Judgment of the Court of 27 September 2001 in Case C-63/99 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office)): The Queen v Secretary of State for the Home Department, ex parte: Wieslaw Gloszczuk and Elzbieta Gloszczuk (External relations — Association Agreement between the Communities and Poland — Freedom of establishment — Leave to enter obtained fraudulently)
Date: 2002-01-19
Institutions: Court of Justice
Subjects: Poland, association agreement (EU), foreign national, freedom to provide services, interpretation of the law, right of establishment

19.1.2002

EN

Official Journal of the European Communities

C 17/3

In a situation such as that in the main proceedings, the finding
of the existence of unlawful aid, on the ground that it was not
authorised by the Commission at the time when it was granted,
and, as the case may be, of discrimination between producers
within the meaning of Article 4(b) of the Treaty, in that some
producers were subject to the payment of royalties whereas
others were exempt, cannot lead to producers who have been
made subject to those royalties being retrospectively exonerated
from them.

3. A national court is entitled to make a finding of the existence
of discrimination between producers, within the meaning of
Article 4(b) of the Treaty, or of aid, within the meaning of
Article 4(c) of
the Treaty and Article 1 of Decision
No 3632/93, by reason of the royalty system at issue in the
main proceedings, and it may do so despite the adoption by the
Commission

— of Decision 94/995/ECSC of 3 November 1994 ruling
on financial measures by the United Kingdom in respect
of the coal
industry in the 1994/95 and 1995/96
financial years,

— of the Decision of 21 December 1994 authorising the
acquisition of Central and Northern Mining Ltd by RJB
Mining (UK) plc, and

— of the decisions contained in the letters of 4 May and
14 July 1995 sent
to the National Association of
Licensed Opencast Operators in reply to the complaint by
that association of 19 August 1994.

4.

The fact that H.J. Banks & Co. Ltd or the National Association
of Licensed Opencast Operators

— did not bring an action for annulment under Article 33
of
the
the ECSC Treaty against Decision 94/995,
Decision of 21 December 1994 authorising the acqui-
sition of Central and Northern Mining Ltd by RJB
Mining (UK) plc or the decisions contained in the letters
of 4 May and 14 July 1995 sent to the National
Association of Licensed Opencast Operators,

— did not bring an action under Article 35 of the ECSC
Treaty to compel the Commission to adopt a position on
alleged infringements of Article 4(b) of the Treaty, in so
far as it concerns discrimination between producers, or of
the first sentence of Article 9(4) of Decision No 3632/93,

does not preclude H.J. Banks & Co. Ltd. from pleading those
infringements before the national courts.

(1) OJ C 20 of 23.1.1999.

JUDGMENT OF THE COURT

of 27 September 2001

in Case C-63/99 (reference for a preliminary ruling from
the High Court of Justice of England and Wales, Queen’s
Bench Division (Crown Office)): The Queen v Secretary
of State for the Home Department, ex parte: Wieslaw
Gloszczuk and Elzbieta Gloszczuk (1)

(External relations — Association Agreement between the
Communities and Poland — Freedom of establishment —
Leave to enter obtained fraudulently)

(2002/C 17/04)

(Language of the case: English)

In Case C-63/99: reference to the Court under Article 234 EC
from the High Court of Justice of England and Wales, Queen’s
Bench Division (Crown Office), for a preliminary ruling in the
proceedings pending before that court between The Queen
and Secretary of State for the Home Department, ex parte:
Wieslaw Gloszczuk et Elzbieta Gloszczuk — on the interpret-
the Europe Agreement
ation of Articles 44 and 58 of
establishing an association between the European Communi-
ties and their Member States, of the one part, and the Republic
of Poland, of the other part, concluded and approved on behalf
of the Community by Decision 93/743/Euratom, ECSC, EC of
the Council and the Commission of 13 December 1993 (OJ
1993 L 348, 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 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 Community by
Decision 93/743/Euratom, ECSC, EC of the Council and the
Commission of 13 December 1993 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.

C 17/4

EN

Official Journal of the European Communities

19.1.2002

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 competent to apply to those nationals their own national
laws and regulations regarding entry, stay and establishment,
in accordance with Article 58(1) of that Agreement.

2.

The right of establishment, as defined by Article 44(3) of the
above Association Agreement, means that rights of entry and
the right of establishment, are
residence, as corollaries of
conferred on Polish 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 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 Polish nationals.

3. Articles 44(3) and 58(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 58(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 44(3) of that Agreement on the sole ground that, when
that application was submitted, the Polish national was residing
illegally within the territory of that State because of false
representations made to those authorities for the purpose of
obtaining initial leave to enter that Member State on a different
basis or of non-compliance with an express condition attached
to that entry and 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 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 121 of 1.5.1999.

JUDGMENT OF THE COURT

(Second Chamber)

of 11 October 2001

in Case C-77/99: Commission of the European Communi-
ties v Oder-Plan Architektur GmbH, NCC Deutsche Ban
GmbH, Esbensen Consulting Engineers (1)

(Arbitration clause — Financial support for the energy
sector — Thermie Programme — Non-performance of a
contract — Termination — Right to repayment of an
advance)

(2002/C 17/05)

(Language of the case: German)

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

In Case C-77/99: Commission of the European Communities
(Agents: R.B. Wainwright and K. Schreyer, assisted by
M. Nu´ n˜ ez-Müller) v Oder-Plan Architektur GmbH, in liqui-
dation, established in Berlin (Germany), represented by its
liquidator, C. Schlote, NCC Deutsche Ban GmbH, formerly
NCC Siab Bau GmbH, established in Fürstenwalde (Germany),
represented by D. Stoecker, Rechtsanwalt, and Esbensen
Consulting Engineers, established in Virum (Denmark), rep-
resented by D. Stoecker — application by the Commission of
the European Communities under Article 181 of the EC Treaty
(now Article 238 EC) for repayment of an advance paid by the
Commission under the Thermie Programme referred to in
Article 1 of Council Regulation (EEC) No 2008/90 of 29 June
1990 concerning the promotion of energy technology in
Europe (Thermie programme)
(OJ 1990 L 185, p. 1) —
the Court
(Second Chamber), composed of: N. Colneric
(Rapporteur), President of the Chamber, R. Schintgen and
V. Skouris, Judges; S. Alber, Advocate General; H. von Holstein,
Deputy Registrar, for the Registrar, has given a judgment on
11 October 2001, in which it:

1.

By way of judgment by default, orders Oder-Plan Architektur
GmbH, jointly and severally with NCC Deutsche Bau GmbH
and Esbensen Consulting Engineers, to pay to the Commission
of the European Communities the sum of EUR 54 510, plus
interest of EUR 12 077.09 for the period from 1 January
1995 to 15 January 1999;

2. Orders NCC Deutsche Ban GmbH and Esbensen Consulting
Engineers, jointly and severally as between each other and with
Oder-Plan Architektur GmbH, to pay to the Commission of
the European Communities the sum of EUR 54 510, plus
interest of EUR 12 077.09 for the period from 1 January
1995 to 15 January 1999;

3. Dismisses the remainder of the application;