CELEX: C2001/331/04
Language: en
Date: 2001-11-24 00:00:00
Title: Judgment of the Court of 27 September 2001 In Case C-257/99 [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: Julius Barkoci et Marcel Malik (External relations — Association Agreement between the Community and the Czech Republic — Freedom of establishment — Czech nationals wishing to establish themselves in a Member State as self-employed workers)

24.11.2001              EN                       Official Journal of the European Communities                                              C 331/3
                  JUDGMENT OF THE COURT                                          recognised as having means that Czech 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
                      of 27 September 2001                                       laws and regulations regarding entry, stay and establishment,
                                                                                 in accordance with Article 59(1) of that Agreement.
In Case C-257/99 [reference for a preliminary ruling from
                                                                            2.   The right of establishment, as defined by Article 45(3) of that
the High Court of Justice of England and Wales, Queen’s
                                                                                 Association Agreement, means that rights of entry and
Bench Division (Divisional Court)]: The Queen v Sec-
                                                                                 residence, as corollaries of the right of establishment, are
retary of State for the Home Department ex parte: Julius
                                                                                 conferred on Czech nationals wishing to pursue activities of an
                    Barkoci et Marcel Malik (1)
                                                                                 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
(External relations — Association Agreement between the                          of entry and residence are not absolute privileges, inasmuch as
Community and the Czech Republic — Freedom of establish-                         their exercise may, in some circumstances, be limited by the
ment — Czech nationals wishing to establish themselves in                        rules of the host Member State governing the entry, stay and
           a Member State as self-employed workers)                              establishment of Czech nationals.
                                                                            3.   Articles 45(3) and 59(1) of that Association Agreement, read
                          (2001/C 331/04)                                        together, do not in principle preclude a system of prior control
                                                                                 which makes the issue by the competent immigration authorities
                                                                                 of leave to enter subject to the condition that the applicant must
                                                                                 show that he genuinely intends to take up an activity in a self-
                    (Language of the case: English)                              employed capacity 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 paragraph 212 of the United Kingdom
                                                                                 Immigration Rules (House of Commons Paper 395) have as
In Case C-257/99: reference to the Court under Article 234                       their very purpose to enable the competent authorities to carry
EC from the High Court of Justice of England and Wales,                          out such checks and are appropriate for achieving such a
Queen’s Bench Division (Divisional Court), for a preliminary                     purpose.
ruling in the proceedings pending before that court between
The Queen and Secretary of State for the Home Department,
ex parte: Julius Barkoci et Marcel Malik — on the interpretation            4.   The condition set out at the end of the first sentence of
of Articles 45 and 59 of the Europe Agreement establishing                       Article 59(1) of that Association Agreement must be construed
an association between the European Communities and their                        as meaning that the obligation on a Czech national, prior to
Member States, of the one part, and the Czech Republic, of                       his departure to the host Member State, to obtain entry
the other part, concluded and approved on behalf of the                          clearance in his country of residence, grant of which is subject
Community by Decision 94/910/ECSC, EC, Euratom of the                            to verification of substantive requirements, such as those laid
Council and the Commission of 19 December 1994 (OJ 1994                          down in paragraph 212 of those Immigration Rules, has
L 360, p. 1) — the Court, composed of: G.C. Rodrı́guez                           neither the purpose nor the effect of making it impossible or
Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),                     excessively difficult for Czech nationals to exercise the rights
M. Wathelet and V. Skouris (Presidents of Chambers),                             granted to them by Article 45(3) of that Agreement, provided
D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen                that the competent authorities of the host Member State exercise
and F. Macken, Judges; J. Mischo, Advocate General; L. Hewlett,                  their discretion in regard to applications for leave to enter
Administrator, for the Registrar, has given a judgment on                        for purposes of establishment, submitted pursuant to that
27 September 2001, in which it has ruled:                                        Agreement at the point of entry into that State, in such a way
                                                                                 that leave to enter can be granted to a Czech national lacking
                                                                                 entry clearance on a basis other than that of the Immigration
                                                                                 Rules if that person’s application clearly and manifestly satisfies
1.    Article 45(3) of the Europe Agreement establishing an associ-              the same substantive requirements as those which would have
      ation between the European Communities and their Member                    been applied had he sought entry clearance in the Czech
      States, of the one part, and the Czech Republic, of the other              Republic.
      part, concluded and approved on behalf of the Community by
      Decision 94/910/ECSC, EC, Euratom of the Council and the
      Commission of 19 December 1994 must be construed as
      establishing, within the scope of application of that Agreement,      (1) OJ C 246 of 28.8.1999.
      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