CELEX: C1999/121/23
Language: en
Date: 1999-05-01 00:00:00
Title: Case C-64/99: Reference for a preliminary ruling by the High Court of Justice, Queen's Bench Division (Commercial Court) (England and Wales), by order of that court of 18 December 1998, in the case of Pace Airline Services Ltd against Aerotrans Luftfahrtagentur GmbH

C 121/12               EN                    Official Journal of the European Communities                                       1.5.1999
Reference for a preliminary ruling by the High Court of                 Reference for a preliminary ruling by the High Court
Justice, Queen’s Bench Division (Crown Office) (England                 of Justice, Queen’s Bench Division (Commercial Court)
and Wales), by order of that court of 9 December 1998,                  (England and Wales), by order of that court of 18 Decem-
in the case of The Queen against Secretary of State for                 ber 1998, in the case of Pace Airline Services Ltd against
the Home Department, ex parte: Wieslaw Gloszczuk and                                  Aerotrans Luftfahrtagentur GmbH
                       Elzbieta Gloszczuk
                                                                                                 (Case C-64/99)
                         (Case C-63/99)
                                                                                                (1999/C 121/23)
                        (1999/C 121/22)                                 Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the High Court of
                                                                        Justice, Queen’s Bench Division (Commercial Court) (England
Reference has been made to the Court of Justice of the                  and Wales), of 18 December 1998, which was received at the
European Communities by an order of the High Court of                   Court Registry on 23 February 1999, for a preliminary ruling
Justice, Queen’s Bench Division (Crown Office) (England and             in the case of Pace Airline Services Ltd against Aerotrans
Wales) of 9 December 1998, which was received at the Court              Luftfahrtagentur GmbH, on the following questions:
Registry on 22 February 1999, for a preliminary ruling in the
case of The Queen against Secretary of State for the Home
Department, ex parte: Wieslaw Gloszczuk and Elzbieta Glosz-             Where:
czuk, on the following questions:
                                                                        a) company X, incorporated in Member State A, is an agent
                                                                            for a carrier of goods by air;
1. Does Article 44 of the Association Agreement between the
    EEC and the Republic of Poland [‘the Agreement’ (OJ L               b) company X appoints another company (‘Y’) incorporated
    348, 31.12.1993, p. 2)] confer rights of establishment                  in Member State B to conclude contracts for the sale of
    upon a Polish national whose presence within the territory              cargo space between the carrier and third-party consignors
    of a Member State is unlawful under national immigration                on flights operated by the carrier;
    law by reason of a breach of an express condition, imposed
    upon his admission to the territory as a visitor, relating to       c) all relevant activities of company Y are carried out in
    the permitted duration of his stay within that Member                   Member State B;
    State when that breach arose prior to his becoming a
    self-employed person and his application to take up and
    pursue activities under Article 44 of the Agreement?                d) company X and company Y have agreed that their
                                                                            contractual relationship is governed by the laws of Member
                                                                            State A.
2. If the answer to the first question is ‘yes’, does Article 44
    of the Agreement have direct effect within the national
    legal systems of Member States, notwithstanding the                 Question 1
    provisions of Article 58 of the Agreement?
                                                                        In the circumstances set out above, are the words ‘sale or the
3. If the answer to the second question is ‘yes’:                       purchase of goods (...) or to negotiate and conclude such
                                                                        transactions (...)’ in Article 1(2) of Council Directive
                                                                        86/653/EEC (1) to be construed as including the activities of
                                                                        company Y?
    i) to what extent may a Member State apply its laws and
         regulations regarding entry and stay, work, labour
         conditions and establishment of natural persons, and
         supply of services, to persons invoking Article 44 of the      Question 2
         Agreement, without violating the proviso contained in
         the penultimate sentence of Article 58 (1) of the              In the circumstances set out above, is the term ‘principal’ in
         Agreement and, inter alia, the principle of pro-               Article 1(2) of the said Directive to be interpreted as including
         portionality?                                                  company X?
    ii) does Article 58, in any and if so what circumstances,           Question 3
         permit the refusal of an application under Article 44
         of the Agreement made by someone whose presence
         in the Member State is otherwise unlawful?                     1. In the circumstances set out above, are the provisions of
                                                                            the said Directive to be interpreted as requiring Member
                                                                            State A to enact implementing rules which provide that
                                                                            their substantive provisions apply in relation to the
                                                                            activities of commercial agents which are carried out
                                                                            exclusively in Member State B?