Provisional text

19 June 2025 (*)

( Reference for a preliminary ruling – Immigration policy – Directive (EU) 2016/801 – Conditions of entry and residence of third-country nationals for study purposes – Article 34(5) – Appeal against a decision rejecting an application for admission to the territory of a Member State for study purposes – Fundamental right to an effective judicial remedy – Article 47 of the Charter of Fundamental Rights of the European Union )

In Case C‑299/23 [Darvate and Others], (i)

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), made by decision of 10 May 2023, received at the Court on 11 May 2023, in the proceedings

Ordre des barreaux francophones et germanophone de Belgique,

Coordination et Initiatives pour et avec les Réfugiés et les Étrangers ASBL,

NX

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, E. Regan (Rapporteur) and J. Passer, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–the Ordre des barreaux francophones et germanophone de Belgique, Coordination et Initiatives pour et avec les Réfugiés et les Étrangers ASBL and NX, by J. Hardy, C. Jadot and M. Kaiser, avocats,

–the Belgian Government, by M. Jacobs, C. Pochet and M. Van Regemorter, acting as Agents, and by E. Derriks, avocate,

–the European Commission, by J. Hottiaux and A. Katsimerou, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

This request for a preliminary ruling concerns the interpretation of Article 5(3) and Article 34 of Directive (EU) 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 (OJ 2016 L 132, p. 21), the principle of effectiveness and Articles 7, 14 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

The request has been made in proceedings between the Ordre des barreaux francophones et germanophone de Belgique, Coordination et initiatives pour et avec les Réfugiés et les Étrangers ASBL, a non-profit association, and NX, on the one hand, and the État belge (Belgian State), on the other hand, concerning the adoption of legal provisions to ensure an effective remedy against decisions refusing to issue visas for study purposes.

Legal context

European Union law

Article 5 of Directive 2016/801, entitled ‘Principles’, provides in paragraphs 1 and 3 thereof:

‘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.

…

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.’

Article 7 of that directive, entitled ‘General conditions’, provides in paragraph 1 thereof:

‘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.’

Article 11 of that directive, entitled ‘Specific conditions for students’, provides in paragraph 1 thereof:

‘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, that 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.’

Article 34 of Directive 2016/801, entitled ‘Procedural guarantees and transparency’, provides in paragraphs 1, 3 and 5 thereof:

‘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.

…

…

Belgian law

Article 39/82 of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals) (Moniteur belge of 31 December 1980, p. 14584), in the version applicable to the dispute in the main proceedings (‘the Law of 15 December 1980’), provides:

‘1. Where an act of an administrative authority is amenable to annulment under Article 39/2, the Council alone shall have jurisdiction to order the suspension of its enforcement.

Suspension shall be ordered, after the parties have been heard or duly summoned to appear, by reasoned decision of the President of the Chamber hearing the case or the judge hearing asylum and immigration proceedings appointed by the President for that purpose.

In cases of extreme urgency, suspension may be ordered provisionally, without the parties, or some of them, having been heard.

…

Judgments ordering suspension may be set aside or varied at the request of the parties.

…

The application shall include a statement of the grounds and facts which, according to the applicant, justify the suspension or, as the case may be, the ordering of interim measures.

…

If the foreign national is the subject of a removal or refoulement order the enforcement of which is imminent, in particular if he or she is held at a specific place as referred to in Articles 74/8 and 74/9 or is placed at the disposal of the government, he or she may, if he or she has not yet applied for the suspension of that order by way of the ordinary procedure, apply for suspension of the enforcement of that order on grounds of extreme urgency within the period referred to in Article 39/57(1)(3).

If the application appears to be manifestly out of time, the President of the Chamber hearing the case or the judge hearing asylum and immigration proceedings appointed by the President shall include a statement to that effect in his or her order and, without delay, shall summon the parties to appear within 24 hours of receipt of the application. The President of the Chamber or the judge hearing asylum and immigration proceedings shall conduct a careful and rigorous examination of all the evidence brought to his or her attention, in particular evidence suggesting that there is reason to believe that enforcement of the contested decision would expose the applicant to the risk of suffering a breach of fundamental human rights from which no derogation may be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which shall be the subject of a careful and rigorous review.

