Opinion of the Advocate General — ECLI:EU:C:2000:508
Date: 2000-09-26
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: United Kingdom

Summary of the Judgment 
1. 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)) 
I - 6557 
SUMMARY — CASE C-257/99 
2. International agreements — Association Agreement between the Communities and the 
Czech Republic — Right of establishment — Right implying a right 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)) 
3. International agreements — Association Agreement between the Communities and the 
Czech Republic — Right of establishment — Right implying a right of entry and 
residence — Limits on the exercise of those rights — National system of prior control 
making the granting of leave to enter subject to substantive conditions — Whether 
permissible 
(Association Agreement between the Communities and the Czech Republic, Arts 45(3) 
and 59(1)) 
4. International agreements — Association Agreement between the Communities and the 
Czech Republic — Right of establishment — Right implying a right of entry and 
residence — Limits on the exercise of those rights — Obligation to obtain in the 
country of residence, prior to departure for the host Member State, an entry permit — 
Whether permissible — Conditions 
(Association Agreement between the Communities and the Czech Republic, Arts 45(3) 
and 59(1)) 
1. Article 45(3) of the Agreement estab­
lishing an association between the 
Communities and the Czech Republic, 
which prohibits Member States from 
discriminating, in matters relating to 
establishment, against Czech nationals 
on grounds of their nationality, must be 
construed as establishing, within the 
scope of application of that Agreement, 
a precise and unconditional principle 
which is sufficiently operational to be 
applied by a national court and which 
is therefore 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 it have the 
right to invoke it before the courts of 
the host Member State, notwithstand­
ing 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 59(1) of that Agreement. 
(see paras 33, 39 and operative part 1) 
2. 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-
I - 6558 
BARKOCI AND MALIK 
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 83 and operative part 2) 
3. 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 
grounds of their nationality and set 
out the powers of the authorities of the 
host Member State to apply their own 
laws and regulations regarding entry, 
residence and establishment, on condi­
tion that they do not make it impos­
sible or excessively difficult for Czech 
nationals to exercise the rights granted 
to them by Article 45(3) of the Asso­
ciation Agreement, do not in principle 
preclude a system of prior national 
control which makes the issue by the 
competent immigration authorities of 
leave to enter subject to the condition 
that the applicant must show that he 
genuinely intends to take up an activity 
in a self-employed capacity without at 
the same time entering into employ­
ment or having recourse to public 
funds, and that he possesses, from the 
outset, sufficient financial resources 
and has reasonable chances of success. 
(see paras 59, 83 and operative part 3) 
4. The condition set out at the end of the 
first sentence of Article 59(1) of the 
Association Agreement between the 
Communities and the Czech Republic 
must be construed as meaning that the 
obligation imposed on a Czech 
national by the immigration legislation 
of the host Member State, prior to his 
departure to the host Member State, to 
obtain entry clearance in his country of 
residence, grant of which is subject to 
verification of substantive require­
ments, has neither the purpose nor the 
effect of making it impossible or exces­
sively difficult for Czech nationals to 
exercise the rights granted to them by 
Article 45(3) of that Agreement, pro­
vided that the competent authorities of 
the host Member State exercise their 
discretion in regard to applications for 
leave to enter for purposes of establish­
ment, submitted pursuant to that 
Agreement at the point of entry into 
that State, in such a way that leave to 
enter can be granted to a Czech 
national lacking entry clearance on a 
I - 6559 
SUMMARY — CASE C-257/99 
basis other than that of the national 
immigration rules providing for a sys­
tem of prior control if that person's 
application clearly and manifestly satis­
fies the same substantive requirements 
as those which would have been 
applied had he sought entry clearance 
in the Czech Republic. 
(see para. 83 and operative part 4) 
I - 6560