timeframe for appointment for Schengen visa enforceable?

[ca.funke]

Hi all,

I wonder how far the following rules are binding:

The >>Visacodex<< sais:

CHAPTER II
Application
Article 9
Practical modalities for lodging an application

1. Applications shall be lodged no more than three months before the start of the intended visit. (...)

2. (...)The appointment shall, as a rule, take place within a period of two weeks from the date when the appointment was requested.

The >>Visahandbook<< sais:

3.2.2. What is the maximum deadline for obtaining an appointment?
Legal basis: Visa Code, Article 9(2)
The deadlines for obtaining an appointment shall as a rule not exceed two weeks. The
capacity of Member States' consulates to handle visa applications should be adapted so that
this deadline is complied with even during peak seasons.

[list][*]Does this mean that everyone is definitely entitled to an appointment within two weeks, or does the "shall as a rule"-part leave this open to arbitrary deferral?

[*]If the 2 weeks are binding, how good would you think are chances to claim compensation for damages in the form of ticket prices which increased over the -illegal- delay beyond 2 weeks (in my specific case 10(!) weeks)?[/list]

Little extra for those who speak German: The German translation >>Visahandbuch<< sounds much more binding: (the meaning changes, IMHO, completely)

3.2.2. Welcher Zeitraum darf höchstens zwischen Terminvereinbarung und Termin liegen?
Rechtsgrundlage: Visakodex - Artikel 9 Absatz 2
Ein Termin muss innerhalb von höchstens zwei Wochen erhältlich sein. Die Kapazitäten der
Konsulate der Mitgliedstaaten für die Bearbeitung von Visumanträgen sind so anzupassen,
dass diese Frist auch in Stoßzeiten eingehalten werden kann.

3.2.2. What is maximum period between "scheduling an appointment" an the appointment itself?
Legal basis: Visa Code, Article 9(2)
An appointment must be available within two weeks. The capacity of Member States' consulates
to handle visa applications must be adapted so that this deadline is complied with even during peak
seasons.

[acme4242]

[list][*]Does this mean that everyone is definitely entitled to an appointment within two weeks, or does the "shall as a rule"-part leave this open to arbitrary deferral?

[*]If the 2 weeks are binding, how good would you think are chances to claim compensation for damages in the form of ticket prices which increased over the -illegal- delay beyond 2 weeks (in my specific case 10(!) weeks)?[/list]

Hi Christian,

Well the Handbook of instructions to be followed by Schengen state
consulates who issue Schengen visas makes it very clear.

If an appointment system is nevertheless in place, separate call lines (at ordinary local tariff)
to the consulate should be put at the disposal of family members respecting comparable
standards to those of "premium lines", i.e. the availability of such lines should be of standards
comparable to those in place for other categories of applicants and an appointment must be
allocated without delay.

Processing times for a visa application lodged by a third-country national who is a family
member of an EU citizen covered by the Directive going beyond 15 days should be
exceptional and duly justified.

But as you see yourself in an earlier post >here< the people who makes the EU rules, the EU commission,
now seem to endorse despot Consulates to make their own rules for EU citizens and their family. arbitrarily, based on
random choice or personal whim, rather than any reason or system.

The only way to make such consulates shape up would be, indeed, if they had
to compensate for violations, But how can tiny citizens do this ? against
mighty State organs.

[ca.funke]

Hi acme4242,

I still have two problems to proceed with this:

• Firstly I´m not sure how far the "handbook" is binding law, actually I guess it isn´t...?
• Secondly, in each and every sentence that I´d need to use, the wording is "should" rather than "must", as such even if it´s a law the embassy can always claim an "exception"...
  
  • Example taken from your quote: "separate call lines (at ordinary local tariff) to the consulate should be put at the disposal"
  • So the embassy can say, quite simply, we acknowledge it "should" be in place, but we decided otherwise.

The only way to make such consulates shape up would be, indeed, if they had to compensate for violations, But how can tiny citizens do this ? against mighty State organs.

I´ve been to court once so far, and on paper it looked frightening:

me ./. Kingdom of the Netherlands

But the judge was some relaxed old guy, and in court both parties can talk, and the judge listenes equally - and after just 5 minutes the case was finished and I won (Only problem: This was against a EUR 40 parking-ticket, which I got in an unjustified manner, not a visa-issue(I was a student at the time, and EUR 40 seemed a lot to me!))

Summary: If I only knew that this can be won, I wouldn´t hesitate going to court.

