C-100/89

OPINION OF MR MISCHO—JOINED CASES C-100/89 AND C-101/89

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 17 May 1990 *

Mr President, 86/283, but the two provisions are not Members of the Court, identical in scope. Moreover, the main question raised in the present case was not dealt with in the abovementioned case.

1. By two orders for reference made by the Tribunal administratif (Administrative Court ), Papeete* in French Polynesia, the Court of Justice is for the first time 5. As regards the facts underlying the main requested to give a preliminary ruling by a proceedings, it is sufficient to recall that Mr court of an overseas territory associated Peter Kaefer, a German national (Case with the Community. C-100/89), entered French Polynesia as a tourist and would have liked to obtain a residence permit. The competent adminis­ trative authorities refused to grant him such 2. It is also called upon to interpret for the a permit, relying on a provision pursuant to first time Articles 132(5) and 135 of the which a visa issued for the purpose of Treaty and Article 176 of Council Decision tourism may not be converted into a 86 / 283 / EEC of 30 June 1986 on the asso­ residence permit locally. Mr Kaefer ciation of the overseas countries and terri­ therefore brought an action before the tories with the European Economic Papeete administrative court claiming essen­ Community, adopted in pursuance of tially that Article 176 of Council Decision Article 136 of the Treaty (Official Journal 86/283 gave him the right to establish 1986 L 175, p. 1). himself in that territory.

Procacci applied to the administrative court, 10. In the United Kingdom's view, it is also claiming also to have Italian nationality and clear from the terms of both Article 227(3) relying on Community law. and Articles 131 to 136 bis of the EEC Treaty that Part Four of the EEC Treaty constitutes a lex specialis which is applicable to the overseas countries and territories, to the exclusion of the other provisions of the 7. Before examining the substance of the Treaty, except where such provisions are question submitted by the Papeete adminis­ incorporated by reference (such as, for trative court, which is identical in both example, the chapter on establishment cases, I must consider whether the Court incorporated by reference in a qualified way has jurisdiction to reply to it. by the terms of Article 132(5)). It is therefore clear, in the United Kingdom's view, that Article 177 does not apply to the courts of overseas countries and territories. The jurisdiction of the Court

'the Council shall, acting unanimously, lay I — See the judgment in Case 148/77 Hamn (1978] ECR 1787. down provisions for a further period, on the

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2 measures referred to in the second Polynesia, Article 1 of which provides that paragraph of Article 136 were to be implemented by way of a new Treaty or protocol to be negotiated by the Member States and ratified by the national ' . . . the territory of French Polynesia parliaments. constitutes. . . an overseas territory having internal autonomy within the framework of the Republic'. 13. Moreover, it should be noted that, as the Court held in its judgments in Case 181/73 Haegeman v Belgium [1974] ECR 449 and Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, and By virtue of Article 3 of that law, the more particularly at p. 3750, French State retains competence in the administration of justice and judicial organ-

14. Now, this must apply a fortiori in the Member State', but that this factor case of a decision adopted unilaterally by the Council in pursuance of a provision of 2 — Law No 84-820 of 6 September 1984 regulating the status of the territory of French Polynesia (Journal officiel de la the Treaty, in this case Article 136. République française, 7.9.1984, p. 2831. 3 — Articles 98 to 102 of the Law of b September 1984, cited above. 4 — See R. Chapus: Droit du contentieux administratif, Paris,

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'is not sufficient in itself to establish the 20. In both cases the Administrative Court jurisdiction of the Court of Justice. In fact, therefore referred to the Court of Justice the concept of court of a Member State, the same question, namely: within the meaning of the second and third paragraphs of Article 177 of the Treaty, must be interpreted in the light of its structure and purpose. To this end it can 'Must the scope of Article 176 of the only refer to a court deciding a case arising Decision of 30 June 1976 of the Council of in a part of the territory of a Member State 5 the European Communities be considered, covered by the provisions of Community having regard in particular to the stipu­ law. ... Although the totality of the lations in Articles 132(5) and 135 of the substantive EEC Treaty provisions are not Treaty of 25 March 1957 establishing the applicable to overseas countries and terri­ European Economic Community, to extend tories, that does not preclude the latter from to decisions of any kind which the State being governed by the Treaty as regards the authorities having exclusive competence specific arrangements for their association may take on matters concerning the entry with the Community'. into and residence in the territory of French Polynesia of aliens who are nationals of the Member States of the European Economic Community and, if so, are the nature, 17. The court making the reference has in arrangement and terms of the provisions or fact referred to the Court of Justice a stipulations in question such as to be question concerning the interpretation of capable of producing direct effect in some of the provisions governing the special relations between addressees of the act and arrangements for association, namely Article third parties?' 176 of Council Decision 86/283 of 30 June 1986 and, secondarily, Articles 132(5) and 135 of the EEC Treaty.

