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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Gloszczuk (External relations) [2001] EUECJ C-63/99 (27 September 2001) URL: http://www.bailii.org/eu/cases/EUECJ/2001/C6399.html Cite as: ECLI:EU:C:2001:488, [2002] All ER (EC) 353, Case C-63/99, [2001] 3 CMLR 46, [2001] EUECJ C-63/99, [2001] ECR I-6369, [2002] INLR 357, EU:C:2001:488, [2001] CEC 358 |
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JUDGMENT OF THE COURT
27 September 2001 (1)
(External relations - Association Agreement between the Communities and Poland - Freedom of establishment - Leave to enter obtained fraudulently)
In Case C-63/99,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office), for a preliminary ruling in the proceedings pending before that court between
The Queen
and
Secretary of State for the Home Department,
ex parte:
Wieslaw Gloszczuk et Elzbieta Gloszczuk,
on the interpretation of Articles 44 and 58 of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, concluded and approved on behalf of the Community by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur), M. Wathelet and V. Skouris (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen and F. Macken, Judges,
Advocate General: S. Alber,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Mr and Mrs Gloszczuk, by M. Muller, Barrister, instructed by J.G. Mayne, Solicitor,
- the United Kingdom Government, by J.E. Collins, acting as Agent, and by E. Sharpston QC,
- the Belgian Government, by A. Snoecx, acting as Agent,
- the German Government, by W.-D. Plessing and C.-D. Quassowski, acting as Agents,
- the Spanish Government, by N. Díaz Abad, acting as Agent,
- the French Government, by K. Rispal-Bellanger and C. Bergeot, acting as Agents,
- the Irish Government, by M.A. Buckley, acting as Agent, R. Fitz Gerald BL and E. Barrington BL,
- the Italian Government, by U. Leanza, acting as Agent, and F. Quadri, avvocato dello Stato,
- the Netherlands Government, by M.A. Fierstra, acting as Agent,
- the Commission of the European Communities, by F. Benyon, M.-J. Jonczy and N. Yerrell, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mr and Mrs Gloszczuk, represented by M. Muller, R.K. Rai and M. Connor, Barristers; of the United Kingdom Government, represented by G. Amodeo, acting as Agent, E. Sharpston and S. Kovats, Barrister; of the German Government, represented by C.-D. Quassowski; of the Spanish Government, represented by N. Díaz Abad; of the French Government, represented by A. Lercher, acting as Agent; of the Irish Government, represented by E. Barrington; of the Italian Government, represented by F. Quadri; of the Netherlands Government, represented by M.A. Fierstra; of the Austrian Government, represented by G. Hesse, acting as Agent; and of the Commission, represented by F. Benyon, M.-J. Jonczy and N. Yerrell, at the hearing on 13 June 2000,
after hearing the Opinion of the Advocate General at the sitting on 14 September 2000,
gives the following
The Association Agreement
Subject to the conditions and modalities applicable in each Member State:
- the treatment accorded to workers of Polish nationality legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own nationals,
- the legally resident spouse and children of a worker legally employed in the territory of a Member State, with the exception of seasonal workers and of workers coming under bilateral agreements within the meaning of Article 41, unless otherwise provided by such agreements, shall have access to the labour market of that Member State, during the period of that worker's authorised stay of employment.
3. Each Member State shall grant, from entry into force of this Agreement, a treatment no less favourable than that accorded to its own companies and nationals for the establishment of Polish companies and nationals as defined in Article 48 and shall grant in the operation of Polish companies and nationals established in its territory a treatment no less favourable than that accorded to its own companies and nationals.
4. For the purposes of this Agreement:
(a) establishment shall mean
(i) as regards nationals, the right to take up and pursue economic activities as self-employed persons and to set up and manage undertakings, in particular companies, which they effectively control. Self-employment and business undertakings by nationals shall not extend to seeking or taking employment in the labour market or confer a right of access to the labour market of another Party. The provisions of this chapter do not apply to those who are not exclusively self-employed;
...
...
(c) economic activities shall in particular include activities of an industrial character, activities of a commercial character, activities of craftsmen and activities of the professions.
For the purpose of Title IV of this Agreement, nothing in the Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons, and supply of services, provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of this Agreement. ...
The national legislation
217. The requirements for an extension of stay in order to remain in business in the United Kingdom are that the applicant can show that:
(i) he has established himself in business in the United Kingdom; and
(ii) his share of the profits of the business is sufficient to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and
(iii) he does not and will not supplement his business activities by taking or seeking employment in the United Kingdom other than his work for the business; and
(iv) in addition he satisfies the requirements of ... paragraph 219.
