CELEX: C2002/003/11
Language: en
Date: 2002-01-05 00:00:00
Title: Judgment of the Court of 20 November 2001 in Case C-268/99 (reference for a preliminary ruling from the Arrondissementsrechtbank te 's-Gravenhage): Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie (External relations — Association agreements between the Communities and Poland and between the Communities and the Czech Republic — Freedom of establishment — "Economic activities" — Whether or not they include the activity of prostitution)

C 3/8                     EN                      Official Journal of the European Communities                                           5.1.2002
      and proper form, a new application for establishment on the            Member States, of the one part, and the Czech Republic, of
      basis of that Agreement by applying for an entry visa to the           the other part, concluded and approved on behalf of the
      competent authorities in his State of origin or, as the case may       Communities by Decision 94/910/ECSC, EC, Euratom of the
      be, in another country, provided that such measures do not have        Council and the Commission of 19 December 1994 (OJ 1994
      the effect of preventing such a national from having his situation     L 360, p. 1) — the Court, composed of: G.C. Rodrı́guez Iglesias,
      reviewed at a later date when he submits that new application.         President, P. Jann, F. Macken and N. Colneric (Presidents
                                                                             of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola
                                                                             (Rapporteur), L. Sevón, M. Wathelet, V. Skouris and
(1) OJ C 246 of 28.8.1999.
                                                                             C.W.A. Timmermans, Judges; P. Léger, Advocate General;
                                                                             L. Hewlett, Administrator, for the Registrar, has given a
                                                                             judgment on 20 November 2001, in which it has ruled:
                                                                             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 Communities by
                   JUDGMENT OF THE COURT                                          Decision 93/743/Euratom, ECSC, EC of the Council and the
                                                                                  Commission of 13 December 1993, and Article 45(3) of the
                                                                                  Europe Agreement establishing an association between the
                        of 20 November 2001                                       European Communities and their Member States, of the one
                                                                                  part, and the Czech Republic, of the other part, concluded
                                                                                  and approved on behalf of the Communities by Decision
in Case C-268/99 (reference for a preliminary ruling from                         94/910/ECSC, EC, Euratom of the Council and the Com-
the Arrondissementsrechtbank te ’s-Gravenhage): Aldona                            mission of 19 December 1994, must be construed as estab-
Malgorzata Jany and Others v Staatssecretaris van                                 lishing, within the respective scopes of application of those two
                                Justitie (1)                                      Agreements, 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
(External relations — Association agreements between the                          individuals.
Communities and Poland and between the Communities
and the Czech Republic — Freedom of establishment —
‘Economic activities’ — Whether or not they include the                           The direct effect which those provisions must therefore be
                        activity of prostitution)                                 recognised as having means that Polish and Czech nationals
                                                                                  relying on those provisions have the right to invoke them before
                                                                                  the courts of the host Member State, notwithstanding the fact
                             (2002/C 3/11)                                        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
                      (Language of the case: Dutch)                               Article 58(1) of the above Agreement with the Republic of
                                                                                  Poland and Article 59(1) of the above Agreement with the
                                                                                  Czech Republic.
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
                                                                             2.   The right of establishment, as defined by Article 44(3) of
                                                                                  the above Agreement with the Republic of Poland and by
                                                                                  Article 45(3) of the above Agreement with the Czech Republic,
In Case C-268/99: reference to the Court under Article 234 EC                     means that rights of entry and residence, as corollaries of the
from the Arrondissementsrechtbank te ’s-Gravenhage (District                      right of establishment, are conferred on Polish and Czech
Court, The Hague) (Netherlands) for a preliminary ruling in                       nationals wishing to pursue activities of an industrial or
the proceedings pending before that court between Aldona                          commercial character, activities of craftsmen or activities of the
Malgorzata Jany and Others and Staatssecretaris van Justitie —                    professions in a Member State.
on the interpretation of Articles 44 and 58 of the Europe
Agreement establishing an association between the European
Communities and their Member States, of the one part, and                         However, it follows from Article 58(1) of the above Agreement
the Republic of Poland, of the other part, concluded and                          with the Republic of Poland and from Article 59(1) of the
approved on behalf of the Communities by Decision                                 above Agreement with the Czech Republic that those rights of
93/743/Euratom, ECSC, EC of the Council and the Com-                              entry and residence are not absolute privileges, inasmuch as
mission of 13 December 1993 (OJ 1993 L 348, p. 1), and of                         their exercise may, in some circumstances, be limited by the
Articles 45 and 59 of the Europe Agreement establishing an                        rules of the host Member State governing the entry, stay and
association between the European Communities and their                            establishment of Polish and Czech nationals.