[acme4242]

The handbook says the following on the first page

(Only the Bulgarian, Czech, Dutch, Estonian, Finnish, French, German, Greek,
Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian,
Slovak, Slovenian, Spanish and Swedish texts are authentic)

This is a little unusual, does this mean the English version is inauthentic ?

Because, as you mention (I'll take your word for it) there is different meaning in the German and English version.

From what I can read, the Visa Code is legally binding, but the Handbook
is not. But gives operational instructions.

[ca.funke]

This is a little unusual, does this mean the English version is inauthentic ?

Because, as you mention (I'll take your word for it) there is different meaning in the German and English version.

Hi acme4242,

I thought you´re German yourself? Anyway, I added a translation of the German "Handbuch" in my first post, translating as exactly as I can.

German "muss" = English "must", actually that´s all there is to say...

[86ti]

I thought you´re German yourself? Anyway, I added a translation of the German "Handbuch" in my first post, translating as exactly as I can.

German "muss" = English "must", actually that´s all there is to say...

But you know that "shall" in legalese also implies mandatory action (=must)?

[ca.funke]

But you know that "shall" in legalese also implies mandatory action (=must)?

No, I didn´t know... Thanks!

So if it is binding, how can it be enforced? And can I claim compensation as per original question?

[Stefan-TR]

This is a little unusual, does this mean the English version is inauthentic ?

The English version of the visa codex is of no specific interest, as the only English speaking EU member states UK and IRL are no full Schengen members and as such do their own thing with regards to visas anyway.

[Directive/2004/38/EC]

So if it is binding, how can it be enforced? And can I claim compensation as per original question?

This is an interesting question. I am not a lawyer, so the following is very approximate.

In general for you to take legal action, you need to have standing (i.e. have been directly affected by the issue). I think it helps to have been (financially) injured by the situation.

You need to be able to have access to the party you want to sue. If I wanted to sue the Spanish embassy in the UK, though they are physically located in the UK I am not sure they are (in normal situations) answerable to the courts in the UK. It may require an intervention by the UK government to allow you to sue there.

Keeping with the Spanish story, you could instead sue them in a Spanish court, but if you are not in Spain that makes it more expensive and you would need a good lawyer.

The easiest thing for local access is to sue in Small Claims court. But they may not know the issues required to deal with application of EC Regulations, EC Directives, and their transposition into local law.

There was a while when Residence Cards were not being issued within the required 6 month period in Ireland, and the Irish were not issuing temporary work permits for family of EU citizens. I am very surprised that I never heard of anyone who sued for compensation equivalent to their lost wages (+ damages) for the period.

[ca.funke]

Hi Directive/2004/38/EC,

thanks for your answer!

We decided that we will actually go ahead. I found out the basis in Swiss law (unfortunately all in German), and I guess we have a pretty good chance of winning.

What we will do: We will wait until my brother-in-law´s visa is approved (or not). If it´s not approved we don´t have a damage.

If his visa is approved, we will sue the state for the difference in the flightprice between the time the visa should have been issued and the time it actually was issued.

If anyone´s interested I´ll post the legal basis on which we´re planning to do this, but like I said it´s all in German.

Thanks again and regards,
Christian

[Directive/2004/38/EC]

Dieses ist ein "European immigration forum". Deutsch (oder Dinglish) ist also, OK! :-)

Note that you likely would not have standing in court. It is the visa applicant who may have been injured by failure to apply the law.

[ca.funke]

OK - so here we go.

First, because the visa-applicant isn´t resident here, he´ll sign a "power of attorney" for me, so I can represent him in court.

Next, the >>Visahandbook<< sais:

3.2.2. What is the maximum deadline for obtaining an appointment?
Legal basis: Visa Code, Article 9(2)
The deadlines for obtaining an appointment shall as a rule not exceed two weeks. The
capacity of Member States' consulates to handle visa applications should be adapted so that
this deadline is complied with even during peak seasons.

As per first post, the German version sais "An appointment must be available within two weeks", furthermore 86ti said

But you know that "shall" in legalese also implies mandatory action (=must)?

so I think this is pretty clear.

Then the "Visahandbook" is a >>Commission decision<< (German >>Beschluss der Kommisson<<), and as such I think it is actually binding.

Now we come to the parts in Swiss law, where I have no official translation:

Art. 146 Staatshaftung

Der Bund haftet für Schäden, die seine Organe in Ausübung amtlicher Tätigkeiten widerrechtlich verursachen.

The federal government is liable for damages, which its organs unlawfully cause while performing their duties.

Bundesgesetz über die Verantwortlichkeit des Bundes sowie seiner Behördemitglieder und Beamten

Art. 3

1 Für den Schaden, den ein Beamter in Ausübung seiner amtlichen Tätigkeit Dritten widerrechtlich zufügt, haftet der Bund ohne Rücksicht auf das Verschulden des Beamten.

