Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie.
Date: 2001-11-20
28 It follows that the answer to the first question must be that:
- Article 44(3) of the Association Agreement between the Communities and Poland and Article 45(3) of the Association Agreement between the Communities and the Czech Republic must be construed as establishing, within the respective scopes of application of those two 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 individuals.
The direct effect which those provisions must therefore be 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 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 58(1) of the Association Agreement between the Communities and Poland and Article 59(1) of the Association Agreement between the Communities and the Czech Republic.
- The right of establishment, as defined by Article 44(3) of the Association Agreement between the Communities and Poland and by Article 45(3) of the Association Agreement between the Communities and the Czech Republic, means that rights of entry and residence, as corollaries of the right of establishment, are conferred on Polish and Czech 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 58(1) of the Association Agreement between the Communities and Poland and from Article 59(1) of the Association Agreement between the Communities and the Czech Republic 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 Polish and Czech nationals.
33 According to settled case-law, the pursuit of an activity as an employed person or the provision of services for remuneration must be regarded as an economic activity within the meaning of Article 2 of the EC Treaty (now, after amendment, Article 2 EC), provided that the work performed is genuine and effective and not such as to be regarded as purely marginal and ancillary (see, inter alia, Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraphs 53 and 54).
34 Since the essential characteristic of an employment relationship within the meaning of Article 48 of the EC Treaty (now, after amendment, Article 39 EC) is the fact that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration, any activity which a person performs outside a relationship of subordination must be classified as an activity pursued in a self-employed capacity for the purposes of Article 52 of the Treaty (see Case C-107/94 Asscher [1996] ECR I-3089, paragraphs 25 and 26).
35 With regard to the interpretation of Article 44(4)(a)(i) of the Association Agreement between the Communities and Poland and of Article 45(4)(a)(i) of the Association Agreement between the Communities and the Czech Republic, it is important to point out that, according to well-established case-law, an international treaty must be interpreted not solely by reference to the terms in which it is worded but also in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties stipulates in that respect that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (see, inter alia, to that effect, Opinion 1/91 [1991] ECR I-6079, paragraph 14, Case C-312/91 Metalsa [1993] ECR I-3751, paragraph 12, and Case C-416/96 Eddline El-Yassini [1999] ECR I-1209, paragraph 47).
40 This finding is not contradicted by the fact that, in paragraph 52 of Gloszczuk and paragraph 55 of Barkoci and Malik, the Court ruled that the interpretation of Article 52 of the Treaty, as reflected in its case-law, cannot be extended to Article 44(3) of the Association Agreement between the Communities and Poland or Article 45(3) of the Association Agreement between the Communities and the Czech Republic.
41 In paragraphs 47 to 53 of Gloszczuk and paragraphs 50 to 56 of Barkoci and Malik, the Court addressed the question of the compatibility of the restrictions which the immigration legislation of the host Member State imposes on the right of establishment, and not the question of the interpretation of the expression economic activities as self-employed persons used in those Association Agreements. The Court there rejected the argument that, since the right of establishment provided for by those Agreements is equivalent to the right of establishment governed by Article 52 of the Treaty, application by the competent authorities of the host Member State of the national immigration rules requiring Polish and Czech nationals to obtain leave to enter or reside is in itself liable to render ineffective the rights granted to such persons by Article 44(3) of the Association Agreement between the Communities and Poland or Article 45(3) of the Association Agreement between the Communities and the Czech Republic.
47 According to settled case-law, one language version of a multilingual text of Community law cannot alone take precedence over all other versions, since the uniform application of Community rules requires that they be interpreted in accordance with the actual intention of the person who drafted them and the objective pursued by that person, in particular in the light of the versions drawn up in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3, and Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 15). The same conclusion must also be drawn where, as in the present case, two language versions diverge from all the others, a fortiori since Article 120 of the Association Agreement between the Communities and Poland and Article 122 of the Association Agreement between the Communities and the Czech Republic provide that those Agreements are also valid in each of the languages in which they have been drawn up.
49 Consequently, prostitution is a provision of services for remuneration which, as indicated in paragraph 33 above, falls within the concept of economic activities.
56 So far as concerns the question of the immorality of that activity, raised by the referring court, it must also be borne in mind that, as the Court has already held, it is not for the Court to substitute its own assessment for that of the legislatures of the Member States where an allegedly immoral activity is practised legally (see, with regard to abortion, Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 20, and, with regard to lotteries, Case C-275/92 Schindler [1994] ECR I-1039, paragraph 32).
57 Far from being prohibited in all Member States, prostitution is tolerated, even regulated, by most of those States, notably the Member State concerned in the present case.
59 However, as the United Kingdom Government and the Commission have correctly pointed out, under the Court's case-law a national authority's use of a public-policy derogation presupposes that there is a genuine and sufficiently serious threat affecting one of the fundamental interests of society (see Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 8, Case C-348/96 Calfa [1999] ECR I-11, paragraph 21, and, on the interpretation of the provisions adopted within the context of the association arrangements between the European Economic Community and Turkey, Case C-340/97 Nazli [2000] ECR I-957, paragraphs 56 to 61).
60 Although Community law does not impose on Member States a uniform scale of values as regards the assessment of conduct which may be considered to be contrary to public policy, conduct may not be considered to be of a sufficiently serious nature to justify restrictions on entry to, or residence within, the territory of a Member State of a national of another Member State where the former Member State does not adopt, with respect to the same conduct on the part of its own nationals, repressive measures or other genuine and effective measures intended to combat such conduct (Adoui and Cornuaille, cited above, paragraph 8).
65 Since Article 44(3) of the Association Agreement between the Communities and Poland and Article 45(3) of the Association Agreement between the Communities and the Czech Republic apply only to persons who are exclusively self-employed, in accordance with the final sentence of Article 44(4)(a)(i) and of Article 45(4)(a)(i) of those Agreements respectively, it is necessary to determine whether the activity planned in the host Member State by persons benefiting from those provisions is an activity performed in an employed or a self-employed capacity (see Gloszczuk, paragraph 57, and Barkoci and Malik, paragraph 61).