Christian Grimme v Deutsche Angestellten-Krankenkasse.
Date: 2009-11-12
26. It should be borne in mind at the outset that the Agreement is one of a series of seven sectoral agreements between the same Contracting Parties, signed on 21 June 1999.
27. Those agreements were signed after the rejection by the Swiss Confederation, on 6 December 1992, of the Agreement on the European Economic Area (EEA). The Swiss Confederation, by its refusal, did not subscribe to the project of an economically integrated entity with a single market, based on common rules between its members, but chose the route of bilateral arrangements between the Community and its Member States in specific areas. Therefore, the Swiss Confederation did not join the internal market of the Community the aim of which is the removal of all obstacles to create an area of total freedom of movement analogous to that provided by a national market, which includes inter alia the freedom to provide services and the freedom of establishment.
29. In that context, the interpretation given to the provisions of Community law concerning the internal market cannot be automatically applied by analogy to the interpretation of the Agreement, unless there are express provisions to that effect laid down by the Agreement itself (see, to that effect, Case 270/80 Polydor and RSO  [1982] ECR 329, paragraphs 15 to 19).
33. It is apparent from the wording of Article 1 of the Agreement which defines its objectives, that those objectives are established for the benefit of nationals of the Member States of the European Community and the Swiss Confederation, and thus for the benefit of natural persons. According to Article 1(a) of that Agreement, its objectives are to accord a right of entry, residence, access to work as employed persons, establishment on a self-employed basis and the right to stay in the territory of the Contracting Parties.
34. It should also be noted that the provisions of the Agreement are intended for the following categories of persons, whether Community or Swiss nationals: the self-employed, which include also self-employed frontier workers, workers, which include employed workers, workers on secondment and employed frontier workers, persons providing services, recipients of services, persons employed for a period of less than one year in the territory of a Contracting Party, students, jobseekers, persons not engaged in gainful activity and members of the families of those various categories of nationals. All those categories of persons, with the exception of persons providing services and recipients of services, are by their nature categories of natural persons.
35. Clearly, with the exception of Articles 5(1) of the Agreement and 18 of Annex I to the Agreement, which provide that companies have a right to provide specific services, no provision of that Agreement or its Annex grants any right to legal persons, such as the right of establishment in the territory of one or other of the Contracting Parties.
36. According to the Agreement, the right of establishment in the territory of a Contracting Party applies only to a self-employed person who is a national of a Member State of the European Community or of the Swiss Confederation. Under Article 12(1) of Annex I to that Agreement, a self-employed person wishing to become established in the territory of another Contracting Party in order to pursue a self-employed activity is to receive a renewable residence permit valid for a period of at least five years from its date of issue.
37. It should be added that Article 16(1) of the Agreement, which refers to the application of the acquis communautaire in relations between the Contracting Parties, provides for that application only in the framework of the objectives of the Agreement. Those objectives are listed in Article 1 of the Agreement, subparagraph (a) of which explicitly grants natural persons the right of establishment on a self‑employed basis. That right is confirmed by case-law (see, to that effect, Case C‑13/08 Stamm and Hauser , ECR [2009] I-0000, paragraph 44). By contrast, the grant of such a right to a legal person is not among the objectives pursued by the Agreement.
39. Consequently, it cannot be argued that legal persons were granted the same right of establishment as natural persons under that Agreement.