An application for suspension on grounds of extreme urgency shall be examined within 48 hours of its receipt by the President of the Chamber or by the judge hearing asylum and immigration proceedings. That period shall, however, be extended to five days following receipt of that application by the Council, where the actual removal or refoulement of the foreign national is scheduled to take place more than eight days thereafter.

If the President of the Chamber or the judge hearing asylum and immigration proceedings does not take a decision within the time limit, he or she must notify the First President or the President thereof. The First President or the President shall take the necessary steps to ensure that a decision is given, as appropriate, either no later than 72 hours after receipt of the application or as soon as possible. In both cases, he or she may inter alia dispose of the case and give judgment him or herself.

By way of derogation from the foregoing subparagraphs, the President of the Chamber hearing the case or the judge hearing asylum and immigration proceedings appointed by the President shall give priority to ruling on the admissibility of the application, if necessary without summoning the parties where the following conditions are satisfied:

(1)the application concerns a second removal or refoulement order; and

(2)the application is manifestly out of time, and

(3)the application is submitted less than 12 hours before the scheduled time for enforcing the order, and

(4)the applicant and, where appropriate, his or her lawyer have been informed at least 48 hours before the scheduled time for enforcement of the order.

If the President of the Chamber hearing the case or the judge hearing asylum and immigration proceedings appointed by the President declares the application inadmissible, the judgment shall bring the proceedings to an end. If he or she declares the application admissible, the proceedings shall continue as provided for in subparagraphs 3 to 6.

…’

Article 60 of the Law of 15 December 1980 provides:

‘1. A third-country national wishing to stay in the territory of the Kingdom of Belgium as a student must submit his or her application to the diplomatic or consular post responsible for his or her place of residence abroad.

(1)a copy of his or her valid passport or travel document in its stead;

(2)proof of payment of the fee, as provided for in Article 1/1, if he or she is subject to that obligation;

(3)a certificate issued by a higher education institution proving:

(a)that he or she is enrolled in a higher education institution in order to pursue higher education or to complete a preparatory year on a full-time basis, or

(b)that he or she has been admitted to study, or

(c)that he or she is enrolled for an entrance examination or an entrance test;

The King shall lay down the conditions which that certificate must satisfy.

(4)if he or she is under the age of 18, proof of authorisation from his or her parents or, as the case may be, his or her guardian;

(5)proof, in accordance with Article 61, that he or she will have sufficient means of subsistence for the duration of his or her stay so as not to become a burden on the social assistance system of the Kingdom of Belgium during his or her stay;

(6)proof that he or she has, or will have, sickness insurance covering all risks in Belgium for the duration of his or her stay;

If the application has been submitted abroad and it is not yet possible to attach that proof to the application, it must be provided within the period prescribed in Article 61/1/1(4);

(7)a medical certificate showing that he or she does not suffer from one of the illnesses listed in the annex to this Law;

(8)if he or she is over the age of 18, a criminal record certificate or an equivalent document, issued by the country of origin or the country of his or her last place of residence, less than six months old, certifying that he or she has not been convicted of ordinary-law crimes or offences.

Where there are good reasons preventing the foreign national from producing the documents referred to in subparagraphs 7 and 8, the Minister or his or her representative may, however, in the light of the circumstances, authorise that foreign national to stay in the territory of the Kingdom of Belgium in order to study there.

…’

10Article 61/1/1(1) of the Law of 15 December 1980 provides that the Minister or his or her representative is to take a decision and notify it to the third-country national within 90 days of the date of acknowledgement of receipt of the application, referred to in Article 61/1(1).

11Article 61/1/3 of that law lists the situations in which the Minister or his or her representative must or may refuse an application. In particular, they must refuse that application if the conditions laid down in Article 60 of the law are not satisfied or if the third-country national is considered to pose a threat to public policy, national security or public health. Furthermore, they may refuse such an application where it can be established, on the basis of evidence or compelling and objective grounds, that the stay is for purposes other than studies. If the third-country national is not in one of the situations referred to in Article 61/1/3, the residence permit must be granted.

