C-63/99

GLOSZCZUK

OPINION OF ADVOCATE GENERAL ALBER delivered on 14 September 2000 1

I — Introduction II — Facts

2. The following facts emerge from the order for reference of the High Court of Justice of England and Wales:

1. The present reference for a preliminary The applicant Wiesław Gloszczuk, who is a ruling has its origin in a dispute concerning Polish national, was granted leave on the entry to and residence in the United 15 October 1989 to enter the United King­ Kingdom of a Polish husband and wife who dom for six months pursuant to a single- first entered Great Britain on visitors' visas entry visa issued by the British Embassy in (which have since expired). Following a Warsaw, subject to the condition that he refusal to extend those visas, the applicants did not enter employment paid or unpaid in the main proceedings unsuccessfully and did not engage in any business or applied to the Secretary of State for the profession. Home Department ('the respondent') for leave to remain pursuant to Article 44 of the Europe Agreement with Poland. 2They now seek, by way of proceedings for judicial review, to derive from that article a right of residence and establishment in the United Kingdom on the basis of the 3. On 14 April 1990, Mr Gloszczuk husband's status as a self-employed worker. applied to the Immigration and Nationality Directorate ('the IND') for an extension of his visitor's visa. His application was 1 — Original language: German. : refused on 16 July 1990 on the ground 2 — Decision 93/743/1 .uratom, ECSC, EC of the Council and the Commission of 13 December 1993 on the conclusion of the that a visitor's visa could not be granted for Europe Agreement between the European Communities and their Member States, of the one part, and the Republic of a period exceeding six months in total. No Poland, of the other part (OJ 199 5 L. 348, p. 1). appeal was lodged against that decision.

6. Mrs Gloszczuk applied to the IND on 25 February 1991 for an extension of her visitor's visa. By letter of 9 April 1991, the IND informed her that it was premature for such an application to be considered, but that a period of six months was the maximum permissible stay for a visitor. 9. On 31 January 1996 their solicitor The reason for the refusal was therefore wrote to the respondent to inform him that identical to that which had led to the Mr Gloszczuk had been supporting himself refusal of her husband's application. and his wife since 1991 by working in the building industry. He applied for recogni- tion of the applicants' right to establish themselves in the United Kingdom for the purpose of working in a self-employed capacity under the terms of Article 44 of 7. In response to that letter, Mrs Gloszczuk the Poland Agreement. Under that provi- wrote to the IND on 15 April 1991 stating sion, he submitted, the applicants had an that, in light of the information received, 'enforceable Community right' and were she would depart from the United Kingdom thus entitled to enter, and to be present in, at the end of her period of leave. This was the United Kingdom without requiring treated as a withdrawal of her application separate 'leave' under national law.

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14. By letter of 4 March 1997 the respon- 12. The applicants contested those deci- dent confirmed his decisions of 25 April sions by letter of 8 May 1996. They 1996. He did so on the basis that the reiterated their claim that the respondent Europe Agreement with Poland confers should recognise their right, under Arti- rights only on those who are lawfully cle 44 of the Poland Agreement, to remain present in a Member State. However, he in the United Kingdom without 'leave'. ' pointed out, the applicants were not law- The respondent did not reverse his deci- fully present in the United Kingdom sions. By letter of 19 July 1996, the appli- because they were Overstayers'. As further cants accordingly applied for leave to apply grounds, he stated that the applicants had for judicial review on the ground that the obtained their original leave to enter on the basis of false representations and that they had failed to observe the time-limits 3 — According to the information given by the referring court, it is common ground in the main proceedings that the attached to that leave by remaining in the entitlement (if any) of Mrs Gloszczuk and her son is United Kingdom after its expiry. Account dependent on Mr Gloszczuk's right of residence and/or establishment. was also taken of the fact that Mr Gloszc-

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zuk had violated the express condition on national immigration law by reason of which he had originally been granted leave a breach of an express condition, to enter the United Kingdom inasmuch as imposed upon his admission to the he had already been working prior to territory as a visitor, relating to the applying on 31 January 1996 to become permitted duration of his stay within established in order to work in a self- that Member State when that breach employed capacity. arose prior to his becoming a self- employed person and his application to take up and pursue activities under Article 44 of the Agreement?

