CELEX: C1999/265/05
Language: en
Date: 1999-09-18 00:00:00
Title: Case C-258/99: Reference for a preliminary ruling by the Arrondissementsrechtbank 's-Gravenhage by decision of 2 July 1999 in the case of BASF AG v Bureau voor de Industriële Eigendom

18.9.1999              EN                     Official Journal of the European Communities                                           C 265/3
3. If the answer to question 1 is ‘no’, is a natural person who               iv. the fact that the applicant has had access to the social
   is a national of the Czech Republic nonetheless entitled, in                    welfare system of the Member State and has depended
   domestic legal proceedings brought for the purposes of                          upon it financially whilst establishing himself as a
   challenging a decision of the relevant national authorities                     self-employed person?
   to refuse him admission to establish himself in business
   pursuant to the Agreement, to invoke Article 45 of the                7. If a Member State is not entitled to refuse entry to a person
   Agreement in order to challenge the lawfulness of a                        seeking to establish himself under the Agreement on the
   Member State’s laws and regulations regarding entry, stay                  sole basis that prior entry clearance has not been obtained,
   and establishment of natural persons, and if so on what                    is it legitimate for the competent authorities to grant such
   legal basis?                                                               a person leave to enter only if his application clearly and
                                                                              manifestly satisfies the same substantive criteria as would
                                                                              have been applied had he sought prior entry clearance?
Requirement to obtain prior permission before travelling
                                                                         (1) Europe Agreement establishing an association between the Euro-
                                                                             pean Communities and their Member States, of the one part, and
                                                                             the Czech Republic, of the other part (OJ L 360, 31.12.94, p. 2.)
                                                                         (2) UK and EC legislation — Immigration Rules.
4. If the answer to question 1 or question 3 is ‘yes’, do
   Articles 45 and/or 59 of the Agreement permit a Member
   State to require a person who wishes to travel to a Member
   State purely to establish himself as a self-employed person
   under the Agreement to apply for and obtain prior ‘entry
   clearance’ (that is, prior permission to travel to the State
   for that specific purpose)?
                                                                         Reference for a preliminary ruling by the Arrondisse-
5. If the answer to question 4 is ‘yes’:                                 mentsrechtbank ’s-Gravenhage by decision of 2 July 1999
                                                                         in the case of BASF AG v Bureau voor de Industriële
                                                                                                      Eigendom
   a) is a Member State entitled to make the grant of
        such prior entry clearance conditional upon satisfying
        substantive requirements relating to establishment                                         (Case C-258/99)
        such as those contained in paragraph 212 of
        HC 395 (2); and                                                                            (1999/C 265/05)
   b) may a Member State refuse admission into its territory             Reference has been made to the Court of Justice of the
        to a person seeking to establish himself as a self-              European Communities by decision of 2 July 1999 from the
        employed person under the Agreement on the sole                  Arrondissementsrechtbank ’s-Gravenhage (District Court, The
        ground that such prior entry clearance has not been              Hague), which was received at the Court Registry on 12 July
        obtained?                                                        1999, for a preliminary ruling in the case of BASF AG
                                                                         v Bureau voor de Industriële Eigendom on the following
                                                                         questions:
6. Where such a person has not been granted permission to
   enter the territory of the Member State on any other basis,           I. a. In light of the definitions laid down in Article 1.2,
   is the answer to question 5 affected (and if so how) by any                     1.3 and 1.8 of Regulation (EC) No 1610/96 (1) (‘the
   of the following factors:                                                       regulation’), must ‘product’ within the meaning of
                                                                                   Article 3 of the regulation be understood as meaning
                                                                                   an active substance or the combination of active
   i.   the fact that, on initial arrival at the border of the                     substances, as described in more detail in Article 1.3,
        Member State, the person did not seek admission                            as they occur naturally or by manufacture, including
        pursuant to the Agreement but on some other basis,                         any impurity inevitably resulting from the manufacturing
        which was subsequently rejected;                                           process?
   ii. the length of time which has elapsed between the                       b. Are identical products involved, for the purposes of
        applicant’s initial arrival at the border of the Member                    the regulation, in the case where, by means of a new
        State and the date of his subsequent application for                       process, a plant protection product is obtained which
        establishment as a self-employed person pursuant to                        contains a longer amount of unavoidable impurities
        the Agreement;                                                             than an existing plant protection product with the
                                                                                   same active component?
   iii. the extent of any restrictions placed on the applicant                c. Does the issue of whether a new authorisation must be
        by the national authorities during that time, pursuant                     obtained for this new plant protection product have
        to powers contained in national immigration law, as                        any bearing on the answer to Question I.b. and, if so,
        to his liberty or employment/occupation;                                   how much of a bearing does it have?
 ---pagebreak--- C 265/4                EN                   Official Journal of the European Communities                                     18.9.1999
II. Are the conditions laid down in Article 3(1)(a) and (d) of         1. Can Polish and Czech nationals rely directly on the
     the regulation satisfied if a plant protection product has           Agreements in the sense that they are entitled, vis-à-vis a
     been produced by means of a patented process as a result             Member State, to claim that they derive a right to admission
     of which it contains a lower amount of unavoidable                   and residence from the right laid down in Article 44 of the
     impurities than an existing plant protection product with            Agreement with Poland/Article 45 of the Agreement with
     the same active substance, a new authorisation has been              the Czech Republic to take up and pursue economic
     obtained for this new plant protection product, and the              activities as self-employed persons and to set up and
     patent covering the manufacturing process in question was            manage undertakings, irrespective of the policy which the
     designated as the basic patent within the meaning of                 Member State in question pursues in this regard?
