Odwołanie od decyzji konsula RP w sprawach wizowych – podstawy właściwości rzeczowej sądów administracyjnych na tle orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej i Naczelnego Sądu Administracyjnego
Appeal against the decision of the consul of the Republic of Poland in visa matters – grounds for material competence of administrative courts against the background of the judgments of the Court of Justice of the European Union and the Supreme Admin

Summary/Abstract: The article is the result of an analysis of the Polish and European legal order in the field of visas and the possibility of appealing against refusals issued by visa authorities, especially by the consul of the Republic of Poland. The author takes a closer look at the regulations of consular law existing until recently, repealed as a result of doubts about their constitutionality, confirmed by the Constitutional Court, and also raises the issue of the distinctiveness of proceedings before the consul of the Republic of Poland being the subject of the Act of 25 June 2015 – Consular Law. Along with pointing out the distinctiveness of proceedings before the consul, the author draws attention to the norm prejudging the exclusion of the application of the Code of Administrative Procedure “in cases belonging to the jurisdiction of Polish diplomatic representations and consular offices” (art. 3 § 2 pkt 4 k.p.a.) and to the norm contained in art. 5 pkt 4 of the Act of 30 August 2002. Law on Proceedings before Administrative Courts (PPSA), referring directly to the lack of jurisdiction of administrative courts in cases concerning previously all visas issued by the minister in charge of foreign affairs or consuls, and now only national visas for most purposes for which such can be issued. The author also takes a closer look at the content of the decision of the Supreme Administrative Court (NSA) II OSK 1346/16 and the judgment of the CJEU in response to the preliminary question in the Soufianne El Hassani case, which together led to a reflection on the primacy of the application of European law and the guarantees contained therein, which cannot be restricted by the law of a Member State, and ultimately became the catalyst for changes in the PPSA allowing an appeal against a refusal decision of a Polish consul to an administrative court. In the conclusion following the analysis of judgment of the CJEU C-949/19, which confirmed the jurisdiction of administrative courts over certain national visas, the author made de lege ferenda comments.

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