Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie.
Date: 2004-11-16
18. The direct effect which Article 45(1) of the Communities-Bulgaria Agreement, Article 44(3) of the Communities-Poland Agreement and Article 45(3) of the Communities-Slovakia Agreement must be recognised as having means that Bulgarian, Polish and Slovak nationals relying on those provisions have the right to invoke them 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 laws and regulations regarding entry, stay and establishment, in accordance with Article 59(1) of the Communities-Bulgaria Agreement, Article 58(1) of the Communities-Poland Agreement and Article 59(1) of the Communities-Slovakia Agreement (see Gloszczuk , cited above, paragraph 38, Kondova , cited above, paragraph 39, and Case C-268/99 Jany and Others  [2001] ECR I-8615, paragraph 28).
19. While the right of establishment, as defined by the first three provisions cited in the preceding paragraph, entails the conferral of rights of entry and residence as corollaries of that right, it nevertheless follows from the final three provisions cited there that those rights of entry and residence are not absolute privileges, inasmuch as their exercise may, in some circumstances, be limited by the rules of the host Member State concerning the entry, stay and establishment of such nationals ( Gloszczuk , paragraph 51, Kondova , paragraph 54, and Jany , paragraph 28).
20. In order to be compatible with the condition set out in Article 59(1) of the Communities-Bulgaria Agreement, Article 58(1) of the Communities-Poland Agreement and Article 59(1) of the Communities-Slovakia Agreement, the restrictions imposed on the right of establishment by the host Member State’s immigration legislation must, however, be appropriate for achieving the objective in view and not constitute, in regard to that objective, measures which would strike at the very substance of the rights which Articles 45(1), 44(3) and 45(3) of the respective Association Agreements grant to Bulgarian, Polish and Slovak nationals by making exercise of those rights impossible or excessively difficult ( Gloszczuk , paragraph 56, and Kondova , paragraph 59).
21. In this connection, provisions such as Articles 45(1) and 59(1) of the Communities-Bulgaria Agreement, read together, Articles 44(3) and 58(1) of the Communities-Poland Agreement, read together, and Articles 45(3) and 59(1) of the Communities-Slovakia Agreement, read together, do not in principle preclude a system of prior control which 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 entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success ( Gloszczuk , paragraph 86, Kondova , paragraph 91, and Jany , paragraph 31).
22. Such a national system of control to check the exact nature of the activity contemplated by applicants, put into operation before they leave for the host Member State, has a legitimate objective in so far as it makes it possible to restrict the exercise of rights of entry and residence by nationals of the countries concerned who invoke those provisions to persons to whom the provisions apply ( Gloszczuk , paragraph 58, Kondova , paragraph 61, and Barkoci and Malik , paragraph 62).
23. Furthermore, such a system of control is capable in particular of being justified in light of the fact that it is easier to check the substantive conditions, and to carry out the detailed investigations which that entails, in the State of origin, having regard in particular to both considerations of language and considerations related to access to information concerning the situation of foreign nationals wishing to become established in a Member State (see Barkoci and Malik , paragraphs 65 and 66).
27. It follows in particular that the scheme applicable to such temporary residence permits must be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings (see, by analogy, Case C‑157/99 Smits and Peerbooms  [2001] ECR I-5473, paragraph 90). It should be remembered, in this last respect, that Community law requires effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law, and that this principle of effective judicial protection constitutes a general principle which stems from the constitutional traditions common to the Member States and is enshrined by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, in Articles 6 and 13 of the Convention (see, in particular, Case 222/84 Johnston  [1986] ECR 1651, paragraphs 18 and 19, and Case C-467/01 Eribrand  [2003] ECR I-6471, paragraph 61).
30. As regards, first, the circumstance that the persons concerned were legally resident in the Netherlands under the free period provided for by Netherlands legislation, it should be noted at the outset that, in the context of a national system based on appropriate verification measures prior to a foreign national’s departure to the host Member State with a view to establishment there as a self-employed person, the foreign national’s temporary admission into the territory of the host Member State on another basis, when he lacks the entry clearance which may be given after that verification, is in no way equivalent to such clearance, so that he cannot effectively rely on the mere fact of such temporary admission in order to contend that he has acquired the right to become established in that Member State as a self-employed person (see, by analogy, Barkoci and Malik , paragraphs 77 to 79).
31. It is, furthermore, apparent from the Court’s case-law that it is compatible with Article 58(1) of the Communities-Poland Agreement, and therefore with Article 59(1) of the Communities-Bulgaria Agreement and of the Communities-Slovakia Agreement, for the competent authorities of the host Member State to reject an application made under Article 44(3), Article 45(1) or Article 45(3) of those agreements respectively on the ground that, when that application was made, the applicant was residing illegally within its territory by reason of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a separate basis or of the failure to comply with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State ( Gloszczuk , paragraph 77).
35. As regards, second, the circumstance that the Bulgarian, Polish or Slovak national who applies in the Netherlands for a full residence permit with a view to establishment on the basis of the Association Agreements claims to satisfy clearly and manifestly the substantive requirements which should have been checked within the framework of the system of prior control set up by the Netherlands legislation, it is admittedly true that the Court held in Barkoci and Malik , at paragraph 74, that Articles 45(3) and 59(1) of the Communities-Czech Republic Agreement do not preclude the competent immigration authorities of the host Member State from requiring a Czech national, prior to his departure to that State, to obtain entry clearance, grant of which is subject to verification of substantive requirements relating to establishment, such as those set out in paragraph 212 of the Immigration Rules, provided that those authorities exercise their discretion in regard to applications for leave to enter for the purpose of becoming established, submitted pursuant to that agreement at the point of entry into that State, in such a way that leave to enter can be granted to a Czech national, on a basis other than that of the Immigration Rules, if that person’s application clearly and manifestly satisfies the same substantive requirements as those which would have been applied had he sought entry clearance in the Czech Republic.
36. However, as the Court stated at paragraph 72 of the judgment in Barkoci and Malik , it is to the extent to which the competent immigration authorities in the host Member State adopt a policy of setting aside the mandatory requirement of entry clearance that it appears to be in line with the logic of the system of prior control, as well as justified in regard to the Communities-Czech Republic Agreement, that, in the exercise of their discretion as to an applicant’s individual position, those authorities carry out an assessment of an application to become established submitted pursuant to that agreement at the point of entry into that Member State which is less extensive than that carried out in the case of an application for entry clearance submitted by the Czech national in his country of residence.
38. Without prejudice to the ability of the Member States to lay down a system of prior control coupled with a possibility of examination of applications made directly in national territory, it is consistent with the logic of a system of prior control such as that applied by the Kingdom of the Netherlands and permissible under the Association Agreements for that Member State to provide in its legal order that, where the requirement to submit, in advance, in their country of origin or the country where they are permanently resident an application for a temporary residence permit with a view to establishment is not met, the competent authorities of that Member State are to refuse Bulgarian, Polish or Slovak nationals, relying respectively on Article 45(1) of the Communities-Bulgaria Agreement, Article 44(3) of the Communities-Poland Agreement and Article 45(3) of the Communities-Slovakia Agreement, the full residence permit which they seek, irrespective of whether the substantive requirements to which grant of such a temporary residence permit is subject are in fact met (see, by analogy, Gloszczuk , paragraph 70, and Kondova , paragraph 75).