CELEX: C2002/003/10
Language: en
Date: 2002-01-05 00:00:00
Title: Judgment of the Court of 27 September 2001 in Case C-235/99 (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: Eleonora Ivanova Kondova (External relations — Association Agreement between the Communities and Bulgaria — Freedom of establishment — Leave to enter fraudulently obtained — Obligation on a Member State to pay compensation for damage caused to an individual invoking a right of establishment which is directly effective under the Association Agreement)

5.1.2002               EN                     Official Journal of the European Communities                                                 C 3/7
4.    As a result of the invalidity of Commission Regulation             M. Wathelet and V. Skouris (Presidents of Chambers),
      No 1521/95, the export refunds for cereal-based feedingstuffs,     D.A.O. Edward, J.P. Puissochet, P. Jann, L. Sevón, R. Schintgen
      for which the application was made in export declarations          and F. Macken, Judges; S. Alber, Advocate General; H. von
      accepted by the competent customs service on 30 June 1995          Holstein, Deputy Registrar, has given a judgment on 27 Sep-
      and for which advance fixing had not been requested, are to be     tember 2001, the operative part of which is as follows:
      calculated in accordance with Commission Regulation (EC)
      No 1415/95 of 22 June 1995 fixing the export refunds on
      cereal-based compound feedingstuffs.                               1.   Article 45(1) of the Europe Agreement establishing an associ-
                                                                              ation between the European Communities and their Member
                                                                              States, of the one part, and the Republic of Bulgaria, of the
                                                                              other part, concluded and approved on behalf of the Community
(1) OJ C 246 of 28.8.1999.                                                    by Decision 94/908/ECSC, EC, Euratom of the Council and
                                                                              the Commission of 19 December 1994, 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.
                                                                              The direct effect which that provision must therefore be
                                                                              recognised as having means that Bulgarian 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
                 JUDGMENT OF THE COURT                                        own national laws and regulations regarding entry, stay and
                                                                              establishment, in accordance with Article 59(1) of that
                                                                              Agreement.
                     of 27 September 2001
                                                                         2.   The right of establishment, as defined by Article 45(1) of the
in Case C-235/99 (reference for a preliminary ruling from                     above Association Agreement, means that rights of entry and
the High Court of Justice of England and Wales, Queen’s                       residence, as corollaries of the right of establishment, are
Bench Division (Divisional Court)): The Queen v Sec-                          conferred on Bulgarian nationals wishing to pursue activities of
retary of State for the Home Department, ex parte:                            an industrial or commercial character, activities of craftsmen, or
                 Eleonora Ivanova Kondova (1)                                 activities of the professions in a Member State. However, it
                                                                              follows from Article 59(1) of that Agreement that those rights
                                                                              of entry and residence are not absolute privileges, inasmuch as
(External relations — Association Agreement between the                       their exercise may, in some circumstances, be limited by the
Communities and Bulgaria — Freedom of establishment —                         rules of the host Member State governing the entry, stay and
Leave to enter fraudulently obtained — Obligation on a                        establishment of Bulgarian nationals.
Member State to pay compensation for damage caused to an
individual invoking a right of establishment which is directly
                                                                         3.   Articles 45(1) and 59(1) of the above Association Agreement,
          effective under the Association Agreement)
                                                                              read together, do not in principle preclude a system of prior
                                                                              control which makes the issue by the competent immigration
                          (2002/C 3/10)                                       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
                   (Language of the case: English)                            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 paragraphs 217 and 219
                                                                              of the United Kingdom Immigration Rules (House of Commons
                                                                              Paper 395) have as their very purpose to enable the competent
In Case C-235/99: reference to the Court under Article 234                    authorities to carry out such checks and are appropriate for
EC from the High Court of Justice of England and Wales,
                                                                              achieving such a purpose.
Queen’s Bench Division (Divisional Court), for a preliminary
ruling in the proceedings pending before that court between
The Queen and Secretary of State for the Home Department,                4.   Article 59(1) of the above Association Agreement must be
ex parte: Eleanora Ivanova Kondova — on the interpretation                    construed as meaning that the competent authorities of the host
of Articles 45 and 59 of the Europe Agreement establishing                    Member State may reject an application made pursuant to
an association between the European Communities and their                     Article 45(1) of that Agreement on the sole ground that, when
Member States, of the one part, and the Republic of Bulgaria,                 that application was submitted, the Bulgarian national was
of the other part, concluded and approved on behalf of the                    residing illegally within the territory of that State because of
Community by Decision 94/908/ECSC, EC, Euratom of the                         false representations made to those authorities or non-disclosure
Council and the Commission of 19 December 1994 (OJ 1994                       of material facts for the purpose of obtaining initial leave to
L 358, p. 1) — the Court, composed of: G.C. Rodrı́guez                        enter that Member State on a different basis. Consequently,
Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),                  those authorities may require that national to submit, in due
 ---pagebreak--- 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.