The Queen v Secretary of State for the Home Department, ex parte Julius Barkoci and Marcel Malik.
Date: 2001-09-27
31 At the outset, it must be noted 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 the legislation of a Member State making the establishment of a Czech 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 Czech Republic 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).
50 It must be pointed out that, according to the 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(3) of the Association Agreement, in wording similar or identical to that of Article 52 of the Treaty, does indeed mean that a right of entry and residence are conferred, as corollaries of the right of establishment, on Czech nationals wishing to pursue activities of an industrial or commercial character, activities of craftsmen, or activities of the professions in a Member State (see 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).
53 The Association Agreement is designed simply to create an appropriate framework for the Czech Republic's gradual integration into the Community, with a view to its possible accession, whereas the purpose of the Treaty is to create an internal market, establishment of which involves the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital (see Article 3(c) of the EC Treaty (now, after amendment, Article 3(1)(c) EC)).
54 It also follows from the wording of Article 59(1) of the Association Agreement that the rights of entry and residence conferred on Czech 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 regarding entry, stay and establishment of Czech nationals.
55 It follows that the interpretation of Article 52 of the Treaty, as reflected in the Court's case-law, cannot be extended to Article 45(3) of the Association Agreement.
56 The argument put forward by Mr Barkoci and Mr Malik, to the effect that application by the competent authorities of a Member State of the national immigration rules requiring Czech nationals to obtain leave to enter is in itself liable to render ineffective the rights granted to such persons by Article 45(3) of the Association Agreement, cannot for that reason be accepted.
61 In order to rule on whether that argument is well founded, it should first be noted that, since Article 45(3) of the Association Agreement applies only to those persons who are exclusively self-employed, in accordance with the final sentence of Article 45(4)(a)(i) of that Agreement, it is necessary to determine whether the activity contemplated in the host Member State by persons covered by that provision is an activity performed by an employed or a self-employed person.
62 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 Czech nationals invoking Article 45(3) of the Association Agreement to persons to whom that provision applies.
65 In addition, such a system of control involves carrying out detailed investigations which, particularly on grounds of language, it would be difficult for an immigration officer to conduct at the point of entry into the United Kingdom. Consequently, the requirement that verification of the substantive conditions be carried out in the Czech Republic allows easier access to information concerning the situation of Czech nationals wishing to become established in the United Kingdom.
66 It follows that national rules requiring a Czech national, prior to his departure to the host Member State, to obtain entry clearance, grant of which is subject to verification of substantive requirements such as those laid down in paragraph 212 of the Immigration Rules, must be regarded as being compatible with the Association Agreement.
72 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, it appears to be in line with the logic of the system of prior control, as well as being justified in regard to the Association Agreement, that, in the exercise of their discretion as to an applicant's individual position, those authorities carry out an examination into the soundness 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.
74 It follows that Articles 45(3) and 59(1) of the Association 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.
Whether the requirement that a new application to become established be submitted in due and proper form is compatible with the rule on equal treatment set out in Article 45(3) of the Association Agreement
77 It should be borne in mind, as pointed out in paragraph 22 above, that Mr Barkoci and Mr Malik were deemed, in accordance with section 11(1) of the Immigration Act, not to have entered the United Kingdom and that their applications to leave to remain were for that reason treated as applications for initial leave to enter. It must be noted in this regard that, contrary to what Mr Barkoci and Mr Malik contend, in the context of a national system based on appropriate verification measures prior to a Czech national's departure to the host Member State, temporary physical admission of that person, where he does not have entry clearance for the territory of that State, is in no way equivalent to actual leave to enter that State.
78 The analysis of the compatibility with the Association Agreement of a national system for monitoring immigration that is based on the obligation to apply for prior leave to enter cannot be affected by the fact that, while awaiting the outcome of an appeal against a previous decision which, on a separate basis, refused a Czech national entry to the Member State concerned, that person was admitted on a temporary basis to that State, prior to submission of an application to become established, and authorised to work or receive public funds, with a view to respecting human dignity and demonstrating solidarity (see, along these lines, Case C-192/89 Sevince [1990] ECR I-3461, paragraph 31, and Case C-237/91 Kus [1992] ECR I-6781, paragraphs 12 to 17).
79 Consequently, Mr Barkoci and Mr Malik cannot effectively rely on the mere fact that they were admitted temporarily to the United Kingdom in order to contend that they had acquired the right to become established in that Member State as self-employed workers, that being a right liable to be adversely affected by the requirement that they submit, in due and proper form, a new application for entry clearance in their State of origin or, as the case may be, in another country.
80 In any event, it must also be borne 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 thereto (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).
81 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).