19. The aims of this association are set out in Article 1(2). They concern the provision of an appropriate framework for political dialogue between the Parties, promotion of the expansion of trade and harmonious IV — Relevant provisions of the Europe economic relations, and provision of an Agreement with Poland appropriate framework for Poland's gra- dual integration into the Community.

17. The Europe Agreement with Poland 4 (hereafter also referred to as 'the Poland Agreement') was concluded having regard to 'the commitment of the Community and its Member States and of Poland to 20. Title IV of the Agreement governs strengthening the political and economic 'Movement of workers, establishment freedoms which constitute the very basis of [and] supply of services'. the association'. 5The 15th recital in the preamble to the Agreement further pro- vides:

21. The provisions governing the right of establishment are set out in Chapter II of '[The Contracting Parties] RECOGNI[SE] that Title. the fact that the final objective of Poland is to become a member of the Community and that this association, in the view of the Parties, will help to achieve this objective'.

Article 44, in particular, provides as fol- lows in this regard: 18. Article 1(1) of the Poland Agreement provides that 'an association is hereby

4 — Reference cited in footnote 2. 5 — Third recital in the preamble. '...

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(i) as regards nationals, the right to take up and pursue economic activ- 22. Chapter IV of Title IV of the Agree- ities as self-employed persons and ment sets out general provisions. Arti- to set up and manage undertak- cle 58(1) lays down the following rule: ings, 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 'For the purpose of Title IV of this Agree- or confer a right of access to the ment, nothing in the Agreement shall labour market of another Party. prevent the Parties from applying their The provisions of this chapter do laws and regulations regarding entry and not apply to those who are not stay, work, labour conditions and establish- exclusively self-employed; ment of natural persons, and supply of services, provided that, in so doing, they do not apply them in a manner [such] as to 6 — Pursuant to its Article 121, the Poland Agreement, which nullify or impair the benefits accruing to was signed on 16 December 1991, entered into force on 1 February 1994, and thus only at a date by which the applicants had already been residing in the United Kingdom any Party under the terms of a specific for more than three years. provision of this Agreement....'

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27. A Member State is thus entitled to continue to apply its rules regulating entry, stay and establishment to Polish nationals, 25. Member States are free to apply their on condition that it does not do so in a own laws and regulations regarding entry, manner which makes the exercise of the stay and establishment of natural persons right of free establishment impossible or to persons seeking to invoke their right of very difficult. This satisfies the principles of establishment and residence under Arti- non-discrimination and proportionality. cle 44 of the Poland Agreement only to Under Article 58 of the Poland Agreement, the extent to which such application does a Member State can thus demand proof not discriminate on grounds of nationality from a Polish national, who, following his and does not in any way infringe the right entry, is unlawfully staying within the

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territory of that Member State for reasons ing in the Member State for three years other than those of establishment, that he when he or she made the application and does in fact intend to take up or pursue an had even been doing so before the Agree- economic activity as a self-employed per- ment came into force. son and that this activity will be financially successful. In the event of unlawful resi- dence, refusal of an application based on Article 44 of the Agreement will therefore be correct in law.

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ence would necessarily be merely hypothe- of Europe and seek at some future time to tical in nature. join the European Union.

