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Publication
The Position of the Court of Justice of the European Union in the Zakaria Case (C-23/12): General Observations
Journal Contribution - Journal Article
The Community Code on the rules governing the movement of persons across borders, also known as "Schengen Borders Code", established by Regulation No.562/2006, has a double function: to contribute to the creation of a space of free movement of people without internal border controls and to establish a common corpus of legislation governing border control of persons crossing the external borders of the Member States of the European Union.
Rules regarding external border controls oblige Member States to assure specific procedural guarantees to third-country nationals refused entry in their territories.
In particular, Article 13§3 states "persons refused entry have the right to appeal". Nonetheless, this provision does not establish any common standards applicable to Member States; on the contrary, it specifies that "appeals should be conducted in accordance with national law". In the case C-23/12, Mr Zakaria brings an action against the refusal to grant his application for damages based on the conduct of an administrative body upon his crossing of the Latvian border.
The request for a preliminary ruling submitted by the Latvian Senate of the Supreme Court to the Court of Justice of the European Union (hereinafter CJEU) concerns the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter'), regulating the right to an effective remedy and to a fair trial, as well as Article 6§1 and Article 13§3 of Regulation No. 562/2006.
The main question of the Supreme Court regards the extent to which Article 13§3 is applicable: does this provision foresee the possibility to enjoy the right of appeal only against decisions refusing entry into a Member State or also against infringements committed in the procedure leading to the adoption of a decision authorizing entry, e.g. the alleged misconduct of Latvian border guards in the performance of their duties? Which is the role of the Charter in such a situation? In its Judgment issued on 17th January 2013, the CJEU show great caution about the alleged violations of the provisions of the Charter, resulting not from the content of an administrative decision, but from a procedural defect committed during its adoption.
Rules regarding external border controls oblige Member States to assure specific procedural guarantees to third-country nationals refused entry in their territories.
In particular, Article 13§3 states "persons refused entry have the right to appeal". Nonetheless, this provision does not establish any common standards applicable to Member States; on the contrary, it specifies that "appeals should be conducted in accordance with national law". In the case C-23/12, Mr Zakaria brings an action against the refusal to grant his application for damages based on the conduct of an administrative body upon his crossing of the Latvian border.
The request for a preliminary ruling submitted by the Latvian Senate of the Supreme Court to the Court of Justice of the European Union (hereinafter CJEU) concerns the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter'), regulating the right to an effective remedy and to a fair trial, as well as Article 6§1 and Article 13§3 of Regulation No. 562/2006.
The main question of the Supreme Court regards the extent to which Article 13§3 is applicable: does this provision foresee the possibility to enjoy the right of appeal only against decisions refusing entry into a Member State or also against infringements committed in the procedure leading to the adoption of a decision authorizing entry, e.g. the alleged misconduct of Latvian border guards in the performance of their duties? Which is the role of the Charter in such a situation? In its Judgment issued on 17th January 2013, the CJEU show great caution about the alleged violations of the provisions of the Charter, resulting not from the content of an administrative decision, but from a procedural defect committed during its adoption.
Journal: La Rivista dell'Osservatorio SLSG
ISSN: 2284-0419
Issue: 2
Pages: 5-11
Publication year:2013
Keywords:European Union, Fundamental Rights, Schengen Borders Code