 ---pagebreak--- 5.1.2002                 EN                      Official Journal of the European Communities                                               C 3/9
3.   Articles 44(3) and 58(1) of the above Agreement with the                                JUDGMENT OF THE COURT
     Republic of Poland, read together, and Articles 45(3) and 59(1)
     of the above Agreement with the Czech Republic, read together,
     do not in principle preclude a system of prior control which                                 of 20 September 2001
     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            in Case C-383/99 P: Procter & Gamble Company v Office,
     entering into employment or having recourse to public funds,           for Harmonisation in the Internal Market (Trade Marks
     and that he possesses, from the outset, sufficient financial                                and Designs) (OHIM) (1)
     resources for carrying out the activity in question as a self-
     employed person and has reasonable chances of success.
                                                                            (Appeal — Admissibility — Community trade mark —
     Substantive requirements such as those set out in section 4.2.3        Regulation (EC) No 40/94 — Absolute ground for refusal
     of Chapter B 12 of the Netherlands Vreemdelingencirculaire             to register — Distinctive character — Marks consisting
     (Circular on Aliens), in particular the requirement that Polish        exclusively of descriptive signs or indications — ‘BABY-
     and Czech nationals wishing to become established in the host                                         DRY’)
     Member State must from the outset have sufficient financial
     resources to carry on the activity in question in a self-employed
     capacity, are designed precisely to enable the competent auth-                                    (2002/C 3/12)
     orities of that State to carry out such checks and are appropriate
     for ensuring that such an objective is attained.
                                                                                                (Language of the case: French)
4.   Article 44(4)(a)(i) of the above Agreement with the Republic
     of Poland and Article 45(4)(a)(i) of the above Agreement with
     the Czech Republic must be construed to the effect that the
     ‘economic activities as self-employed persons’ referred to in those    (Provisional translation; the definitive translation will be published
     provisions have the same meaning and scope as the ‘activities                             in the European Court Reports)
     as self-employed persons’ referred to in Article 52 of the EC
     Treaty (now, after amendment, Article 43 EC).
     The activity of prostitution pursued in a self-employed capacity
     can be regarded as a service provided for remuneration and is          In Case C-383/99P: Procter and Gamble Company established
     therefore covered by both those expressions.                           in Cincinnatti (United States) represented by T. van Innis,
                                                                            avocat, appeal against the judgment of the Court of First
5.   Article 44 of the above Agreement with the Republic of Poland          Instance of the European Communities (Second Chamber) of
     and Article 45 of the above Agreement with the Czech Republic          8 July 1999 in Case T-163/98 Procter & Gamble v OHIM
     must be construed to the effect that prostitution is an economic       (‘BABY-DRY’) [1999] ECR II-2383, seeking to have that
     activity pursued by a self-employed person as referred to in those     judgment set aside in so far as the Court of First Instance ruled
     provisions, where it is established that it is being carried on by     that the First Board of Appeal of the Office for Harmonisation
     the person providing the service:                                      in the Internal Market (Trade Marks and Designs) had not
                                                                            infringed Article 7(1)(c) of Council Regulation (EC) No 40/94
                                                                            of 20 December 1993 on the Community trade mark (OJ
     —      outside any relationship of subordination concerning the        1994 L 11, p. 1) in adopting its decision of 31 July 1998 (Case
            choice of that activity, working conditions and conditions      R 35/1998-1), the other party to the proceedings being the
            of remuneration;                                                Office for Harmonisation in the Internal Market (Trade Marks
                                                                            and Designs) (Agents: O. Montalto and E. Joly) — the Court,
                                                                            composed of: G.C. Rodrı́guez Iglesias, President, C. Gulmann,
     —      under that person’s own responsibility; and                     M. Wathelet and V. Skouris (Presidents of Chambers),
                                                                            J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen,
     —      in return for remuneration paid to that person directly         F. Macken, N. Colneric and S. von Bahr, Judges, F.G. Jacobs,
            and in full.                                                    Advocate General; D. Louterman-Hubeau for the Registrar,
                                                                            gave a judgment on 20 September 2001, in which it:
     It is for the national court to determine in each case, in the light
     of the evidence adduced before it, whether those conditions are
     satisfied.                                                             1.    Annuls the judgment of the Court of First Instance of 8 July
                                                                                  1999 in Case T-163/98 Procter & Gamble v OHIM (‘BABY-
                                                                                  DRY’), in so far as it found that the First Board of Appeal of
                                                                                  the Office for Harmonisation in the Internal Market (Trade
(1) OJ C 265 of 18.9.1999.                                                        Marks and Designs) did not infringe Article 7(1)(c) of Council
                                                                                  Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                                  Community trade mark in adopting its decision of 31 July
                                                                                  1998 (Case R 35/1998-1);