BVerwG: German embassied have a" wide discretion" to issue Schengen visas

The press statement of the Federal Administrative Court contains the following content:The responsible German embassies have a "wide discretion" (German "Beurteilungsspielraum") in assessing Schengen visa applications, which includes the interpretation of grounds for refusal and relevant facts. This was decided by the ECJ in the judgment of December 19, 2013 (C-84/12, Koushkaki). As a consequence, the administrative courts can only review negative decisions in a limited manner. According to the EU principle of member states' procedural autonomy, each EU member state defines the development of legal proceedings and the level of judicial control density within its legal system. However, the ECJ has justified the "wide discretion" of the embassies due to the complexity of the review process, prognostic factors involved, and the close contact of the embassies with the respective country. These requirements must be considered in the judicial review under national law, aligning with the standards applied under German law when reviewing cases in an administrative proceeding.The full reasons for the decision of the German Federal Administrative Court are currently being drafted. In my view, this decision should be subject to review by the ECJ. I believe that the German decision may be in violation of European law, as per the ECJ judgment of December 19, C-84/12, Rahmanian Koushkaki vs. Federal Republic of Germany, point 75. The "Beurteilungsspielraum" (discretion) of Germany is not entirely controllable by the German administrative courts, leading to a unique perspective that might not align with European Union law. However, the ECJ emphasizes the need for conformity of all national decisions with the requirements of European Union law.

ECJ Case C 84/12, Rahmanian Koushkaki v Federal Republic of Germany

A German embassy can only reject issuing a 'Schengen-Visa' if it is expressly regulated in the EU Visa Code.

National authorities have a wide discretion in determining visa rejection reasons, but it is not an exclusive discretion beyond the control of the administrative court.

Prior to the decision of the European Court of Justice (ECJ), officers in German embassies had the practice of deciding visa applications based on their own exclusive discretion. Some judges of the chambers in the responsible Berlin administrative court believed that there was almost no possibility to control this administrative discretion, except when the embassy did not use any discretion or used it incorrectly. However, this legal situation has changed. The ECJ judges ruled that the legal regulations of the EU Visa Code consist of indeterminate legal concepts, which can be fully examined and assessed by the court.

For Schengen visa applications, including tourist or visit visas, the applicant should be aware of the following. To have a chance of obtaining the visa, the applicant must demonstrate strong ties to their home country and prove their willingness to return based on their economic and social situation. As such, an application for a 'Schengen-visa' requires careful preparation. It is vital to submit documents supporting these ties and intentions to return home. Explaining and providing evidence of family situation, property, income, and other relevant grounds is essential. Unfortunately, German embassies do not always provide detailed advice, even though it is part of their duty. If you are uncertain about your eligibility to apply for a visa, seeking guidance from a knowledgeable visa lawyer who can assess the specifics of your case is highly recommended.