According to the Court of Justice of the EU, failure to transpose a directive does not prevent a Member State from applying the principle on abusive practices set out in the directive in question. It published a judgment (C-14/23) to this effect on Tuesday, 30 July, in response to the Belgian Council of State’s request for an opinion, which was expressed in November 2023.
The Belgian State refused to grant a Cameroonian national a student visa on the grounds that her plan of study was inconsistent, thus constituting an abusive practice under the 2016 EU directive on the conditions of entry and residence for study purposes. The young woman challenged this decision before the Council for Asylum and Immigration Proceedings, which rejected her appeal, after which she brought the matter before the Belgian Council of State.
Firstly, she argues that Belgium has not transposed the directive in question. Secondly, she challenges the justification that her plan of study is inconsistent.
For the Court [of Justice], the prohibition of abusive practices is nevertheless a general principle of EU law, and its application is not subject to a requirement of transposition.
Moreover, Belgium can use inconsistencies in a plan of study as a basis [for its decision in a case] as long as they are “apparent”.
See the judgment: https://aeur.eu/f/d69 (Original version in French by Léa Marchal)