The dispute in the main proceedings and the questions referred for a preliminary ruling

11On 25 February 2021, the President of AVOCATS.BE and the President of the Orde van Vlaamse Balies (Association of Flemish Bars) sent a letter to the State Secretary for Asylum and Migration (Belgium) questioning him about the lack of an effective remedy for third-country nationals against decisions of the competent authorities rejecting their visa applications for study purposes.

12They sent the State Secretary for Asylum and Migration a further letter on 16 August 2021, in which they called upon the Belgian State, and, if necessary, put it on formal notice, to submit without delay to the Parliament a draft law providing for appeals against those decisions, to be heard under an urgent procedure by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium).

13The Secretary of State for Asylum and Migration replied to them by letter of 23 September 2021, which did not resolve the issue raised.

14On 16 June 2022, the applicants in the main proceedings brought an action before the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), which is the referring court, seeking an order requiring the Belgian State, subject to a periodic penalty payment, to adopt legal measures enabling third-country nationals wishing to pursue their studies in Belgium to have an effective remedy against decisions rejecting their visa applications made for that purpose. The referring court states that, in addition to raising a plea in law alleging breach of Article 47 of the Charter, the applicants submit that the lack of an effective remedy infringes the right to respect for private and family life and the right to education, which are guaranteed, respectively, in Articles 7 and 14 of the Charter.

15The applicants claim that the introduction of such a remedy constitutes compensation for the harmful consequences of the Belgian State’s wrongful failure to act.

16The referring court notes that, because of the specific features of the procedure applicable to visa applications for study purposes, some visa applicants do not receive a decision until the period from August to October of the year in which they wish to pursue their studies in Belgium. If the application is rejected, the person concerned can therefore refer the matter to the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) only shortly before the beginning of the relevant academic year.

17It is apparent from the order for reference that, although an action for suspension or annulment of the rejection decision may be brought before that court, it carries out only a review of legality and does not have the power to vary that decision, with the result that it cannot substitute its own assessment for that of the competent authorities or take a new decision in their place. However, if that decision were annulled, those authorities would be bound by the force of res judicata attaching to the operative part of the judgment of that court and to the grounds constituting its essential basis.

18Furthermore, the referring court states that, since the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) does not have the power to order interim measures, inter alia, instructing the competent authorities to take a new decision with a view to issuing the visa for study purposes applied for, the year of study of the person concerned may be irreversibly compromised as a result of a failure to take a decision in due time.

19In addition, the referring court states, first, that because of the judgment of the General Assembly of the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) of 24 June 2020, applications for suspension on grounds of extreme urgency provided for in Article 39/82 of the Law of 15 December 1980 can concern only a removal or refoulement order the enforcement of which is imminent and, second, that the decisions of courts hearing applications for interim measures after that judgment did not provide satisfactory solutions as regards decisions rejecting visa applications for study purposes.

20If a third-country national’s visa application for study purposes is not granted in due time, he or she may bring an action to establish the civil liability of the Belgian State, enabling him or her to obtain financial compensation. However, the loss of one year of study is irreversible and cannot be adequately remedied by the existence of an action for compensation.

21Therefore, the question arises as to whether the remedy available, under Belgian law, to a third-country national in order to challenge a decision rejecting his or her visa application for study purposes and, in so doing, to be able to benefit, where appropriate, from the rights which he or she derives from Article 5(3) of Directive 2016/801 so as to pursue his or her studies in Belgium is sufficient to satisfy the requirements arising from Article 34(5) of that directive, read in conjunction with Articles 7, 14 and 47 of the Charter and the principle of effectiveness.

22In those circumstances, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-Speaking)) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘Does Article 34 of Directive [2016/801], alone or in conjunction with Articles 7, 14[(1)] and 47 of the [Charter] and the principle of effectiveness, and in the light of the objective pursued by that directive to strengthen the procedural guarantees available to third-country nationals and to encourage foreign students to come to the European Union, require:

(a)[(a)] that a foreign student have the option of bringing an exceptional appeal, in conditions of extreme urgency, where he or she demonstrates that he or she has exercised all due diligence and that compliance with the time limits imposed in order to conduct an ordinary procedure (for suspension/annulment) could hamper the pursuit of the studies in question?

