Opinion of the Advocate General — ECLI:EU:C:2000:448
Date: 2000-09-14
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(1) of the Association Agreement between the 
Communities and Bulgaria 
(Association Agreement between the Communities and Bulgaria, Arts 45(1) and 59(1)) 
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SUMMARY — CASE C-235/99 
2. International agreements •— Association Agreement between the Communities and 
Bulgaria — Right of establishment — Right implying a right of entry and resi­
dence — Limits on the exercise of those rights 
(Association Agreement between the Communities and Bulgaria, Arts 45(1) and 59(1)) 
3. International agreements — Association Agreement between the Communities and 
Bulgaria — Right of establishment •— Right implying a right of entry and resi­
dence — Limits on the exercise of those rights — National system of prior control 
making the grant of leave to enter and reside subject to substantive requirements •— 
Whether permissible 
(Association Agreement between the Communities and Bulgaria, Arts 45(1) and 59(1)) 
4. International agreements — Association Agreement between the Communities and 
Bulgaria — Right of establishment — Right implying a right of entry and resi­
dence — Limits on the exercise of those rights •—• Rejection by a Member State of a 
request for establishment on the sole ground that the applicant was unlawfully present 
in that Member State when the request was submitted — Whether permissible — 
Possibility for the applicant to submit a fresh request — Conditions — Application of 
the national rules on entry into the national territory — Limits — Protection of the 
applicant's fundamental rights 
(Association Agreement between the Communities and Bulgaria, Arts 45(1) and 59(1)) 
1. Article 45(1) of the Association Agree­
ment between the Communities and 
Bulgaria, which prohibits Member 
States from discriminating, in matters 
relating to establishment, against Bul­
garian nationals on grounds of their 
nationality, is to be construed as estab­
lishing, within the scope of application 
of that Agreement, a precise and 
unconditional principle which is suffi­
ciently 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 therefore be recog­
nised as having means that Bulgarian 
nationals relying on it 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 Arti­
cle 59(1) of that Agreement. 
(see paras 33, 39 and operative part 1) 
2. The right of establishment, as defined 
by Article 45(1) of the Association 
Agreement between the Communities 
and Bulgaria, means that rights of entry 
and residence, as corollaries of the 
right of establishment, are conferred 
on Bulgarian nationals wishing to pur­
sue activities of an industrial or com-
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KONDOVA 
mereiai character, activities of crafts­
men, or activities of the professions in a 
Member State. It follows, however, 
from Article 59(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 Bulgarian 
nationals. 
(see para. 91 and operative part 2) 
3. On a joint reading, Articles 45(1) and 
59(1) of the Association Agreement 
between the Communities and Bul­
garia, which respectively prohibit 
Member States from discriminating, 
in matters relating to establishment, 
against Bulgarian 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, resi­
dence and establishment, on condition 
that they do not make it impossible or 
excessively difficult for Bulgarian 
nationals to exercise the rights granted 
to them under Article 45(1), 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 per­
son 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 paras 56, 91 and operative part 3) 
4. Article 59(1) of the Association Agree­
ment between the Communities and 
Bulgaria, which sets out the powers of 
the authorities of the host Member 
State to apply their own laws and 
regulations regarding entry, residence 
and establishment, on condition that 
they do not make it impossible or 
excessively difficult for Bulgarian 
nationals to exercise the rights granted 
to them under Article 45(1) of that 
Agreement, must be construed as 
meaning that the competent authorities 
of the host Member State may reject an 
application made pursuant to Arti­
cle 45(1) of that Agreement on the sole 
ground that, when that application was 
submitted, the Bulgarian national was 
residing illegally within the territory of 
that State because of false representa­
tions made to those authorities or non­
disclosure of material facts for the 
purpose of obtaining initial leave to 
enter that Member State on a different 
basis. Consequently, those authorities 
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SUMMARY — CASE C-235/99 
may require that national to submit, in 
due and proper form, a new applica­
tion for establishment on the basis of 
that Agreement by applying for an 
entry visa to the competent authorities 
in his State of origin or, as the case may 
be, in another country, provided that 
such measures do not have the effect of 
preventing such a national from having 
his situation reviewed at a later date 
when he submits that new application. 
Such measures, moreover, must be 
adopted without prejudice to the obli­
gation to respect that national's funda­
mental rights, such as the right to 
respect for his family life and the right 
to respect for his property, which 
follow, for the Member State con­
cerned, from the international instru­
ments to which that State may have 
acceded. 
(see paras 82, 90-91 
and operative part 4) 
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