Case C-23/12

Mohamad Zakaria

(Request for a preliminary ruling from the Augstākās tiesas Senāts)

‛Regulation (EC) No 562/2006 — Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) — Alleged violation of the right to respect for human dignity — Effective judicial protection — Right of access to a court’

Summary — Judgment of the Court (Fifth Chamber), 17 January 2013

1. Judicial proceedings — Oral procedure — Obligation to hold a hearing — Condition — Submission of a reasoned request by an interested person who did not participate in the written part of the procedure

   (Rules of Procedure of the Court of Justice, Art. 76(2) and (3))

2. Judicial proceedings — Representation of the parties — Representation in the context of a reference for a preliminary ruling — Possibility of representation by a person not so entitled under the applicable national rules of procedure — Not included

   (Rules of Procedure of the Court of Justice, Art. 47(2))

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation of national law — Not included — Provision of guidance to the referring court as to the interpretation of EU law

   (Art. 267 TFEU)

4. Border controls, asylum and immigration — Community Code on movement across borders — Availability of appropriate redress against a decision to refuse entry — Obligation on Member States to establish a means of obtaining redress against infringements committed by border guards during the adoption of a decision — Absence of obligation — Assessment by the national court of the adequacy of the legal remedies with regard to Article 47 of the Charter of Fundamental Rights of the European Union in the case of a situation governed by EU law or by otherwise taking account of the European Convention on Human Rights

   (Charter of Fundamental Rights of the European Union, Arts 47 and 51(1); European Parliament and Council Regulation No 562/2006, Arts 6 and 13(3))

1.  See the text of the decision.

   (see para. 25)

2.  See the text of the decision.

   (see para. 26)

3.  See the text of the decision.

   (see paras 29, 30)

4.  Article 13(3) of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) obliges Member States to establish a means of obtaining redress only against decisions to refuse entry and not, in that respect, against infringements allegedly committed by border guards in the procedure leading to the adoption of a decision.

   However, if the national court considers, in the light of the facts of the case before it, that the situation of the claimant is governed by EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights, it is for that court to ascertain whether a refusal to grant him the right to bring his claims before a court infringes the rights recognised in Article 47 of the Charter. Border guards performing their duties, within the meaning of Article 6 of that regulation, are required, inter alia, to fully respect human dignity. It is for Member States to provide in their domestic legal system for the appropriate legal remedies to ensure, in compliance with Article 47 of the Charter, the protection of persons claiming the rights derived from Article 6 of Regulation No 562/2006. On the other hand, if that court takes the view that that situation is not governed by EU law, it must examine it in the light of national law, taking into account also the European Convention for the Protection of Human Rights, and to which all the Member States are party.

   (see paras 39-42, operative part)

Case C-23/12

Mohamad Zakaria

(Request for a preliminary ruling from the Augstākās tiesas Senāts)

‛Regulation (EC) No 562/2006 — Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) — Alleged violation of the right to respect for human dignity — Effective judicial protection — Right of access to a court’

Summary — Judgment of the Court (Fifth Chamber), 17 January 2013

1. Judicial proceedings — Oral procedure — Obligation to hold a hearing — Condition — Submission of a reasoned request by an interested person who did not participate in the written part of the procedure

   (Rules of Procedure of the Court of Justice, Art. 76(2) and (3))

2. Judicial proceedings — Representation of the parties — Representation in the context of a reference for a preliminary ruling — Possibility of representation by a person not so entitled under the applicable national rules of procedure — Not included

   (Rules of Procedure of the Court of Justice, Art. 47(2))

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation of national law — Not included — Provision of guidance to the referring court as to the interpretation of EU law

   (Art. 267 TFEU)

4. Border controls, asylum and immigration — Community Code on movement across borders — Availability of appropriate redress against a decision to refuse entry — Obligation on Member States to establish a means of obtaining redress against infringements committed by border guards during the adoption of a decision — Absence of obligation — Assessment by the national court of the adequacy of the legal remedies with regard to Article 47 of the Charter of Fundamental Rights of the European Union in the case of a situation governed by EU law or by otherwise taking account of the European Convention on Human Rights

   (Charter of Fundamental Rights of the European Union, Arts 47 and 51(1); European Parliament and Council Regulation No 562/2006, Arts 6 and 13(3))

1.  See the text of the decision.

   (see para. 25)

2.  See the text of the decision.

   (see para. 26)

3.  See the text of the decision.

   (see paras 29, 30)

4.  Article 13(3) of Regulation No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) obliges Member States to establish a means of obtaining redress only against decisions to refuse entry and not, in that respect, against infringements allegedly committed by border guards in the procedure leading to the adoption of a decision.

   However, if the national court considers, in the light of the facts of the case before it, that the situation of the claimant is governed by EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights, it is for that court to ascertain whether a refusal to grant him the right to bring his claims before a court infringes the rights recognised in Article 47 of the Charter. Border guards performing their duties, within the meaning of Article 6 of that regulation, are required, inter alia, to fully respect human dignity. It is for Member States to provide in their domestic legal system for the appropriate legal remedies to ensure, in compliance with Article 47 of the Charter, the protection of persons claiming the rights derived from Article 6 of Regulation No 562/2006. On the other hand, if that court takes the view that that situation is not governed by EU law, it must examine it in the light of national law, taking into account also the European Convention for the Protection of Human Rights, and to which all the Member States are party.

   (see paras 39-42, operative part)