(a) The jurisdiction of the Court of Justice

35. There is to date an extensive body of case-law of the Court on the Association 32. Before we examine the individual pro- Agreement with Turkey. Since that Agree- visions of the Europe Agreement, it is ment is quite similar to the Agreement with necessary to consider whether the Court Poland which falls to be applied in the has jurisdiction. present case, reference can be made in what follows — at least in part — to the rele- vant case-law. This concerns both questions of jurisdiction and interpretation, with the result that recourse can also be had, at least in part, to that case-law within the context 33. The Court has consistently ruled that of the present reference regarding the association agreements form an integral Europe Agreement. part of the Community legal order and involve an extensive jurisdiction on the part of the Court of Justice. 7

37. There are, however, no differences Agreements, as described above, and their between the Association Agreement with similar objectives, those rules can be trans- Turkey and the Europe Agreement with posed. Poland in regard to the jurisdiction of the Court. Both are agreements within the meaning of Article 238 of the EC Treaty (now Article 310 EC). In its established case-law on agreements concluded pur- suant to Article 238 of the EC Treaty, the Court has ruled that it has comprehensive 40. Provisions are to be regarded as being jurisdiction in this regard to interpret such directly applicable when, regard being had agreements. 9 to their wording and to the purpose and nature of the agreement itself, they contain a clear and precise obligation which is not subject, in its implementation, to the adop- tion of any subsequent measure. 11

38. The Court's case-law on the Agreement with Turkey can thus be applied, at least with regard to jurisdiction, for the purpose of interpreting and construing provisions of the Europe Agreements, with the result that 41. Since the rights which the applicants the Court does have jurisdiction to reply to invoke can be derived, if at all, only from the questions submitted to it in this case. Article 44(3) of the Poland Agreement, Article 44(3) alone will, in what follows, be examined in regard to direct effect, but with account being taken of the effect of other provisions of the Agreement. (b) Direct applicability of the provisions of the Europe Agreement

45. The purpose and object of the Europe Agreement with Poland are also not at 43. In comparison with other provisions of variance with the direct applicability of this Agreement, Article 44(3) does not Article 44(3) of the Poland Agreement. The constitute a rule which is purely program- immediate aims of the Agreement, which matic in character and the direct applic- are also listed in Article 1(2) — see ability of which depends on decisions still point 19 above — can be inferred from to be taken by the Association Council. 12 the recitals in the preamble. That, for instance, is the case with regard to the areas of free movement of workers under Article 39(1) and the supply of services under Article 55(3) of the Agree- ment, since these refer expressly to mea- sures still to be taken.

46. The incidental fact that this Europe Agreement is intended essentially to pro- mote the economic development of Poland and that therefore an imbalance arises 44. No indications can be gleaned from the between the various obligations assumed wording of Article 44(3) of the Poland by the Community does not, according to Agreement or from articles applicable to the Court's settled case-law on similar Article 44(3) as to Association Council association agreements, prevent the Com- decisions still to be taken in this area. In munity from recognising some of its provi- contrast, the provisions of the Agreement sions as having direct effect. 15 with Turkey indicated, in regard to the free

13 — Sec Demirel, cited above m footnote 7, paragraph 16. 12 — Article 3(2) or the Poland Agreement provides as follows 14 — Sec the judgment in Sermce, cited above in footnote 7, with regard to the Association Council: 'At ministerial paragraph 27 et seq. level, political dialogue shall take place within the 15 —Judgments in Case C-469/93 Amministrazione delle Association Council. This shall have general responsibility Finanze dello Statu v Chiquita Italia [1995] ECR I-4533, for any matters the parties might wish to put to it. Further paragraph 34, and of 11 May 2000 in Case C-37/9S The provisions on the Association Council are to be tound in Queen v Secretary of State for the Home Department, ex Articles 102 to 107 of the Poland Agreement. parte Saras [2000] ECR I-2927, paragraph 53.

50. It thus follows that, regard being had to its wording as well as to its meaning and 48. Contrary to the applicants' submis- purpose, Article 44(3) of the Poland Agree- sions, however, the rights derived from ment is directly effective in regard to the Article 44(3) of the Poland Agreement do right of self-employed Polish nationals to not correspond to the right of establish- establish themselves for the purpose of ment under Article 52 of the EC Treaty working in a self-employed capacity. There (now Article 43 EC), which the settled is, however, still no reference in this to a case-law of the Court has confirmed to be right of residence. In order to be able to directly applicable. 16 That, however, is no determine to what extent Article 44(3) longer the issue in the present case. First, confers a separate right of residence which the wording of the two provisions is not the is independent of national law, it is neces- same, 17 and, second, the difference in sary to clarify the scope of that provision. treatment can be explained by the discrete objectives pursued by those respective instruments.

