Opinion of the Advocate General — ECLI:EU:C:2001:251
Date: 2001-05-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Association Agreement;Right of establishment;External relations
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. International agreements — Agreements concluded by the Community — Direct 
effect — Conditions — Article 44(3) of the Association Agreement between the 
Communities and Poland 
(Association Agreement between the Communities and Poland, Arts 44(3) and 5S(1)) 
I-8615 
SUMMARY — CASE C-268/99 
2. International agreements •— Agreements concluded by the Community — Direct 
effect — Conditions — Article 45(3) of the Association Agreement between the 
Communities and the Czech Republic 
(Association Agreement between the Communities and the Czech Republic, Arts 45(3) 
and 59(1)) 
3. International agreements — Association Agreement between the Communities and 
Poland — Right of establishment — Right implying rights of entry and residence — 
Limits on the exercise of those rights 
(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1)) 
4. International agreements — Association Agreement between the Communities and the 
Czech Republic — Right of establishment — Right implying rights of entry and 
residence — Limits on the exercise of those rights 
(Association Agreement between the Communities and the Czech Republic, Arts 45(3) 
and 59(1)) 
5. International agreements — Association Agreement between the Communities and 
Poland — Right of establishment — Right implying rights of entry and residence —• 
Limits on the exercise of those rights — National system of prior control making the 
issue of an entry and residence permit subject to substantive conditions — Whether 
permissible 
(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1)) 
6. International agreements — Association Agreement between the Communities and the 
Czech Republic — Right of establishment •—• Right implying rights of entry and 
residence — Limits on the exercise of those rights — National system of prior control 
making the issue of an entry and residence permit subject to substantive conditions — 
Whether permissible 
(Association Agreement between the Communities and the Czech Republic, Arts 45(3) 
and 59(1)) 
7. International agreements •— Association Agreement between the Communities and 
Poland — Right of establishment — 'Economic activities as self-employed per­
sons' — Concept having the same meaning and scope as 'activities as self-employed 
persons' in Article 52 of the Treaty (now, after amendment, Article 43 EC) 
(EC Treaty, Article 52 (now, after amendment, Article 43 EC); Association Agreement 
between the Communities and Poland, Art. 44(4)(a)(i)) 
I -8616 
JANY AND OTHERS 
8. International agreements — Association Agreement between the Communities and 
the Czech Republic — Right of establishment — 'Economic activities as self-
employed persons' — Concept having the same meaning and scope as 'activities as 
self-employed persons' in Article 52 of the Treaty (now, after amendment, Arti­
cle 43 EC) 
(EC Treaty, Article 52 (now, after amendment, Article 43 EC); Association Agreement 
between the Communities and the Czech Republic, Art. 45(4)(a)(i)) 
9. International agreements — Association Agreement between the Communities and 
Poland — Right of establishment —· Derogations — Public policy grounds — Cri­
teria 
(Association Agreement between the Communities and Poland, Art. 53) 
10. International agreements — Association Agreement between the Communities and 
the Czech Republic —· Right of establishment — Derogations — Public policy 
grounds — Criteria 
(Association Agreement between the Communities and the Czech Republic, Art. 54) 
11. International agreements — Association Agreement between the Communities and 
Poland — Right of establishment — 'Economic activities as self-employed per­
sons' — Prostitution — Included — Conditions — Assessment by the national 
court 
(Association Agreement between the Communities and Poland, Art. 44) 
12. International agreements — Association Agreement between the Communities and 
the Czech Republic — Right of establishment — 'Economic activities as self-
employed persons' — Prostitution — Included — Conditions — Assessment by 
the national court 
(Association Agreement between the Communities and the Czech Republic, Art. 45) 
1. Article 44(3) of the Association Agree­
ment between the Communities and 
Poland, which prohibits Member States 
from discriminating, in matters relating 
to establishment, against Polish nation­
als on the ground of their nationality, 
must be construed as establishing, 
within the scope of application of that 
Agreement, a precise and uncondi­
tional principle which is sufficiently 
operational to be applied by a national 
court and which is therefore capable of 
governing the legal position of indivi­
duals. The direct effect which that 
provision must therefore be recognised 
as having means that Polish nationals 
relying on that provision have the right 
to invoke it before the courts of the 
host Member State, notwithstanding 
the fact that the authorities of that 
State remain competent to apply to 
those nationals their own national laws 
and regulations regarding entry, stay 
and establishment, in accordance with 
Article 58(1) of that Agreement. 
