Keywords
Summary

Keywords

1. International agreements - Agreements concluded by the Community - Direct effect - Conditions - Article 44(3) of the Association Agreement between the Communities and Poland

(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1))

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

(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1))

3. International agreements - Association Agreement between the Communities and Poland - 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 grant of leave to enter and reside subject to substantive requirements - Whether permissible

(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1)

4. International agreements - Association Agreement between the Communities and Poland - Right of establishment - Right implying a right of entry and residence - Limits on the exercise of those rights - Rejection by a Member State of a request for establishment on the sole ground that the applicant was unlawfully present in that Member State when the request was submitted - Whether permissible - Possibility for the applicant to submit a fresh request - Conditions - Application of the national rules on entry into the national territory - Limits - Protection of the applicant's fundamental rights

(Association Agreement between the Communities and Poland, Arts 44(3) and 58(1))

Summary

1. Article 44(3) of the Association Agreement between the Communities and Poland, which prohibits Member States from discriminating, in matters relating to establishment, against Polish 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 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.

( see paras 32, 38 and operative part 1 )

2. The right of establishment, as defined by Article 44(3) of the Association Agreement between the Communities and Poland, 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. It follows, however, 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.

( see para. 86 and operative part 2 )

3. On a joint reading, Articles 44(3) and 58(1) of the Association Agreement between the Communities and Poland, which respectively prohibit Member States from discriminating, in matters relating to establishment, against Polish 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 Polish nationals to exercise the rights granted to them under Article 44(3), do not in principle preclude a national 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.

( see paras 56, 86 and operative part 3 )

4. Article 58(1) of the Association Agreement between the Communities and Poland, which sets 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 Polish nationals to exercise the rights granted to them under Article 44(3) of that 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 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.

Such measures, moreover, must be adopted without prejudice to the obligation to respect that national's fundamental rights, such as the right to respect for his family life and the right to respect for his property, which follow, for the Member State concerned, from the international instruments to which that State may have acceded.

( see paras 77, 85-86, and operative part 4 )