his or her application.

29      It is apparent from a comparative analysis of the different language versions of Article 20(2)(f) of Directive 2016/801, firstly, that the adjectives ‘serious and objective’ relate to the ‘grounds’ and not to the ‘evidence’ (see, for example, the English-language version (‘the Member State has evidence or serious and objective grounds’) or the Italian-language version (‘lo Stato membro è in possesso di prove o ha motivi seri e oggettivi’)) and, secondly, that the concept of ‘serious grounds’ differs from that of ‘imperative grounds’ used by the EU legislature in many acts of secondary law concerning the residence of citizens of the European Union or third-country nationals in the European Union, such as Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).

30      See, for example, the ‘Campus France Égypte’ website: https://www.egypte.campusfrance.org/fr/preparer-un-projet-d-etudes-clair-et-coherent.

31      According to the EMN concept paper, document validation and applicant interviews are the two most common methods used at the pre-arrival stage (section 2).

32      It is apparent from the documents in the national file that the application for admission submitted to the Belgian consular authorities must allow the third-country national to demonstrate that he or she genuinely intends to reside in Belgium as a student in order to pursue higher education studies there. The questionnaire must enable that national to set out and give reasons for his or her planned studies in the light of his or her academic background and professional ambitions, whilst the interview must provide him or her with the opportunity to explain or to defend those plans.

33      I would also point out that, in the judgment of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450), which concerns the interpretation of Article 35 of Directive 2004/38, the Court held that the fact that a Member State is faced with a high number of cases of abuse of rights or fraud committed by third-country nationals cannot justify the adoption of measures founded on considerations of general prevention, to the exclusion of any specific assessment of the conduct of the person concerned himself (paragraph 55).

34      See also recital 36 of Directive 2016/801, which states that ‘it should be possible to refuse admission if a Member State considers, on the basis of an assessment of the facts in an individual case and taking into account the principle of proportionality, that the third-country national concerned is a potential threat to public policy, public security or public health’.

35      See recital 14 of Directive 2016/801 (emphasis added).

36      See, by analogy, judgment of 14 March 2019, Y.Z. and Others (Fraud in family reunification) (C‑557/17, EU:C:2019:203, paragraphs 64 and 65).

37      The Law of 11 July 2021 amending the Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals in relation to students provides, in Article 2 thereof, that it ‘transposes in part Directive 2016/801’ and, in Article 15 thereof, transposes the ground for refusal set out in Article 20(2)(f) of that directive.

38      See, in this regard, the EMN concept paper, section 5.

39      See judgment of 16 February 2023, DGRFP Cluj (C‑519/21, EU:C:2023:106, paragraph 105).

40      See judgment of 29 June 2023, Stadt Frankfurt am Main and Stadt Offenbach am Main (Renewal of a residence permit in the second Member State) (C‑829/21 and C‑129/22, EU:C:2023:525, paragraph 77 and the case-law cited). While that consideration concerns the mandatory provisions set out in the second subparagraph of Article 9(4) and in Article 22(1)(b) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 (OJ 2011 L 132, p. 1), it applies, in my view, by analogy to an optional provision such as Article 20(2)(f) of Directive 2016/801.

41      See judgment of 16 February 2023, DGRFP Cluj (C‑519/21, EU:C:2023:106, paragraph 105).

42      See, by analogy, judgment of 13 March 2019, E. (C‑635/17, EU:C:2019:192, paragraph 53 and the case-law cited).

43      See also Report from the Commission to the European Parliament and the Council of 28 September 2011 on the application of Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (COM(2011) 587 final), in which the Commission noted the ‘broader duty to inform third-country nationals about the rules applicable to the admission of students, so as to ensure transparency and legal certainty for prospective students and thus encourage them to study in the EU’ (p. 4, ‘Specific conditions for students’).

44      The Court has held that not only the national provisions specifically intended to transpose a directive but also, from the date of that directive’s entry into force, pre-existing national provisions capable of ensuring the transposition of that directive into domestic law can be considered as falling within the scope of the directive (see judgment of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584, paragraph 77 and the case-law cited)).

45      Emphasis added.

46      In support of her observations, the appellant in the main proceedings refers to Article 46(1) and (3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60). However, I do not believe such a parallel can be drawn, since that article expressly states that an effective remedy against a decision declaring an application for international protection inadmissible or unfounded provides for a full and ex nunc examination of both facts and points of law.

47      C‑949/19, EU:C:2021:186, paragraphs 37 to 46 and the case-law cited.

48      See the EMN concept paper, section 7.

49      See judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention) (C‑704/20 and C‑39/21, EU:C:2022:858, paragraph 81 and the case-law cited).

50      See judgment of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N. (C‑949/19, EU:C:2021:186, paragraphs 42 to 44 and the case-law cited).

51      I would point out that the case of Darvate and Others (C‑299/23), which is currently pending before the Court, specifically concerns the time limits for giving judgment laid down in Belgian legislation in the context of Article 34(5) of Directive 2016/801.

52      An urgent application for suspension, which is dealt with in 48 hours, is reserved for removal or refoulement orders which are to be enforced imminently.

53      C‑585/16, EU:C:2018:584.

54      C‑556/17, EU:C:2019:626.

55      C‑406/18, EU:C:2020:216.

56      See judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (C‑406/18, EU:C:2020:216, paragraph 22 and the case-law cited).

57      Article 18(1) of Directive 2004/114.

58      See Commission Staff Working Document, Impact Assessment, accompanying the Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing (COM(2013) 151 final), available at the following internet address: https://data.consilium.europa.eu/doc/document/ST‑7869-2013-ADD-1/en/pdf (p. 19).