(see para. 28 and operative part 1) 
I -8617 
SUMMARY — CASE C-268/99 
2. Article 45(3) of the Association Agree­
ment between the Communities and 
the Czech Republic, which prohibits 
Member States from discriminating, in 
matters relating to establishment, 
against Czech nationals on the ground 
of their nationality, must be construed 
as establishing, within the scope of 
application of that Agreement, a pre­
cise and unconditional principle which 
is sufficiently operational to be applied 
by a national court and which is there­
fore capable of governing the legal 
position of individuals. The direct 
effect which that provision must there­
fore be recognised as having means that 
Czech nationals relying on that provi­
sion have the right to invoke it before 
the courts of the host Member State, 
notwithstanding the fact that the 
authorities of that State remain com­
petent to apply to those nationals their 
own national laws and regulations 
regarding entry, stay and establish­
ment, in accordance with Article 59(1) 
of that Agreement. 
(see para. 28 and operative part 1) 
3. The right of establishment, as defined 
by Article 44(3) of the Association 
Agreement between the Communities 
and Poland, means that rights of entry 
and residence, as corollaries of the 
right of establishment, are conferred 
on Polish nationals wishing to pursue 
activities of an industrial or commer­
cial character, activities of craftsmen or 
activities of the professions in a Mem­
ber State. However, it follows from 
Article 58(1) of that Agreement that 
those rights of entry and residence are 
not absolute privileges, inasmuch as 
their exercise may, in some circum­
stances, be limited by the rules of the 
host Member State governing the entry, 
stay and establishment of Polish 
nationals. 
(see para. 28 and operative part 2) 
4. The right of establishment, as defined 
by Article 45(3) of the Association 
Agreement between the Communities 
and the Czech Republic, means that 
rights of entry and residence, as cor­
ollaries of the right of establishment, 
are conferred on Czech nationals wish­
ing to pursue activities of an industrial 
or commercial character, activities of 
craftsmen or activities of the profes­
sions in a Member State. However, it 
follows from Article 59(1) of that 
Agreement that those rights of entry 
and residence are not absolute privi­
leges, inasmuch as their exercise may, 
in some circumstances, be limited by 
the rules of the host Member State 
governing the entry, stay and establish­
ment of Czech nationals. 
(see para. 28 and operative part 2) 
I -8618 
JANY AND OTHERS 
5. On a joint reading, Articles 44(3) and 
58(1) of the Association Agreement 
between the Communities and Poland, 
which respectively prohibit Member 
States from discriminating, in matters 
relating to establishment, against Pol­
ish nationals on the ground of their 
nationality, and set out the powers of 
the host Member State to apply 
national rules on entry, residence and 
establishment, subject to the condition 
that they do not render it impossible or 
excessively difficult for Polish nationals 
to exercise the rights granted to them 
under Article 44(3), do not in principle 
preclude a national system of prior 
control which makes the issue by the 
competent immigration authorities of 
leave to enter and remain subject to the 
condition that the applicant must show 
that he genuinely intends to take up an 
activity as a self-employed person with­
out at the same time entering into 
employment or having recourse to 
public funds, and that he possesses, 
from the outset, sufficient financial 
resources and has reasonable chances 
of success. 
(see para. 31 and operative part 3) 
6. On a joint reading, Articles 45(3) and 
59(1) of the Association Agreement 
between the Communities and the 
Czech Republic, which respectively 
prohibit Member States from discrimi­
nating, in matters relating to establish­
ment, against Czech nationals on the 
ground of their nationality, and set out 
the powers of the host Member State to 
apply national rules on entry, residence 
and establishment, subject to the con­
dition that they do not render it 
impossible or excessively difficult for 
Czech nationals to exercise the rights 
granted to them under Article 45(3), 
do not in principle preclude a national 
system of prior control which makes 
the issue by the competent immigration 
authorities of leave to enter and remain 
subject to the condition that the appli­
cant 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 and has 
reasonable chances of success. 