(c) The scope of Article 44(3) of the Poland Agreement

56. The same must hold good for the 53. According to the unambiguous word- interpretation of Article 44(3) of the ing of Article 44(3) of the Poland Agree- Poland Agreement. Contrary to the opinion ment, that provision relates solely to the expressed by the applicants, this case-law is right of establishment of Polish nationals in transposable to the Poland Agreement. The a Member State. At no point does the contention that the Poland Agreement goes Agreement mention an implied right of further on this point than the Association residence which may be derived from that Agreement with Turkey is untenable, as right of establishment. demonstrated by the following comparison of the two Agreements in respect of the right of establishment:

58. Article 41 of the additional protocol annexed to this Association Agreement 62. A comparison of the two Agreements provides that the Contracting Parties are makes it clear that neither has the objective to refrain from introducing between them- of seeking to abolish all obstacles to the selves any new restrictions on the freedom free movement of persons. Further, both of establishment and the freedom to pro- refer only to an expansion of trade and the vide services. provision of a framework for gradual integration into the Community, but do not discuss any framework corresponding to the EC Treaty.

59. However, most of the rights thus far derived from the Association Agreement with Turkey are based on the very specific 63. Article 58 of the Poland Agreement, for decisions of the Association Council which there is no comparable provision in adopted to date. the Association Agreement with Turkey, makes it in this connection all the more evident, through its express mention of the terms 'entry' and 'stay', that these areas of regulation are to remain within the compe- tence of the Member States, and thus — The Europe Agreement with Poland makes clear what is already obvious from the case-law on the Association Agreement with Turkey.

60. Article 1(2) of the Poland Agreement provides that its objectives include the provision of an appropriate framework 64. In particular, however, it is the Associa- for political dialogue and the gradual tion Council decisions adopted to date integration of Poland into the Community, under the Association Agreement with the expansion of trade and the promotion Turkey which make clear that, in the areas of harmonious economic relations. The of free movement and the right of establish- 15th recital in the preamble also stresses ment, the Association Agreement with that the Europe Agreement serves Poland's Turkey is considerably more advanced than ultimate objective of becoming a member the Poland Agreement. It is also obvious of the Community. from this fact that no more rights can be

65. In view of the comparative speed with 67. In the meantime, the Court has also which Poland is endeavouring to secure applied this case-law, which really concerns entry to the Community, the applicants only Turkish employed workers, to provi- have sought to attribute to the Poland sions relating to the right of establishment Agreement a broader scope than that of the of Turkish nationals in a Member State.21 Association Agreement with Turkey. This The Court has, however, expressly stressed line of argument, however, fails to take in this regard that the implied right of account of the fact that a vital distinction residence applies only in the particular must be drawn between the political and context of the Association Agreement with the juridical significance of an agreement. Turkey.22 From this it follows clearly and unequivocally that, as Community law stands at present, those principles cannot apply in the context of the Europe Agree- ment with Poland — that is to say, so long as no corresponding decisions have been adopted by the Association Council. 66. Notwithstanding the partial applicabil- ity of the case-law on the Association Agreement with Turkey, as established above, the Court's settled case-law con- cerning an implied right of residence for Turkish workers under the Association 68. The definition of the term 'establish- Agreement concluded with Turkey 20 is to ment' in Article 44(4) of the Poland Agree- that extent not applicable to the present ment 23 also makes it clear that a strict case, which involves the right of establish- distinction needs to be drawn under that ment of self-employed Polish nationals. Agreement between Polish employed work- According to that case-law, the rights ers and Polish self-employed workers, with accorded to Turkish workers in the area the result that rights which may apply to of employment necessarily imply that the employed persons are in no way also persons concerned are entitled to residence, unconditionally applicable to self- since the right of access to the labour force employed persons. and the right to work as an employed person would otherwise be deprived of all 21 — Siiľiis, cited above in footnote 1 S, paragraph 6.Ì. effect. This implied right of residence was, 21 — Siiras, cited ahove in footnote 1 S, paragraph 49. 23 — Article 44(4) or the Poland Agreement states: '... Self- employment and business undertakings by nationals shall not extend to seeking or taking cniplovment in the labour 20 — Senna· and Kits (cited m footnotes 7 and 19) and Case market or confer a right of access to tfie labour market or C-434/W Bozkurt v SìMtssecrel.im ¡¡iti Jnstitw | 1 9 9 5 | another Party, 'the provisions of this chapter do not apply ECK 1-1475, paragraph 28. to those who are not exclusively selt-employed;...'.

