Judgment of the Court of 27 September 2001 In Case C-257/99 [reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Divisional Court)]: The Queen v Secretary of State for the Home Department ex parte: Julius Barkoci et Marcel Malik (External relations — Association Agreement between the Community and the Czech Republic — Freedom of establishment — Czech nationals wishing to establish themselves in a Member State as self-employed workers)
Date: 2001-11-24
Institutions: Court of Justice
Subjects: Czechia, association agreement (EU), foreign national, interpretation of the law, residence permit, right of establishment

24.11.2001

EN

Official Journal of the European Communities

C 331/3

JUDGMENT OF THE COURT

of 27 September 2001

In Case C-257/99 [reference for a preliminary ruling from
the High Court of Justice of England and Wales, Queen’s
Bench Division (Divisional Court)]: The Queen v Sec-
retary of State for the Home Department ex parte: Julius
Barkoci et Marcel Malik (1)

2.

(External relations — Association Agreement between the
Community and the Czech Republic — Freedom of establish-
ment — Czech nationals wishing to establish themselves in
a Member State as self-employed workers)

recognised as having means that Czech 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 Article 59(1) of that Agreement.

that

The right of establishment, as defined by Article 45(3) of that
Association Agreement, means
rights of entry and
residence, as corollaries of
the right of establishment, are
conferred on Czech nationals wishing to pursue activities of an
industrial or commercial character, activities of craftsmen, or
activities of the professions in a Member State. However, it
follows 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 circumstances, be limited by the
rules of the host Member State governing the entry, stay and
establishment of Czech nationals.

(2001/C 331/04)

(Language of the case: English)

In Case C-257/99: reference to the Court under Article 234
EC from the High Court of Justice of England and Wales,
Queen’s Bench Division (Divisional Court), for a preliminary
ruling in the proceedings pending before that court between
The Queen and Secretary of State for the Home Department,
ex parte: Julius Barkoci et Marcel Malik — on the interpretation
of Articles 45 and 59 of the Europe Agreement establishing
an association between the European Communities and their
Member States, of the one part, and the Czech Republic, of
the other part, concluded and approved on behalf of the
Community by Decision 94/910/ECSC, EC, Euratom of the
Council and the Commission of 19 December 1994 (OJ 1994
L 360, p. 1) — the Court, composed of: G.C. Rodrı´guez
Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),
M. Wathelet and V. Skouris
(Presidents of Chambers),
D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevo´ n, R. Schintgen
and F. Macken, Judges; J. Mischo, Advocate General; L. Hewlett,
Administrator, for the Registrar, has given a judgment on
27 September 2001, in which it has ruled:

1. Article 45(3) of the Europe Agreement establishing an associ-
ation between the European Communities and their Member
States, of the one part, and the Czech Republic, of the other
part, concluded and approved on behalf of the Community by
Decision 94/910/ECSC, EC, Euratom of the Council and the
Commission of 19 December 1994 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.
therefore be
The direct effect which that provision must

3. Articles 45(3) and 59(1) of that Association Agreement, read
together, do not in principle preclude a system of prior 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
employment or having recourse to public funds, and that he
possesses, from the outset, sufficient financial resources and has
reasonable chances of success. Substantive requirements such as
in paragraph 212 of the United Kingdom
those set out
Immigration Rules (House of Commons Paper 395) have as
their very purpose to enable the competent authorities to carry
out such checks and are appropriate for achieving such a
purpose.

4.

The condition set out at
the end of the first sentence of
Article 59(1) of that Association Agreement must be construed
as meaning that the obligation on a Czech national, 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 requirements, such as those laid
down in paragraph 212 of those Immigration Rules, has
neither the purpose nor the effect of making it impossible or
excessively difficult for Czech nationals to exercise the rights
granted to them by Article 45(3) of that Agreement, provided
that the competent authorities of the host Member State exercise
their discretion in regard to applications for leave to enter
for purposes of establishment, 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 basis other than that of the Immigration
Rules if that person’s application clearly and manifestly satisfies
the same substantive requirements as those which would have
been applied had he sought entry clearance in the Czech
Republic.

(1) OJ C 246 of 28.8.1999.