(see para. 31 and operative part 3) 
7. Article 44(4)(a)(i) of the Association 
Agreement between the Communities 
and Poland must be construed as 
meaning that the 'economic activities 
as self-employed persons' referred to in 
that provision have the same meaning 
I-8619 
SUMMARY — CASE C-268/99 
and scope as the 'activities as self-
employed persons' referred to in Arti­
cle 52 of the Treaty (now, after amend­
ment, Article 43 EC). 
There is nothing in the context or 
purpose of that Agreement to suggest 
that it intended to give to the concept 
of 'economic activities as self-employed 
persons' any meaning other than its 
ordinary meaning of economic activ­
ities carried on by a person outside any 
relationship of subordination with 
regard to the conditions of work or 
remuneration and under that person's 
own personal responsibility. 
(see paras 37 and 50 and operative part 4) 
8. Article 45(4)(a)(i) of the Association 
Agreement between the Communities 
and the Czech Republic must be con­
strued as meaning that the 'economic 
activities as self-employed persons' 
referred to in that provision have the 
same meaning and scope as the 'activ­
ities as self-employed persons' referred 
to in Article 52 of the Treaty (now, 
after amendment, Article 43 EC). 
There is nothing in the context or 
purpose of that Agreement to suggest 
that it intended to give to the concept 
of 'economic activities as self-employed 
persons' any meaning other than its 
ordinary meaning of economic activ­
ities carried on by a person outside any 
relationship of subordination with 
regard to the conditions of work or 
remuneration and under that person's 
own personal responsibility. 
(see paras 37 and 50 and operative part 4) 
9. Conduct which a Member State 
accepts on the part of its own nationals 
cannot be regarded as constituting a 
genuine threat to public order within 
the context of the Association Agree­
ment between the Communities and 
Poland. 
Applicability of the public-policy dero­
gation set out in Article 53 of that 
Agreement is thus subject, in the case 
of Polish nationals wishing to pursue 
an activity in a self-employed capacity, 
within the meaning of the Agreement, 
in the territory of the host Member 
State, to the condition that that State 
has adopted effective measures to 
monitor and curb activities of that 
kind when they are also pursued by 
its own nationals. 
(see para. 61) 
I - 8620 
JANY AND OTHERS 
10. Conduct which a Member State 
accepts on the part of its own nationals 
cannot be regarded as constituting a 
genuine threat to public order within 
the context of the Association Agree­
ment between the Communities and 
the Czech Republic. 
Applicability of the public-policy dero­
gation set out in Article 54 of that 
Agreement is thus subject, in the case 
of Czech nationals wishing to pursue 
an activity in a self-employed capacity, 
within the meaning of the Agreement, 
in the territory of the host Member 
State, to the condition that that State 
has adopted effective measures to 
monitor and curb activities of that 
kind when they are also pursued by 
its own nationals. 
(see para. 61) 
11. Article 44 of the Association Agree­
ment between the Communities and 
Poland, which provides for rules on 
establishment, must be construed as 
meaning that prostitution is an eco­
nomic activity pursued by a self-
employed person as referred to in that 
provision where it is established that it 
is being carried on by the person 
providing the service: 
— outside any relationship of subordi­
nation concerning the choice of that 
activity, working conditions and 
conditions of remuneration; 
— under that person's own responsi­
bility; and 
— in return for remuneration paid to 
that person directly and in full. 
It is for the national court to determine 
in each case, in the light of the evidence 
adduced before it, whether those con­
ditions are satisfied. 
(see para. 71 and operative part 5) 
12. Article 45 of the Association Agree­
ment between the Communities and 
the Czech Republic, which provides for 
rules on establishment, must be con­
strued as meaning that prostitution is 
an economic activity pursued by a self-
I-8621 
SUMMARY — CASE C-268/99 
employed person as referred to in that 
provision where it is established that it 
is being carried on by the person 
providing the service: 
— outside any relationship of subordi­
nation concerning the choice of that 
activity, working conditions and 
conditions of remuneration; 
— under that person's own responsi­
bility; and 
— in return for remuneration paid to 
that person directly and in full. 
It is for the national court to determine 
in each case, in the light of the evidence 
adduced before it, whether those con­
ditions are satisfied. 
(see para. 71 and operative part 5) 
I - 8622