The federal government is liable for damages which an official causes against third parties while performing his duties, without prejudice as to the fault of the official.

Bundesgesetz über die Verantwortlichkeit des Bundes sowie seiner Behördemitglieder und Beamten

Art. 10

1 Über streitige Ansprüche des Bundes oder gegen den Bund erlässt die zuständige Behörde eine Verfügung. Das Beschwerdeverfahren richtet sich nach den allgemeinen Bestimmungen über die Bundesrechtspflege.2

2 Über streitige Ansprüche auf Schadenersatz und Genugtuung aus der Amtstätigkeit von Personen im Sinne von Artikel 1 Absatz 1 Buchstaben a–cbis urteilt das Bundesgericht als einzige Instanz im Sinne von Artikel 120 des Bundesgerichtsgesetzes vom 17. Juni 2005. Die Klage gegen den Bund kann beim Bundesgericht erhoben werden, wenn die zuständige Behörde zum Anspruch innert dreier Monate seit seiner Geltendmachung nicht oder ablehnend Stellung genommen hat.

Summary: The claim has to be directed to the "guilty" authority first. If they reply "not guilty" or don´t reply within 3 months, the claim can be submitted to the federal court.

So we took screenshots of the flight-price at the time when the visa should have been issued, and we will have proof of the new price when we´ll actually book it.

Next I´ll send a summary to the "Departement für Auswärtige Angelegenheiten", outlining the case in full and asking for compensation. If they don´t pay or don´t reply at all, I´ll take it to court after having waited the said 3 months.

If it can be done without a lawyer I´ll do it myself, if it needs a lawyer I´ll go through the lawyer.

But first, let´s see if the visa is approved at all...

Any thoughts welcome, of course!

[Directive/2004/38/EC]

http://ec.europa.eu/home-affairs/polici ... isa_en.htm is the general Schengen home page, at least in a reference documentation point of view.

For both the handbook of processing visa instructions and the handbook of running a visa section it says:

The handbook contains operational instructions for the application of the Visa Code. It neither creates any legally binding obligations upon Member States nor establishes any new rights and obligations for the persons who might be concerned by it.

It is nice cover your butt language at least.

I am also not so sure that a court will let you present evidence of somebody else. At the very least you may have to get an affidavit which contains her testimony, but I suspect she will need to be involved. Probably depends on what kind of court it is, and their rules.

[ca.funke]

For both the handbook of processing visa instructions and the handbook of running a visa section it says:

The handbook contains operational instructions for the application of the Visa Code. It neither creates any legally binding obligations upon Member States nor establishes any new rights and obligations for the persons who might be concerned by it.

Hi Directive,

thanks for your feedback, now I´m totally confused:

The visa handbook starts out (first two words):

"Commission Decision"

Next I saw (sorry for not having a better source) in Wikipedia:

A decision, defined in Article 288 of the Treaty on the Functioning of the European Union (formerly Article 249 TEC), is one of the three binding instruments provided by secondary EU legislation. A decision is binding on the person or entity to which it is addressed.

Does anyone know if the visahandbook is binding, being a decision, or not?

[ca.funke]

The visa was approved, the visit is over by now, and I´m planning to sue Switzerland for EUR 100 in raised ticket-prices.

Not so much for the EUR 100, more to make sure they won´t do this again.

To establish the likelihood of winning, I complained to the Commission (my favourite hobby) about delayed visa-applications.

Since Switzerland is not in the EU I filed two complaints:

• One about Germany delaying visa applications.
  • With special thanks to the German Embassy in Bogotá(Colombia).
  • They clearly state on their >>website<< that it takes 10 weeks to be allowed to file an application, which should be clearly against the law.
  • Just in case they change their website, >>here<< is a Screenshot taken 13th July 2011.
• One about Switzerland
  • I´m still not sure if these laws apply to them since they´re not EU.

Replies so far:

• Complaint against Germany is registerd under handling number CHAP(2011)01750
  • If I get further replies I´ll update this thread
• Complaint against Switzerland
  • They will check if the Commission in responsible for following up on this, since it concerns CH and not EU... Let´s see...

[ca.funke]

...

[ca.funke]

I filed a claim for compensation to the Ministry of Foreign Affairs.

To my surprise I got an answer today.

My original request is in German, the reply is a German/French mix. It´s too much to translate everything, so I´ll provide the original versions and give an English summary.

