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 (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)
Date: 2002-01-05
Institutions: Court of Justice
Subjects: Czechia, Poland, foreign national, interpretation of the law, residence permit, right of establishment

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.

5.1.2002

EN

Official Journal of the European Communities

C 3/9

3. Articles 44(3) and 58(1) of the above Agreement with the
Republic of Poland, read together, and Articles 45(3) and 59(1)
of the above Agreement with the Czech Republic, 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 for carrying out the activity in question as a self-
employed person and has reasonable chances of success.

Substantive requirements such as those set out in section 4.2.3
of Chapter B 12 of the Netherlands Vreemdelingencirculaire
(Circular on Aliens), in particular the requirement that Polish
and Czech nationals wishing to become established in the host
Member State must from the outset have sufficient financial
resources to carry on the activity in question in a self-employed
capacity, are designed precisely to enable the competent auth-
orities of that State to carry out such checks and are appropriate
for ensuring that such an objective is attained.

4. Article 44(4)(a)(i) of the above Agreement with the Republic
of Poland and Article 45(4)(a)(i) of the above Agreement with
the Czech Republic must be construed to the effect that the
‘economic activities as self-employed persons’ referred to in those
provisions have the same meaning and scope as the ‘activities
as self-employed persons’ referred to in Article 52 of the EC
Treaty (now, after amendment, Article 43 EC).

The activity of prostitution pursued in a self-employed capacity
can be regarded as a service provided for remuneration and is
therefore covered by both those expressions.

5. Article 44 of the above Agreement with the Republic of Poland
and Article 45 of the above Agreement with the Czech Republic
must be construed to the effect that prostitution is an economic
activity pursued by a self-employed person as referred to in those
provisions, where it is established that it is being carried on by
the person providing the service:

— outside any relationship of subordination concerning the
choice of that activity, working conditions and conditions
of remuneration;

— under that person’s own responsibility; and

— in return for remuneration paid to that person directly

and in full.

It is for the national court to determine in each case, in the light
of the evidence adduced before it, whether those conditions are
satisfied.

(1) OJ C 265 of 18.9.1999.

JUDGMENT OF THE COURT

of 20 September 2001

in Case C-383/99 P: Procter & Gamble Company v Office,
for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM) (1)

(Appeal — Admissibility — Community trade mark —
Regulation (EC) No 40/94 — Absolute ground for refusal
to register — Distinctive character — Marks consisting
exclusively of descriptive signs or indications — ‘BABY-
DRY’)

(2002/C 3/12)

(Language of the case: French)

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

In Case C-383/99P: Procter and Gamble Company established
in Cincinnatti (United States) represented by T. van Innis,
avocat, appeal against the judgment of the Court of First
Instance of the European Communities (Second Chamber) of
8 July 1999 in Case T-163/98 Procter & Gamble v OHIM
(‘BABY-DRY’)
[1999] ECR II-2383, seeking to have that
judgment set aside in so far as the Court of First Instance ruled
that the First Board of Appeal of the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) had not
infringed Article 7(1)(c) of Council Regulation (EC) No 40/94
of 20 December 1993 on the Community trade mark (OJ
1994 L 11, p. 1) in adopting its decision of 31 July 1998 (Case
R 35/1998-1), the other party to the proceedings being the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) (Agents: O. Montalto and E. Joly) — the Court,
composed of: G.C. Rodrı´guez Iglesias, President, C. Gulmann,
M. Wathelet and V. Skouris
(Presidents of Chambers),
J.-P. Puissochet (Rapporteur), P. Jann, L. Sevo´ n, R. Schintgen,
F. Macken, N. Colneric and S. von Bahr, Judges, F.G. Jacobs,
Advocate General; D. Louterman-Hubeau for the Registrar,
gave a judgment on 20 September 2001, in which it:

1. Annuls the judgment of the Court of First Instance of 8 July
1999 in Case T-163/98 Procter & Gamble v OHIM (‘BABY-
DRY’), in so far as it found that the First Board of Appeal of
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) did not infringe Article 7(1)(c) of Council
Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark in adopting its decision of 31 July
1998 (Case R 35/1998-1);