If the answer to that question is in the negative, must the same negative answer be given where failure to adopt a decision in a short period of time risks causing the person concerned irretrievably to lose a year of study?

(b)[(b)] that a foreign student have the option of bringing an exceptional appeal, in conditions of extreme urgency, where he or she demonstrates that he or she has exercised all due diligence and that compliance with the time limits imposed in order to conduct an ordinary procedure (for suspension/annulment) could hamper the pursuit of the studies in question, in the context of which, concomitantly with the suspension, he or she may request that other interim measures be ordered to ensure the effectiveness of the right to obtain authorisation if he or she fulfils the general and specific conditions, as guaranteed in Article 5(3) [of that directive]?

If the answer to that question is in the negative, must the same negative answer be given where failure to adopt a decision in a short period of time risks causing the person concerned irretrievably to lose a year of study?

(c)[(c)] that the remedy in the form of an appeal against the decision refusing to grant the visa allow the court to substitute its own assessment for that of the administrative authority and to [vary] 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?’

Consideration of the questions referred

23By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, must be interpreted as requiring, as regards the action by which a third-country national, in order to assert the rights he or she derives from Article 5(3) of that directive, seeks to challenge the decision of the competent authorities rejecting his or her application for admission to the territory of the Member State concerned for study purposes:

–that an exceptional appeal heard under an urgent procedure is afforded to such a national where, even though he or she has exercised due diligence, compliance with the time limits relating to the ordinary procedure for reviewing that decision could hinder the progress of his or her studies;

–that, in the context of such an exceptional appeal, the court hearing the case has the power to order, where appropriate, interim measures, inter alia, instructing the competent authorities to take a new decision with a view to issuing the resident permit for study purposes applied for, and

–that the court hearing an appeal against that decision has the power to substitute its own assessment for that of those authorities or to adopt a new decision.

24In that regard, it should be noted that, under Article 5(3) of Directive 2016/801, a third-country national who has applied for admission to the territory of a Member State for study purposes is entitled to an authorisation to reside on the territory of that Member State if he or she fulfils the general conditions laid down in Article 7 of that directive and the specific conditions applicable depending on the type of application submitted, in this case those laid down in Article 11 of that directive for applications for admission for study purposes.

25It follows that, pursuant to Article 5(3) of that directive, Member States are required to issue a residence permit for study purposes to an applicant who has satisfied the requirements set out in Articles 7 and 11 of Directive 2016/801 (judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 35 and the case-law cited).

26Under Article 34(5) of Directive 2016/801, any decision declaring inadmissible or rejecting an application, refusing renewal or withdrawing an authorisation is to be open to legal challenge in the Member State concerned, in accordance with national law.

27It follows that, in the event of a decision rejecting an application for admission to the territory of a Member State for study purposes, Article 34(5) expressly enables a third-country national who has submitted such an application to bring an appeal in accordance with the national law of the Member State which took that decision (judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 61 and the case-law cited).

28It must therefore be observed that, by stating that the appeal must be lodged in accordance with the national law of the Member State concerned, the EU legislature has left to the Member States the task of deciding on the nature and specific conditions of the remedies available to applicants for visas for study purposes covered by Directive 2016/801 (see, to that effect, judgment of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N., C‑949/19, EU:C:2021:186, paragraph 42).

29However, the nature and specific conditions of the appeal procedure referred to in Article 34(5) of Directive 2016/801 must be determined in a manner that is consistent with Article 47 of the Charter (see, to that effect, judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 62 and the case-law cited).

30When there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are to ensure compliance in every case with the right to effective judicial protection of those rights as enshrined in Article 47 of the Charter (judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 142 and the case-law cited).

31In addition, it should be noted that the Court has held that the right to an effective remedy, enshrined in Article 47 of the Charter, would be illusory if the legal order of a Member State allowed a final, binding judicial decision to remain ineffective to the detriment of one party. That is particularly true where obtaining the actual benefit of the rights deriving from EU law, as recognised by a judicial decision, requires compliance with time constraints (judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 63 and the case-law cited).

