Keywords
Summary

Keywords

1. International agreements - Agreements concluded by the Community - Direct effect - Conditions - Article 45(3) of the Association Agreement between the Communities and the Czech Republic

(Association Agreement between the Communities and the Czech Republic, Arts 45(3) and 59(1))

2. International agreements - Association Agreement between the Communities and the Czech Republic - Right of establishment - Right implying a right of entry and residence - Limits on the exercise of those rights

(Association Agreement between the Communities and the Czech Republic, Arts 45(3) and 59(1))

3. International agreements - Association Agreement between the Communities and the Czech Republic - Right of establishment - Right implying a right of entry and residence - Limits on the exercise of those rights - National system of prior control making the granting of leave to enter subject to substantive conditions - Whether permissible

(Association Agreement between the Communities and the Czech Republic, Arts 45(3) and 59(1))

4. International agreements - Association Agreement between the Communities and the Czech Republic - Right of establishment - Right implying a right of entry and residence - Limits on the exercise of those rights - Obligation to obtain in the country of residence, prior to departure for the host Member State, an entry permit - Whether permissible - Conditions

(Association Agreement between the Communities and the Czech Republic, Arts 45(3) and 59(1))

Summary

1. Article 45(3) of the Agreement establishing an association between the Communities and the Czech Republic, which prohibits Member States from discriminating, in matters relating to establishment, against Czech nationals on grounds of their nationality, must 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 Czech 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.

(see paras 33, 39 and operative part 1 )

2. The right of establishment, as defined 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 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 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 Czech nationals.

( see para 83 and operative part 2 )

3. On a joint reading, Articles 45(3) and 59(1) of the Association Agreement between the Communities and the Czech Republic, which respectively prohibit Member States from discriminating, in matters relating to establishment, against Czech nationals on grounds of their nationality and set out the powers of the authorities of the host Member State to apply their own laws and regulations regarding entry, residence and establishment, on condition that they do not make it impossible or excessively difficult for Czech nationals to exercise the rights granted to them by Article 45(3) of the Association Agreement, do not in principle preclude a system of prior national control which makes the issue by the competent immigration authorities of leave to enter subject to the condition that the applicant must show that he genuinely intends to take up an activity in a self-employed capacity 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.

( see paras 59, 83 and operative part 3 )

4. The condition set out at the end of the first sentence of Article 59(1) of the Association Agreement between the Communities and the Czech Republic must be construed as meaning that the obligation imposed on a Czech national by the immigration legislation of the host Member State, prior to his departure to the host Member State, to obtain entry clearance in his country of residence, grant of which is subject to verification of substantive requirements, has neither the purpose nor the effect of making it impossible or excessively difficult for Czech nationals to exercise the rights granted to them by Article 45(3) of that Agreement, provided that the competent authorities of the host Member State exercise their discretion in regard to applications for leave to enter for purposes of establishment, 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 lacking entry clearance on a basis other than that of the national immigration rules providing for a system of prior control 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.

( see para. 83 and operative part 4 )