'As regards the arrangements that may be applied in matters of establishment and 24. Article 135 of the Treaty provides that: provision of services, the relevant authorities of the countries and territories shall treat nationals and companies or firms of Member States on a non-discriminatory 'Subject to the provisions relating to public basis. However, if, for a given activity, a health, public security or public policy, Member State is unable to provide similar freedom of movement within Member treatment for nationals or companies or States for workers from the countries and firms of the Kingdom of Denmark, the territories, and within the countries and French Republic, the Kingdom of the territories for workers from Member States, Netherlands or the United Kingdom of shall be governed by agreements to be Great Britain and Northern Ireland, estab­ concluded subsequently with the unanimous lished in a country or territory, or for approval of Member States.' companies, or firms subject to the laws of the country or territory concerned and established therein, the relevant authorities of that country or territory shall not be 25. Since it is common ground that no bound to accord such treatment.' agreement of this kind has been entered into, nationals of the Member States may not rely on Community law to claim the right to enter into and stay in an overseas country or territory in order to take up and 28. It is clear from those provisions carry on salaried employment there. considered together that in overseas countries and territories a right of entry and residence may be claimed by nationals of other Member States only for the purpose 26. Article 132(5) of the Treaty provides of engaging in a self-employed activity, if that: the conditions provided for in the article which I have just quoted are satisfied.

'Neither Articles 132(5) and 135 of the 30. The competent authorities are therefore Treaty nor Article 176 of Council Decision entitled to require nationals of other 86/283 of 30 June 1986 on the association Member States to possess all the of the overseas countries and territories with professional qualifications, in particular the European Economic Community may be diplomas, which are required of nationals considered to extend to decisions of any who wish to carry on the same self- kind which the relevant authorities may take employed activity or engage in the same on matters concerning entry into and supply of services. Moreover, if in a country residence in an overseas territory of or territory access by citizens from mainland nationals of other Member States. In France to certain occupations or to the overseas countries and territories, a right of provision of services is subject to special entry and of residence can be claimed by restrictions, or even prohibited, those same nationals of other Member States only for restrictions or prohibitions may be applied the purpose of carrying on a self-employed to nationals of other Member States. One of activity, subject to the conditions provided those restrictions might be the requirement for in the abovementioned Article 176.' to be in possession of a settler's permit before setting foot on the territory in question. B — Is Article 176 of such a nature as to confer rights on individuals which they may invoke before the courts?

31. The right of nationals of other Member States to establish themselves in the country or territory, or to provide services there, is, 34. Although the second limb of the moreover, subject to the condition of reci­ question is asked only in the event that the procity which is referred to at the end of Court should reply in the affirmative to the Article 176 and to which I shall return later first question, it seems to me appropriate to on. reply to it, given that one of the applicants has claimed that he wishes to carry on a self-employed activity in French Polynesia.

Decision 86/283 do not have direct effect 39. Moreover, in the judgment in Raza- before the courts of French Polynesia. natsimba mentioned above, which related to the Lomé Convention, that is to say an agreement with non-member countries not intended to create a customs union, the 36. I agree that the judgment in Van Gend Court held that Article 62 of that and Loos does follow the reasoning Convention did not give a national of an indicated by the United Kingdom and ACP State the right to establish himself in recalled in greater detail in the Report for the territory of a Member State of the EEC, the Hearing. without any condition as to nationality, in so far as the right to practice professions reserved by the legislation of that State to its own nationals was concerned. 37. Nevertheless, since the time of that judgment the Court has held, with regard to the association agreement signed in 1963 by 40. The Court thus examined the actual the European Economic Community and scope of the article relied on by the Turkey, that: applicant in the main proceedings, and it did not itself rule out the possibility that the Lomé Convention could confer on indi- viduals (even nationals of an ACP country) 'A provision in an agreement concluded by rights which have to be upheld by the the Community with non-member countries courts. must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a 41. It may therefore be concluded that the clear and precise obligation which is not judgment in Van Gend and Loos must be subject, in its implementation or effects, to placed in its proper context. It was the first the adoption of any subsequent measure.' 6 affirmation of the principle of direct effect and concerned a Treaty provision. Since then the Court has had the opportunity of examining the question of direct effect in 38. Yet, even if that agreement seeks to relation to agreements concluded by the establish in due course a customs union Community with non-member countries. It between the EEC and Turkey, it cannot be has gone on to acknowledge that rights said to have the purpose of establishing, in enuring to the benefit of individuals may the words of the judgment of Van Gend and also arise from certain obligations imposed Loos, on Member States by an agreement which does not establish a new legal order. This applies a fortiori when the instrument concerned is not an agreement concluded 'a new legal order of international law for with non-member countries but, as in the the benefit of which the States have limited present case, a Council decision. their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their 42. I may therefore examine the terms of nationals'. Article 176 to see whether that article satisfies the criteria laid down in particular 6 — Judgment in Case 12/86 Demirel mentioned above at p. 3752, paragraph 14. in the judgment in Demirel.