...
219. Where a person has established himself as a sole trader or in partnership in the United Kingdom he will need, in addition to meeting the requirements at paragraph 217 above, to show:
(i) that he is a national of ... Poland; and
(ii) that he is actively involved in trading or providing services on his own account or in partnership in the United Kingdom; and
(iii) that he, or he together with his partners, is the owner of the assets of the business; and
(iv) in the case of a partnership, that his part in the business does not amount to disguised employment; and
(v) the current financial position in the form of audited accounts for the business.
... the following provisions apply in relation to the refusal of an application for variation of leave to enter or remain or, where appropriate, the curtailment of leave:
...
Grounds on which an application to vary leave to enter or remain in the United Kingdom should normally be refused
(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave;
(3) failure to comply with any conditions attached to the grant of leave to enter or remain;
....
The dispute in the main proceedings
The questions submitted for preliminary ruling
(1) Does Article 44 of the Association Agreement between the EEC and the Republic of Poland ... confer rights of establishment upon a Polish national whose presence within the territory of a Member State is unlawful under national immigration law by reason of a breach of an express condition, imposed upon his admission to the territory as a visitor, relating to the permitted duration of his stay within that Member State when that breach arose prior to his becoming a self-employed person and his application to take up and pursue activities under Article 44 of the Agreement?
(2) If the answer to the first question is yes, does Article 44 of the Agreement have direct effect within the national legal systems of Member States, notwithstanding the provisions of Article 58 of the Agreement?
(3) If the answer to the second question is yes,
(i) to what extent may a Member State apply its laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons, and supply of services, to persons invoking Article 44 of the Agreement, without violating the proviso contained in the penultimate sentence of Article 58(1) of the Agreement and, inter alia, the principle of proportionality?
(ii) does Article 58, in any and if so what circumstances, permit the refusal of an application under Article 44 of the Agreement made by someone whose presence in the Member State is otherwise unlawful?
The second question
The first and third questions
The scope of Article 44(3) of the Association Agreement and the possible extension to that provision of the interpretation of Article 52 of the EC Treaty (now, after amendment, Article 43 EC)
Whether the restrictions imposed on the right of establishment by the host Member State's immigration legislation are compatible with the condition set out in Article 58(1) of the Association Agreement
The power of the competent authorities of the host Member State to refuse leave to remain, applied for by a Polish national invoking Article 44(3) of the Association Agreement, on the sole ground that his presence within the territory of that State was unlawful
Whether the requirement for a new application for establishment to be submitted in due and proper form is compatible with the rule of equal treatment laid down in Article 44(3) of the Association Agreement and with the condition mentioned in Article 58(1) thereof
- The right of establishment, as defined by Article 44(3) of the Association Agreement, means that rights of entry and residence, as corollaries of the right of establishment, are conferred on Polish 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 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 Polish nationals.
- Articles 44(3) and 58(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 58(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 44(3) of that Agreement on the sole ground that, when that application was submitted, the Polish national was residing illegally within the territory of that State because of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a different basis or of non-compliance with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State. 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.
Costs
87. The costs incurred by the United Kingdom, Belgian, German, Spanish, French, Irish, Italian, Netherlands and Austrian Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office), by order of 9 December 1998, hereby rules:
1. Article 44(3) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, concluded and approved on behalf of the Community by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 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 Polish 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 58(1) of that Agreement.
2. The right of establishment, as defined by Article 44(3) of the above Association Agreement, means that rights of entry and residence, as corollaries of the right of establishment, are conferred on Polish 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 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 Polish nationals.
3. Articles 44(3) and 58(1) of the above 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 United Kingdom Immigration Rules (House of Commons Paper 395) have as their very purpose to enable the competent authorities to carry out such checks and are appropriate for achieving such a purpose.
4. Article 58(1) of the above Association Agreement must be construed as meaning that the competent authorities of the host Member State may reject an application made pursuant to Article 44(3) of that Agreement on the sole ground that, when that application was submitted, the Polish national was residing illegally within the territory of that State because of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a different basis or of non-compliance with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State. 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.
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Rodríguez Iglesias
Wathelet
Puissochet
SchintgenMacken
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Delivered in open court in Luxembourg on 27 September 2001.
R. Grass G.C. Rodríguez Iglesias
Registrar President
1: Language of the case: English.