32In that regard, in the context of the present case, the referring court raises the question of the appropriate point in time for the issuance of the visa for study purposes applied for and, consequently, for the decision ruling on the appeal brought against the refusal of such a visa, so that the third-country national concerned may, where appropriate, benefit from the rights which he or she derives from Directive 2016/801.

33In that context, first, as regards the bringing of an exceptional appeal to be heard under an urgent procedure, it must be pointed out that, according to settled case-law, EU law, including the provisions of the Charter, does not have the effect of requiring Member States to establish remedies other than those established by national law, unless it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, observance of the rights that individuals derive from EU law (see, to that effect, judgment of 7 September 2023, Rayonna prokuratura Lovech, teritorialno otdelenie Lukovit (Personal search), C‑209/22, EU:C:2023:634, paragraph 54 and the case-law cited).

34Therefore, Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, does not require the establishment of an exceptional appeal to be heard under an urgent procedure.

35However, it must be ensured that the conditions under which an appeal against a decision of the competent authorities rejecting an application for admission to the territory of a Member State for study purposes is brought and, where appropriate, the judgment adopted at the end of that action is implemented are such that they allow, in principle, a new decision to be adopted within a short period of time, in such a way that a sufficiently diligent third-country national can benefit from the full effectiveness of the rights which he or she derives from that directive (see, to that effect, judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 66).

36Second, as regards the introduction of the possibility for the court hearing the case to instruct the competent authorities to take a new decision for the purposes of issuing the residence permit applied for and, third, as regards the possibility for such a court to substitute its assessment for that of those authorities or to adopt a new decision, it should be noted that those questions raised by the referring court relate to the powers which courts hearing actions challenging the rejection of applications for admission may exercise.

37In that regard, it should be borne in mind that, where a national administrative decision is at issue, which, in order to ensure observance of the actual benefit of the rights of the person concerned under EU law, in this case those which he or she derives from the satisfaction of the requirements laid down in Article 5(3) of Directive 2016/801, must be adopted quickly, it is apparent from the need, arising from Article 47 of the Charter, to ensure that the action brought against the initial administrative decision rejecting that application is effective, that each Member State must order its national law in such a way that, in the event of its annulment, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling that decision (see, to that effect, judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 64 and the case-law cited).

38Thus, in the light of the considerations set out in paragraphs 29 to 31 of the present judgment, the Court has held that, as regards applications for admission to the territory of a Member State for study purposes, the fact that the court hearing the case has jurisdiction only to rule on the annulment of the decision of the competent authorities rejecting such an application is sufficient, in principle, to satisfy the requirements of Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, without it being necessary for that court to be able to substitute its own assessment for that of those authorities or adopt a new decision, provided that, as the case may be, those authorities are bound by the assessment contained in the judgment annulling that decision (see, to that effect, judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 65).

39In addition to the considerations set out in paragraph 34 of the present judgment, such an assessment is also valid where the court ruling on an exceptional appeal heard under an urgent procedure does not have the power to order interim measures, inter alia, instructing the competent authorities to take a new decision with a view to issuing the residence permit for study purposes applied for.

40However, as has been recalled in paragraph 35 of the present judgment, the Court has stated that, where the court hearing the case has only a power to annul, it must be ensured that the conditions under which the appeal before it is brought and, where appropriate, the judgment adopted at the end of that action is implemented are such that they allow, in principle, a new decision to be adopted within a short period of time, in such a way that a sufficiently diligent third-country national can benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801.

42That said, it is apparent from the order for reference that some third-country nationals do not receive a decision on their application for admission to Belgian territory for study purposes until shortly before the start of the academic year they wish to spend in Belgium. Accordingly, it must be held that the possibility for the competent authorities, following the annulment of that initial decision, to take a new decision within a short period of time, in such a way that a sufficiently diligent third-country national can benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801, also depends on the conditions relating to the adoption of that initial decision.

