Judgment of the Court of 27 September 2001 in Case C-235/99 (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: Eleonora Ivanova Kondova (External relations — Association Agreement between the Communities and Bulgaria — Freedom of establishment — Leave to enter fraudulently obtained — Obligation on a Member State to pay compensation for damage caused to an individual invoking a right of establishment which is directly effective under the Association Agreement)
Date: 2002-01-05
Institutions: Court of Justice
Subjects: Bulgaria, association agreement (EU), interpretation of the law, residence permit, right of establishment, self-employed person

5.1.2002

EN

Official Journal of the European Communities

C 3/7

4. As a result of

the invalidity of Commission Regulation
No 1521/95, the export refunds for cereal-based feedingstuffs,
for which the application was made in export declarations
accepted by the competent customs service on 30 June 1995
and for which advance fixing had not been requested, are to be
calculated in accordance with Commission Regulation (EC)
No 1415/95 of 22 June 1995 fixing the export refunds on
cereal-based compound feedingstuffs.

(1) OJ C 246 of 28.8.1999.

JUDGMENT OF THE COURT

of 27 September 2001

in Case C-235/99 (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:
Eleonora Ivanova Kondova (1)

(External relations — Association Agreement between the
Communities and Bulgaria — Freedom of establishment —
Leave to enter fraudulently obtained — Obligation on a
Member State to pay compensation for damage caused to an
individual invoking a right of establishment which is directly
effective under the Association Agreement)

(2002/C 3/10)

(Language of the case: English)

In Case C-235/99: 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: Eleanora Ivanova Kondova — 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 Republic of Bulgaria,
of the other part, concluded and approved on behalf of the
Community by Decision 94/908/ECSC, EC, Euratom of the
Council and the Commission of 19 December 1994 (OJ 1994
L 358, 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; S. Alber, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 27 Sep-
tember 2001, the operative part of which is as follows:

1. Article 45(1) of the Europe Agreement establishing an associ-
ation between the European Communities and their Member
States, of the one part, and the Republic of Bulgaria, of the
other part, concluded and approved on behalf of the Community
by Decision 94/908/ECSC, EC, Euratom of the Council and
the Commission of 19 December 1994, is to 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
therefore be
recognised 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,
that
Agreement.

in accordance with Article 59(1) of

2.

The right of establishment, as defined by Article 45(1) of the
above Association Agreement, means that rights of entry and
residence, as corollaries of
the right of establishment, are
conferred on Bulgarian 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 Bulgarian nationals.

3. Articles 45(1) and 59(1) of the above 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 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 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 those set out in paragraphs 217 and 219
of the United Kingdom 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. Article 59(1) of the above Association Agreement must be
construed as meaning that the competent authorities of the host
Member State may reject an application made pursuant to
Article 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 representations 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 may require that national to submit, in due

C 3/8

EN

Official Journal of the European Communities

5.1.2002

and proper form, a new application 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.

(1) OJ C 246 of 28.8.1999.

Member States, of the one part, and the Czech Republic, of
the other part, concluded and approved on behalf of the
Communities 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, P.
Jann, F. Macken and N. Colneric (Presidents
of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola
(Rapporteur), L. Sevo´ n, M. Wathelet, V. Skouris and
Judges; P. Léger, Advocate General;
C.W.A. Timmermans,
L. Hewlett, Administrator,
for the Registrar, has given a
judgment on 20 November 2001, in which it has ruled:

JUDGMENT OF THE COURT

of 20 November 2001

in Case C-268/99 (reference for a preliminary ruling from
the Arrondissementsrechtbank te ’s-Gravenhage): Aldona
Malgorzata Jany and Others v Staatssecretaris van
Justitie (1)

(External relations — Association agreements between the
Communities and Poland and between the Communities
and the Czech Republic — Freedom of establishment —
‘Economic activities’ — Whether or not they include the
activity of prostitution)

(2002/C 3/11)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-268/99: reference to the Court under Article 234 EC
from the Arrondissementsrechtbank te ’s-Gravenhage (District
Court, The Hague) (Netherlands) for a preliminary ruling in
the proceedings pending before that court between Aldona
Malgorzata Jany and Others and Staatssecretaris van Justitie —
on the interpretation of Articles 44 and 58 of the Europe
Agreement establishing an association between the European
Communities and their Member States, of the one part, and
the Republic of Poland, of the other part, concluded and
approved on behalf of
the Communities by Decision
93/743/Euratom, ECSC, EC of the Council and the Com-
mission of 13 December 1993 (OJ 1993 L 348, p. 1), and of
Articles 45 and 59 of the Europe Agreement establishing an
association between the European Communities and their

1. Article 44(3) of the Europe Agreement establishing an associ-
ation between the European Communities and their Member
States, of the one part, and the Republic of Poland, of the other
part, concluded and approved on behalf of the Communities by
Decision 93/743/Euratom, ECSC, EC of the Council and the
Commission of 13 December 1993, and Article 45(3) 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 Communities by Decision
94/910/ECSC, EC, Euratom of the Council and the Com-
mission of 19 December 1994, must be construed as estab-
lishing, within the respective scopes of application of those two
Agreements, 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 those provisions must
recognised as having means that Polish and Czech nationals
relying on those provisions have the right to invoke them before
the courts of the host Member State, notwithstanding the fact
that the authorities of that State remain competent to apply to
laws and regulations
those nationals their own national
regarding entry, stay and establishment, in accordance with
Article 58(1) of the above Agreement with the Republic of
Poland and Article 59(1) of the above Agreement with the
Czech Republic.

2.

The right of establishment, as defined by Article 44(3) of
the above Agreement with the Republic of Poland and by
Article 45(3) of the above Agreement with the Czech Republic,
means that rights of entry and residence, as corollaries of the
right of establishment, are conferred on Polish and 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 58(1) of the above Agreement
with the Republic of Poland and from Article 59(1) of the
above Agreement with the Czech Republic 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 Polish and Czech nationals.