Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 16 January 2023 – XXX v Belgian State, represented by the State Secretary for Asylum and Migration
(Case C-14/23, Perle)
Language of the case: French
Referring court
Conseil d’État
Parties to the main proceedings
Appellant: XXX
Respondent: Belgian State, represented by the State Secretary for Asylum and Migration
Questions referred
Having regard to Article 288 [TFEU], Articles 14 and 52 of the Charter of Fundamental Rights of the European Union, Articles 3, 7, 5, 11, 20, 34, 35 and 40 of Directive 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast) 1 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?
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?
Do Article 47 of the Charter of Fundamental Rights, 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?
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1 OJ 2016 L 132, p. 21.