Case C-327/02

Lili Georgieva Panayotova and Others

v

Minister voor Vreemdelingenzaken en Integratie

(Reference for a preliminary ruling from the Rechtbank te ’s-Gravenhage)

(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)

Summary of the Judgment

International agreements – Association Agreements between the Communities and, respectively, Poland, Bulgaria and Slovakia – Right of establishment – National legislation laying down a system of prior control which makes entry into the territory of the Member State with a view to establishment conditional on a temporary residence permit obtained in the country of origin – Permissible – Conditions

(Association Agreement between the Communities and Bulgaria, Arts 45(1) and 59(1); Association Agreement between the Communities and Poland, Arts 44(3) and 58(1); Association Agreement between the Communities and Slovakia, Arts 45(3) and 59(1))

Articles 45(1) and 59(1) of the Association Agreement between the Communities and Bulgaria, read together, Articles 44(3) and 58(1) of the Association Agreement between the Communities and Poland, read together, and Articles 45(3) and 59(1) of the Association Agreement between the Communities and Slovakia, 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.

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.

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.

(see para. 39, operative part 1-3)