CELEX: C2002/017/04
Language: en
Date: 2002-01-19 00:00:00
Title: 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)

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                          JUDGMENT OF THE COURT
     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                                of 27 September 2001
     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.                                                              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
3.   A national court is entitled to make a finding of the existence         of State for the Home Department, ex parte: Wieslaw
     of discrimination between producers, within the meaning of                           Gloszczuk and Elzbieta Gloszczuk (1)
     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          (External relations — Association Agreement between the
     Commission                                                              Communities and Poland — Freedom of establishment —
                                                                                           Leave to enter obtained fraudulently)
     —     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                                              (2002/C 17/04)
           financial years,
     —     of the Decision of 21 December 1994 authorising the
                                                                                                 (Language of the case: English)
           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.                               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
4.   The fact that H.J. Banks & Co. Ltd or the National Association          proceedings pending before that court between The Queen
     of Licensed Opencast Operators                                          and Secretary of State for the Home Department, ex parte:
                                                                             Wieslaw Gloszczuk et Elzbieta Gloszczuk — on the interpret-
                                                                             ation of Articles 44 and 58 of the Europe Agreement
     —     did not bring an action for annulment under Article 33            establishing an association between the European Communi-
           of the ECSC Treaty against Decision 94/995, the                   ties and their Member States, of the one part, and the Republic
           Decision of 21 December 1994 authorising the acqui-               of Poland, of the other part, concluded and approved on behalf
           sition of Central and Northern Mining Ltd by RJB                  of the Community by Decision 93/743/Euratom, ECSC, EC of
           Mining (UK) plc or the decisions contained in the letters         the Council and the Commission of 13 December 1993 (OJ
           of 4 May and 14 July 1995 sent to the National                    1993 L 348, p. 1) — the Court, composed of: G.C. Rodrı́guez
           Association of Licensed Opencast Operators,                       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. Sevón, R. Schintgen
     —     did not bring an action under Article 35 of the ECSC              and F. Macken, Judges; S. Alber, Advocate General; H. von
           Treaty to compel the Commission to adopt a position on            Holstein, Deputy Registrar, has given a judgment on 27 Sep-
           alleged infringements of Article 4(b) of the Treaty, in so        tember 2001, the operative part of which is as follows:
           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             1.    Article 44(3) of the Europe Agreement establishing an associ-
     infringements before the national courts.                                     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
(1) OJ C 20 of 23.1.1999.                                                          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.
 ---pagebreak--- C 17/4                  EN                      Official Journal of the European Communities                                          19.1.2002
     The direct effect which that provision must therefore be                                JUDGMENT OF THE COURT
     recognised as having means that Polish nationals relying on it
     have the right to invoke it before the courts of the host Member
                                                                                                    (Second Chamber)
     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,                                 of 11 October 2001
     in accordance with Article 58(1) of that Agreement.
                                                                           in Case C-77/99: Commission of the European Communi-
2.   The right of establishment, as defined by Article 44(3) of the        ties v Oder-Plan Architektur GmbH, NCC Deutsche Ban
     above Association Agreement, means that rights of entry and                     GmbH, Esbensen Consulting Engineers (1)
     residence, as corollaries of the right of establishment, are
     conferred on Polish nationals wishing to pursue activities of an      (Arbitration clause — Financial support for the energy
     industrial or commercial character, activities of craftsmen, or       sector — Thermie Programme — Non-performance of a
     activities of the professions in a Member State. However, it          contract — Termination — Right to repayment of an
     follows from Article 58(1) of that Agreement that those rights                                       advance)
     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                                     (2002/C 17/05)
     establishment of Polish nationals.
                                                                                              (Language of the case: German)
3.   Articles 44(3) and 58(1) of the above Association Agreement,
     read together, do not in principle preclude a system of prior         (Provisional translation; the definitive translation will be published
     control which makes the issue by the competent immigration                                in the European Court Reports)
     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            In Case C-77/99: Commission of the European Communities
     funds, and that he possesses, from the outset, sufficient financial   (Agents: R.B. Wainwright and K. Schreyer, assisted by
     resources and has reasonable chances of success. Substantive          M. Núñez-Müller) v Oder-Plan Architektur GmbH, in liqui-
     requirements such as those set out in paragraphs 217 and 219          dation, established in Berlin (Germany), represented by its
     of the United Kingdom Immigration Rules (House of Commons             liquidator, C. Schlote, NCC Deutsche Ban GmbH, formerly
     Paper 395) have as their very purpose to enable the competent         NCC Siab Bau GmbH, established in Fürstenwalde (Germany),
     authorities to carry out such checks and are appropriate for          represented by D. Stoecker, Rechtsanwalt, and Esbensen
     achieving such a purpose.                                             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
4.   Article 58(1) of the above Association Agreement must be              (now Article 238 EC) for repayment of an advance paid by the
     construed as meaning that the competent authorities of the host       Commission under the Thermie Programme referred to in
     Member State may reject an application made pursuant to               Article 1 of Council Regulation (EEC) No 2008/90 of 29 June
     Article 44(3) of that Agreement on the sole ground that, when         1990 concerning the promotion of energy technology in
     that application was submitted, the Polish national was residing      Europe (Thermie programme) (OJ 1990 L 185, p. 1) —
     illegally within the territory of that State because of false         the Court (Second Chamber), composed of: N. Colneric
     representations made to those authorities for the purpose of          (Rapporteur), President of the Chamber, R. Schintgen and
     obtaining initial leave to enter that Member State on a different     V. Skouris, Judges; S. Alber, Advocate General; H. von Holstein,
     basis or of non-compliance with an express condition attached         Deputy Registrar, for the Registrar, has given a judgment on
     to that entry and relating to the authorised duration of his stay     11 October 2001, in which it:
     in that Member State. Consequently, those authorities may
     require that national to submit, in due and proper form, a new        1.    By way of judgment by default, orders Oder-Plan Architektur
     application for establishment on the basis of that Agreement                GmbH, jointly and severally with NCC Deutsche Bau GmbH
     by applying for an entry visa to the competent authorities in his           and Esbensen Consulting Engineers, to pay to the Commission
     State of origin or, as the case may be, in another country,                 of the European Communities the sum of EUR 54 510, plus
     provided that such measures do not have the effect of preventing            interest of EUR 12 077.09 for the period from 1 January
     such a national from having his situation reviewed at a later               1995 to 15 January 1999;
     date when he submits that new application.
                                                                           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
(1) OJ C 121 of 1.5.1999.                                                        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;