The Queen v Secretary of State for the Home Department, ex parte Eleanora Ivanova Kondova.
Date: 2001-09-27
31 It should be noted at the outset that, according to settled case-law, a provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, having regard to its wording and to the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see, inter alia, Case C-262/96 Sürül [1999] ECR I-2685, paragraph 60).
34 This rule of equal treatment lays down a precise obligation to produce a specific result and, by its nature, can be relied on by an individual before a national court to request it to set aside the discriminatory provisions of a Member State's legislation making the establishment of a Bulgarian national subject to a condition which is not imposed on that Member State's own nationals, without any further implementing measures being required for that purpose (see, to that effect, Sürül, cited above, paragraph 63).
37 Moreover, the fact that the Association Agreement is intended essentially to promote the economic development of the Republic of Bulgaria and therefore involves an imbalance in the obligations assumed by the Community towards the non-member country concerned is not such as to prevent recognition by the Community of the direct effect of certain provisions of that Agreement (see, to that effect, Sürül, paragraph 72).
39 It follows that the answer to the second question must be that Article 45(1) of the Association Agreement 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 own national laws and regulations regarding entry, stay and establishment, in accordance with Article 59(1) of that Agreement.
The first, third and fourth questions
50 The Court must observe that, according to its case-law established in the context of the interpretation of both the provisions of the Treaty and those of the agreement establishing an association between the European Economic Community and Turkey (OJ 1973 C 133, p. 1), the right to the same treatment as nationals in regard to establishment, as defined by Article 45(1) of the Association Agreement, in wording similar or identical to that of Article 52 of the Treaty, does indeed mean that rights of entry and residence, as corollaries of the right of establishment, are conferred on Bulgarian nationals wishing to pursue activities of an industrial or commercial character, activities of craftsmen, or activities of the professions in a Member State (Royer, cited above, paragraphs 31 and 32, and Case C-37/98 Savas [2000] ECR I-2927, paragraphs 60 and 63).
51 It must, however, also be borne in mind that, according to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO Records [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20).
52 According to that case-law, the extension of the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the Community with a non-member country depends, inter alia, on the aim pursued by each provision in its own particular context. A comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard (see Metalsa, cited above, paragraph 11).
54 It also follows from the wording of Article 59(1) of the Association Agreement that the rights of entry and residence conferred on Bulgarian nationals as corollaries of the right of establishment are not absolute privileges, inasmuch as their exercise may, where appropriate, be limited by the rules of the host Member State concerning entry, stay and establishment of Bulgarian nationals.
59 It is necessary in this regard to determine whether the immigration rules applied by the competent national authorities are appropriate for achieving the objective in view or whether they constitute, in regard to that objective, measures which would strike at the very substance of the rights which Article 45(1) of the Association Agreement grants to Bulgarian nationals by making exercise of those rights impossible or excessively difficult.
61 Application of a national system of prior control to check the exact nature of the activity envisaged by the applicant has a legitimate aim in so far as it makes it possible to restrict the exercise of rights of entry and stay by Bulgarian nationals invoking Article 45(1) of the Association Agreement to persons to whom that provision applies.
75 However, should it turn out that, as in the case in the main proceedings, the requirement concerning submission of a prior request for leave to remain for purposes of establishment has not been met, the competent immigration authorities of the host Member State may in principle refuse that leave to a Bulgarian national invoking Article 45(1) of the Association Agreement, irrespective of whether the other substantive conditions laid down by the national legislation have been satisfied.
77 In those circumstances, as the Advocate General states in point 84 of his Opinion, if Bulgarian nationals were allowed at any time to apply for establishment in the host Member State, notwithstanding a previous infringement of its national immigration legislation, such nationals might be encouraged to remain illegally within the territory of that State and submit to the national system of control only once the substantive requirements set out in that legislation had been satisfied.
79 Such an interpretation would risk depriving Article 59(1) of the Association Agreement of its effectiveness and opening the way to abuse through endorsement of infringements of national legislation on admission and residence of foreigners.
80 Consequently, a Bulgarian national who intends to take up an activity in a Member State as an employed or self-employed person but who gets round the relevant national controls by falsely declaring that he is entering that Member State for the purpose of seasonal work places himself outside the sphere of protection afforded to him under the Association Agreement (see, by analogy, in relation to circumvention of national law by Community nationals improperly or fraudulently invoking Community law, Case C-212/97 Centros [1999] ECR I-1459, paragraph 24 and the case-law cited there).
83 In considering the question whether the requirement that a Bulgarian national whose presence within the host Member State's territory is irregular must submit a new establishment application in due and proper form in his State of origin or, as the case may be, in another country is compatible with the rule of equal treatment laid down in Article 45(1) of the Association Agreement, where such a requirement could not be imposed on the host Member State's own nationals, it is important to bear in mind that the Court has held, with regard to the free movement of workers, that the reservation contained in Article 48(3) of the EC Treaty (now, after amendment, Article 39(3) EC) allows Member States, on the grounds set out in that provision, and in particular grounds justified by requirements of public policy, to take measures against nationals of other Member States which they could not apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or deny them access to it (see, in this regard, Case 41/74 Van Duyn [1974] ECR 1337, paragraph 22; Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 7; Case C-370/90 Singh [1992] ECR I-4265, paragraph 22; Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28; and Case C-171/96 Pereira Roque [1998] ECR I-4607, paragraph 37).
84 This difference in treatment between a Member State's own nationals and those of other Member States derives from a principle of international law which precludes a Member State from refusing its own nationals the right to enter its territory and remain there for any reason, and which the Treaty cannot be assumed to disregard in the context of relations between Member States (Van Duyn, cited above, paragraph 22, and Pereira Roque, cited above, paragraph 38).
91 It follows from all of the foregoing that the answer to the first, third and fourth questions should be as follows:
- The right of establishment, as defined by Article 45(1) of the Association Agreement, means that rights of entry and residence, as corollaries of the right of establishment, are conferred on Bulgarian nationals wishing to pursue activities of an 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 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 governing the entry, stay and establishment of Bulgarian nationals.
- Articles 45(1) and 59(1) of the Association 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 and has reasonable chances of success. Substantive requirements such as those set out in paragraphs 217 and 219 of the Immigration Rules have as their very purpose to enable the competent authorities to carry out such checks and are appropriate for achieving such a purpose.
- Article 59(1) of the Association Agreement must be construed as meaning that the competent authorities of the host Member State may reject an application made pursuant to Article 45(1) of that Agreement on the sole ground that, when that application was submitted, the Bulgarian national was residing illegally within the territory of that State because of false representations made to those authorities or non-disclosure of material facts for the purpose of obtaining initial leave to enter that Member State on a different basis. Consequently, those authorities may require that national to submit, in due and proper form, a new application for establishment on the basis of that Agreement by applying for an entry visa to the competent authorities in his State of origin or, as the case may be, in another country, provided that such measures do not have the effect of preventing such a national from having his situation reviewed at a later date when he submits that new application.
The fifth question