Opinion of the Advocate General — ECLI:EU:C:2000:447
Date: 2000-09-14
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Association Agreement;Right of establishment;External relations;Free movement of workers
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 44(3) of the Association Agreement between the 
Communities and Poland 
(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1)) 
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SUMMARY — CASE C-63/99 
2. International agreements — Association Agreement between the Communities and 
Poland — Right of establishment — Right implying a right of entry and residence — 
Limits on the exercise of those rights 
(Association Agreement between the Communities and Roland, Arts 44(3) and 58(1)) 
3. International agreements — Association Agreement between the Communities and 
Poland — 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 
grant of leave to enter and reside subject to substantive requirements — Whether 
permissible 
(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1) 
4. International agreements — Association Agreement between the Communities and 
Poland — Right of establishment — Right implying a right of entry and residence — 
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 Poland, Arts 44(3) and 58(1)) 
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 grounds 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 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 com­
petent to apply to those nationals their 
own national laws and regulations 
regarding entry, stay and establish­
ment, in accordance with Article 58(1) 
of that Agreement. 
(see paras 32, 38 and operative part 1) 
2. 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-
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GLOSZCZUK 
ciai character, activities of craftsmen, 
or activities of the professions in a 
Member State. It follows, however, 
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. 86 and operative part 2) 
3. 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 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 condition that 
they do not make 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 paras 56, 86 
and operative part 3) 
4. Article 58(1) of the Association Agree­
ment between the Communities and 
Poland, 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 Polish nationals 
to exercise the rights granted to them 
under Article 44(3) of that Agreement, 
must be construed as meaning that the 
competent authorities of the host 
Member State may reject an applica­
tion made pursuant to Article 44(3) of 
that Agreement on the sole ground 
that, when that application was sub­
mitted, the Polish national was residing 
illegally within the territory of that 
State because of false representations 
made to those authorities for the pur­
pose of obtaining initial leave to enter 
that Member State on a different basis 
or relating to the authorised duration 
of his stay in that Member State. 
Consequently, those authorities may 
require that national to submit, in due 
and proper form, a new application for 
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SUMMARY — CASE C-63/99 
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 77, 85-86, 
and operative part 4) 
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