# C_2005006EN.01000702.xml

| 8.1.2005 | EN | Official Journal of the European Union | C 6/7 |
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8.1.2005

EN

Official Journal of the European Union

C 6/7

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Grand Chamber)

of 16 November 2004

in Case C-327/02 (reference for a preliminary ruling from the Rechtbank te 's-Gravenhage): Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie (1)

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(Association Agreements between the Communities and, respectively, Bulgaria, Poland and Slovakia - Right of establishment - National legislation under which applications for full residence permits with a view to establishment are rejected without examination where the applicant lacks a temporary residence permit)

(2005/C 6/12)

Language of the case: Dutch

In Case C-327/02: reference for a preliminary ruling under Article 234 EC from the Rechtbank te 's-Gravenhage (Netherlands), made by decision of 16 September 2002, received at the Court on 18 September 2002, in the proceedings between Lili Georgieva Panayotova, Radostina Markova Kalcheva, Izabella Malgorzata Lis, Lubica Sopova, Izabela Leokadia Topa, Jolanta Monika Rusiecka and Minister voor Vreemdelingenzaken en Integratie — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and R. Silva de Lapuerta (Presidents of Chambers), J.-P. Puissochet (Rapporteur), R. Schintgen, S. von Bahr and J.N. Cunha Rodrigues, Judges; M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 16 November 2004, in which it has ruled:

| 1. | Articles 45(1) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, approved by Decision 94/908/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, Articles 44(3) and 58(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, approved by Decision 93/743/EC, ECSC, Euratom of the Council and the Commission of 13 December 1993, read together, and Articles 45(3) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, approved by Decision 94/909/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, do not in principle preclude legislation of a Member State involving a system of prior control which makes entry into the territory of that Member State with a view to establishment as a self-employed person conditional on the issue of a temporary residence permit by the diplomatic or consular services of that Member State in the country of origin of the person concerned or in the country where he is permanently resident. Such a system may legitimately make grant of that permit subject to the condition that the person concerned must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success. The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings. |
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1.

Articles 45(1) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, approved by Decision 94/908/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, Articles 44(3) and 58(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, approved by Decision 93/743/EC, ECSC, Euratom of the Council and the Commission of 13 December 1993, read together, and Articles 45(3) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, approved by Decision 94/909/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, do not in principle preclude legislation of a Member State involving a system of prior control which makes entry into the territory of that Member State with a view to establishment as a self-employed person conditional on the issue of a temporary residence permit by the diplomatic or consular services of that Member State in the country of origin of the person concerned or in the country where he is permanently resident. Such a system may legitimately make grant of that permit subject to the condition that the person concerned must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success. The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings.

| 2. | Those provisions of the Association Agreements must be interpreted as likewise not in principle precluding such national legislation from providing that the competent authorities of the host Member State are to reject an application for a full residence permit with a view to establishment in accordance with the Association Agreements submitted in the territory of that State when the applicant lacks the temporary residence permit thus required by that legislation. |
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2.

Those provisions of the Association Agreements must be interpreted as likewise not in principle precluding such national legislation from providing that the competent authorities of the host Member State are to reject an application for a full residence permit with a view to establishment in accordance with the Association Agreements submitted in the territory of that State when the applicant lacks the temporary residence permit thus required by that legislation.

| 3. | It is immaterial in this regard that the applicant claims to satisfy clearly and manifestly the necessary substantive requirements for grant of the temporary residence permit and the full residence permit with a view to such establishment or that the applicant is legally resident in the host Member State on another basis on the date of his application where it appears that the latter is incompatible with the express conditions attached to his entry into that Member State and in particular those relating to the authorised duration of the stay. |
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3.

It is immaterial in this regard that the applicant claims to satisfy clearly and manifestly the necessary substantive requirements for grant of the temporary residence permit and the full residence permit with a view to such establishment or that the applicant is legally resident in the host Member State on another basis on the date of his application where it appears that the latter is incompatible with the express conditions attached to his entry into that Member State and in particular those relating to the authorised duration of the stay.

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(1)  OJ C 274 of 9.11.2002.

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