47. In the case now before us a Netherlands 44. For my part, however, I am of the view national for example must, in my view, be that, in using the term 'unconditional allowed to argue before the relevant auth­ provision' the Court was referring to orities or courts of French Polynesia that a provisions which leave no margin of person originating in that territory is appreciation to the authorities charged with entitled to carry on in the Netherlands the their application, enabling the latter to same self-employed occupation as that impose conditions on, or to restrict, their which the national in question would like to scope. carry on in Polynesia, provided that that person satisfies all the requirements demanded of Netherlands citizens (save, of course, for nationality). 45. The first sentence of Article 176 of the Council Decision confers on its addressees, namely the competent authorities in the overseas countries and territories, no margin 48. The burden of proving that matter rests of appreciation as to the application of the on the applicant. He may discharge it for principle of non-discrimination once the example by producing a document from a conditions laid down by that article are competent authority in the Netherlands or satisfied. As regards the condition of reci­ by placing reliance on a Community procity, it is not open to those same auth­ directive on the mutual recognition of orities to avail themselves of it. It is diplomas regarding the occupation in satisfied, or not satisfied, as the case may question, where that directive — as always be, by the other Member Sutes. seems to be the case — draws no distinction between nationals of other Member States on the basis of whether they originate in the metropolitan territory of a Member Sute or 46. In other words, I consider that the in an overseas country or territory which is derogation from the rule of non-discrimi­ a dependency of that Member Sute. nation, which may arise from the non-fulfilment of the condition as to reci­ procity, has only a 'contingent' nature which is not capable of calling in question 49. The Commission has in fact brought the direct effect of the rule itself. By way of infringement proceedings against France analogy I refer to the judgment of the (Case C-263/88 [1990] ECR 1-4611) Court in Joined Cases 231/87 and 129/88 because that Member Sute had not adopted Comune di Carpaneto Piacentino [1989] the measures necessary in order to enable

54. Provided that such a directive has been 50. In my Opinion delivered today in Case adopted, a French citizen from Polynesia is C-263/88, I have proposed that the therefore entitled to establish himself in all Commission's application should be the other Member States by producing a allowed. French diploma. That applies a fortiori if he is the holder of the diploma provided for by the legislation of the country in which he wishes to establish himself. (Since Article 132(5) refers to the Chapter on freedom of establishment, it may even be inquired 51. I would recall once again that Article whether, in the last-mentioned situation, he 132(5) of the EEC Treaty provides that: has not already acquired the right of estab­ lishment since the end of the transitional period, on the basis of the judgment in Case 2/74 Reyners [1974] ECR 631. If that were the case, the condition of reciprocity, which 'In relations between Member States and did not feature in Article 8 of the the countries and territories the right of Implementing Convention on the Asso­ establishment of nationals and companies or ciation of Overseas Countries and Terri­ firms shall be regulated in accordance with tories annexed to the EEC Treaty, was provisions and procedures laid down in the inserted into Article 176 by inadvertence, Chapter relating to the right of estab­ probably merely in order to establish a lishment and on a non-discriminatory basis, certain parallelism with the Yaounde and subject to any special provisions laid down Lomé Conventions, whereas in those pursuant to Article 136.' agreements it has a quite different scope, as

(2) Article 176 of Council Decision 86 / 283 / EEC of 30 June 1986 on the asso­ ciation of overseas countries and territories to the EEC must be interpreted as meaning that the non-discrimination rule which it lays down may be relied upon before the competent authorities of a country or territory by a national

7 — Since the main dispute concerns individuals and not companies, I have not dealt with this aspectof Article 176.

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of a Member State other than that with which that country or territory maintains special relations, who wishes to carry on there a specific activity as a self-employed person, or to go there to provide services of a specific type, and that a request to that effect must be granted, if the person in question satisfies all the conditions required to be fulfilled, as regards the self-employed activity or the provision of services by nationals of the Member State with which the country or territory maintains special relations who are not estab­ lished in that country or territory, and if it is undisputed that in the Member State of which that person is a national the same treatment is provided to persons thitherto established in the country or territory in question and having the nationality of the Member State with which that country or territory maintains special relations.'

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