     Article 3(1), opening passage and subparagraph (a)?
(1) OJ 1996 L 198, p. 30.                                              2. If the answer to that question is in the affirmative: is a
                                                                          Member State free undet Article 58 of the Agreement with
                                                                          Poland/ Article 59 of the Agreement with the Czech
                                                                          Republic to make the right to admission and residence
                                                                          subject to specific conditions such as those contained in
                                                                          the policy followed by the Netherlands, which include the
Reference for a preliminary ruling from the Tribunale                     condition that the alien must be able, by carrying on
Amministrative Regionale per la Lombardia (Lombardy                       his business, to receive adequate means of support [in
Regional Administrative Court), third Section, by order                   accordance with Chapter A4/4.2.1. of the 1994 VC, this
of that court of 27 November 1998 in the case of Excelsior                means a net income which is at least equal to the
SNC di Pedrotti Bruna & C., formerly Excelsior SNC di                     subsistence level within the meaning of the Algemene
Costa Rodolfo & C. v Ente Autonomo Fiera Internazionale                   Bijstandswet (General Law on Welfare)]?
di Milano and CIFTAT, a limited liability cooperative
                             society
                                                                       3. Does Article 44 of the Agreement with Poland/Article 45
                        (Case C-260/99)                                   of the Agreement with the Czech Republic allow prosti-
                                                                          tution to be excluded from the notion of ‘economic
                        (1999/C 265/06)                                   activities as self-employed persons’ on the ground that
                                                                          prostitution does not come within the description in
Reference has been made to the Court of Justice of the
                                                                          Article 44(4), opening words and (c), of the Agreement
European Communities by an order of the Tribunale Amminis-
                                                                          with Poland/Article 45(4), opening words and (c), of the
trative Regionale per la Lombardia (Lombardy Regional
                                                                          Agreement with the Czech Republic for reasons of a moral
Administrative Court), third Section, of 27 November 1998,
                                                                          nature, on the ground that prostitution is prohibited in (a
which was received at the Court Registry on 13 July 1999, for
                                                                          majority of) the associate countries, and on the ground
a preliminary ruling in the case of Excelsior SNC di Pedrotti
                                                                          that it gives rise to problems concerning the freedom of
Bruna & C., formerly Excelsior SNC di Costa Rodolfo & C. v
                                                                          action of prostitutes and their independence which are
Ente Autonomo Fiera Internazionale di Milano and CIFTAT, a
                                                                          difficult to monitor?
limited liability cooperative society on the following question:
May the definition of a body governed by public law contained          4. Do Article 43 (ex Article 52) of the EC Treaty and
in Article 1(b) of Council Directive 92/50/EEC (1) of 18 June             Article 44 of the Agreement with Poland/Article 45 of
1992 be deemed applicable to the Ente Autonomo Fiera                      the Agreement with the Czech Republic permit such a
Internazionale di Milano?                                                 distinction to be drawn between the notions of ‘activities
                                                                          as self-employed persons’ and ‘economic activities as
(1) OJ 1992 L 209 of 24.7.1992, p. 1.                                     self-employed persons’ featuring in those respective pro-
                                                                          visions that the activities carried out by a prostitute in a
                                                                          self-employed capacity come within the term used in
                                                                          Article 43 (ex Article 52) of the EC Treaty but not within
                                                                          that used in those articles of the Agreements?
Reference for a preliminary ruling by the Arrondisse-
mentsrechtbank ’s-Gravenhage, sitting in Amsterdam,
by decision of 15 July 1999 in the case of A.M. Jany,                  5. If the answer to the previous question is that the distinction
E. Padevetova, R. Zacalova, Z. Hrubcinova, S. Über-                      therein referred to is permissible:
lackerova, and K.A. Szepietowska v Staatssecretaris van
                             Justitie
                                                                          a) Is it compatible with Article 44 of the Agreement with
                        (Case C-268/99)                                        Poland/Article 45 of the Agreement with the Czech
                                                                               Republic and the freedom of establishment which
                        (1999/C 265/07)                                        those provisions are intended to realise to impose
                                                                               minimum conditions on the self-employed persons
Reference has been made to the Court of Justice of the                         referred to in paragraph (3) of those articles in regard
European Communities by decision of 15 July 1999 from the                      to the range of their activities and also to impose
Arrondissementsrechtbank ’s-Gravenhage (District Court, The                    restrictions such as that:
Hague), sitting in Amsterdam, which was received at the Court
Registry or 19 July 1999, for a preliminary ruling in the
case of A.M. Jany, E. Padevetova R. Zacalova, Z. Hrubcinova,                   — the operator must perform skilled work;
S. Überlackerova, and K.A. Szepietowska v Staatssecretaris van
Justitie on the following questions:                                           — a business strategy must exist;