I´d love to know if I should proceed:

Ich plante meine Schwester (...) und ihren Ehemann (...) vom 11. bis 17. Juni 2011 in der Schweiz zu besuchen.

Als libanesischer Staatsangehöriger brauche ich für diesen Besuch ein Visum.

Der Antrag für dieses Visum darf laut Gesetz höchstens drei Monate vor Antritt der geplanten Reise eingereicht werden. (Verordnung (EG) Nr. 810/2009 des Europäischen Parlaments und des Rates vom 13. Juli 2009 über einen Visakodex der Gemeinschaft (Visakodex), Artikel 9, ) (Anlage I)

Um einen Visumsantrag überhaupt einreichen zu dürfen, brauche ich einen Termin. Laut Gesetz muss dieser Termin innerhalb von höchstens zwei Wochen erhältlich sein, wobei die Kapazitäten der Konsulate der Mitgliedstaaten für die Bearbeitung von Visumanträge sind so anzupassen sind, dass diese Frist auch in Stoßzeiten eingehalten werden kann. ("Beschluss der Kommission", Visahandbuch, Abschnitt 3.2.2.) (Anlage II)

Mein Visumsantrag für den geplanten Besuch wurde durch die Schweizerische Botschaft in Beirut um nachweisbar 4 Wochen verzögert.

Aufgrund der von der Botschaft verschuldeten -unrechtmäßigen- Verzögerung konnte ich den Flug erst später als geplant buchen. In der Zwischenzeit ist der Preis des Fluges gestiegen. Diese Preisdifferenz ist der zu ersetzende Schaden.

I planned to visit my sister and her husband in Switzerland from June 11th to June 17th.

As a Lebanese citizen, I need a visa for this visit.

By law the application for this visa must be "submitted no earlier than three months before the start of the planned journey." (Regulation (EC) No 810/2009 of the European Parliament and the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), Article 9) (...)

To be allowed to submit a visa application, I need an appointment. By law, this appointment "must be available within 2 weeks," and the "Capacities of Member States' consulates to process visa applications" should be adjusted so that "this period may be maintained even during peak times." ("Decision of the Commission "Visa manual, section 3.2.2.) (...)

The Swiss Embassy in Beirut delayed my visa application for the planned visit by 4 weeks.

Because of this - illegal - delay, imposed on me by the Embassy, I had to book my flight later than planned. In the meantime, the price of the flight has increased. This price difference is the damage to be compensated.

Of course this is followed by all necessary details, such as when did he call, what did they do etc...

The original reply >>.pdf<<.

There´s much more in the original, but I can´t translate all that! Quick summary (as I understand it):

While what you say is correct and should not have happened, the law is as follows:

There is a Visa Codex, which is binding law. However, the Visa Codex sais the following: "The appointment should, as a rule, be given within 2 weeks". "As a rule" does not imply a binding requirement.

Although the visahandbook sets out a binding 2-week rule, the visahandbook is not in itself binding law but only a recommendation.

As such your claim would probably be negated.

Next, and that´s why I´m posting, they tell me what I have to do to turn this into an official claim. Any official claim, if negated, would be costing me between CHF 100 and CHF 7000.

Any replies would be greatly appreciated!

[Directive/2004/38/EC]

Quick summary:

While what you say is correct and should not have happened, the law is as follows:

There is a Visa Codex, which is binding law. However, the Visa Codex sais the following: "The appointment should, as a rule, be given within 2 weeks". "As a rule" does not imply a binding requirement.

Although the visahandbook sets out a binding 2-week rule, the visahandbook is not in itself binding law but only a recommendation.

As such your claim would probably be negated.

Next, and that´s why I´m posting, they tell me what I have to do to turn this into an official claim. Any official claim, if negated, would be costing me between CHF 100 and CHF 7000.

So they want you to submit an "official claim" if you want to proceed? What is the fee for submitting it?

I would probably try to call the person who wrote the letter and see what they suggest...

It is a great excuse to make your introduction!

[ca.funke]

FYI: I uploaded the original reply by now, see link to .pdf above.

So they want you to submit an "official claim" if you want to proceed? What is the fee for submitting it?

Hi Directive,

the fee for submitting is 0, however if it´s refused the fee is "between CHF 100 and CHF 7000". I have no clue how I can find out how much it would be.

I am asked to transfer CHF 500 immediately. Reason is that the plaintiff (=my brother in law) doesn´t live in Switzerland, hence they want an advance. In a positive outcome I´d get that back, of course.

I would probably try to call the person who wrote the letter and see what they suggest...

It is a great excuse to make your introduction!

Will do. As usual: Feedback guaranteed!