43In that regard, under Article 34(1) of that directive, the competent authorities of the Member State concerned must adopt a decision on the application for admission to the territory of that Member State for study purposes as soon as possible, but not later than 90 days from the date on which the complete application was submitted. Furthermore, in accordance with Article 34(3), where the information or documentation supplied in support of the application is incomplete, the competent authorities are to notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it, which has the effect of suspending the time limit laid down in Article 34(1) until the competent authorities have received the additional information required.

44As has been recalled in paragraphs 24 and 25 of the present judgment, in order to benefit from the rights deriving from Article 5(3) of Directive 2016/801, in this case the authorisation to reside on the territory of a Member State for study purposes, the third-country national concerned must have satisfied the general conditions laid down in Article 7 of that directive and the specific conditions applicable to students, provided for in Article 11 thereof for applications for admission for study purposes, the latter conditions including the condition that the third-country national has been accepted by a higher education institution to follow a course of study.

45In that context, the adoption by the competent authorities, in compliance with the time limit laid down in Article 34(1) of Directive 2016/801, of a decision on applications for admission to the territory of a Member State for study purposes makes it possible, in principle, to guarantee the effectiveness of the rights which those nationals derive from that directive, provided that the procedure for the examination by the competent authorities of applications for admission to the territory of a Member State for study purposes does not, in practice, have the effect of systematically depriving third-country nationals whose applications have been rejected of the possibility of benefiting, where appropriate, from the full effectiveness of those rights, on account of the date on which the decisions relating to those applications are adopted and having regard to the irreducible time limits of any appeal procedure challenging those decisions.

46In the light of all the foregoing considerations, the answer to the questions referred is that Article 34(5) of Directive 2016/801, read in the light of Article 47 of the Charter, must be interpreted as not requiring, as regards the action by which a third-country national, in order to assert the rights he or she derives from Article 5(3) of that directive, seeks to challenge the decision of the competent authorities rejecting his or her application for admission to the territory of the Member State concerned for study purposes:

–that an exceptional appeal heard under an urgent procedure is afforded to such a national where, even though he or she has exercised due diligence, compliance with the time limits relating to the ordinary procedure for reviewing that decision could hinder the progress of his or her studies;

–that, in the context of such an exceptional appeal, the court hearing the case has the power to order, where appropriate, interim measures, inter alia, instructing the competent authorities to take a new decision with a view to issuing the residence permit for study purposes applied for, or

–that the court hearing an appeal against that decision has the power to substitute its own assessment for that of those authorities or to adopt a new decision.

47The conditions under which an appeal against a decision of the competent authorities rejecting an application for admission to the territory of a Member State for study purposes is brought and, where appropriate, the judgment adopted at the end of that appeal is implemented must, however, be such as to allow a new decision to be adopted within a short period of time, in accordance with the assessment contained in the judgment annulling that decision, in such a way that a sufficiently diligent third-country national is able to benefit from the full effectiveness of the rights which he or she derives from that directive.

Costs

48Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Article 34(5) of Directive (EU) 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, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as not requiring, as regards the action by which a third-country national, in order to assert the rights he or she derives from Article 5(3) of that directive, seeks to challenge the decision of the competent authorities rejecting his or her application for admission to the territory of the Member State concerned for study purposes:

–that an exceptional appeal heard under an urgent procedure is afforded to such a national where, even though he or she has exercised due diligence, compliance with the time limits relating to the ordinary procedure for reviewing that decision could hinder the progress of his or her studies;

–that, in the context of such an exceptional appeal, the court hearing the case has the power to order, where appropriate, interim measures, inter alia, instructing the competent authorities to take a new decision with a view to issuing the residence permit for study purposes applied for, or

–that the court hearing an appeal against that decision has the power to substitute its own assessment for that of those authorities or to adopt a new decision.

The conditions under which an appeal against a decision of the competent authorities rejecting an application for admission to the territory of a Member State for study purposes is brought and, where appropriate, the judgment adopted at the end of that appeal is implemented must, however, be such as to allow a new decision to be adopted within a short period of time, in accordance with the assessment contained in the judgment annulling that decision, in such a way that a sufficiently diligent third-country national is able to benefit from the full effectiveness of the rights which he or she derives from that directive.

[Signatures]

Language of the case: French.

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