71. It can thus be held that the right of 74. Since, as has already been explained, establishment granted by Article 44(3) of the Poland Agreement does not confer any the Poland Agreement and a potential right implied right of residence even on persons of residence must, at the present stage of who have been unlawfully present in a implementation of the Europe Agreement Member State only after the entry into with Poland, be strictly distinguished one force of the Agreement, this must a fortiori from the other. be the case with regard to persons who were already unlawfully present in that 24 — Savas, cited above in footnote 15, paragraph 60, and Case C-285/95 Kol v Latid Berlin [1997] ECR 1-3069, para- graph 29. 25 — See footnote 6 above.

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conferring a right of residence or that it companies and nationals on its territory, in may not be restricted in this regard by so far as those regulations apply in a non- measures taken by the Member States. On discriminatory manner. In this way, not the contrary, this systematic position of only Article 58 but also Article 45(1) of the Article 58 demonstrates a fortiori that Poland Agreement show that the Member Member States continue to be entitled to States continue to retain a not inconsider- regulate the entry and residence of Polish able regulatory power in regard to the right nationals also in regard to the right of of establishment. establishment.

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sion. Question 3 essentially involves the 90. The articles in question grant the issue of whether the provisions of the authorities a partial discretion, as was in Poland Agreement on entry and residence fact initially exercised here in the pre- constitute an obstacle to the United King- litigation procedure. In applying individual dom's own provisions and concerns the measures, the Member State is of course degree to which the entry and residence also bound to comply with the principle of provisions are applicable within the context proportionality. However, in the case where of granting a right of establishment. an applicant has entered the country solely by deceiving the national authorities, that person cannot invoke the principle of proportionality. That would, in particular, run counter to the objectives of the Agree- ment. Nor is it disproportionate, in that 87. Since the provisions of an Association connection, to require the applicants to first or Europe Agreement form an integral part leave and then re-apply in Poland for of the Community legal order, 26 those residence in conjunction with an applica- provisions take precedence over national tion for establishment. law, though it should also be noted that they do so only to the extent to which they actually overlap.

91. It would not be compatible with the principle of proportionality if the assump- 88. The provisions germane to the present tion of an activity in a self-employed case are not, however, at variance with capacity were to be made subject to an national law. The relevant provisions in the examination of national economic or United Kingdom's rules on entry and resi- labour-market requirements or if an appli- dence give effect only to the legitimate and cation for establishment were to be turned permissible interests of that Member State, down on the ground that the legal order of namely to regulate uncontrolled access of the Member State in question provides for nationals of non-member countries and to a general restriction on immigration. prevent abuse of advantages granted to persons entering in the proper manner.

94. I propose that the questions submitted should be answered as follows:

(1) Article 44 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, has direct effect for the establishment of Polish nationals in regard to guaranteeing equal treatment with nationals of the Member States of the European Communities, but does not confer any legal entitlement to entry or residence.

(2) A Member State can also apply its legal and administrative rules on entry and residence to persons who, within the context of establishment, can or could invoke equal treatment under Article 44 of the Poland Agreement, on condition that it does not do so in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement.

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