C-257/99

BARKOCI AND MALIK

OPINION OF ADVOCATE GENERAL MISCHO delivered on 26 September 2000 '

Introduction remove them to the Czech Republic would be implemented.

1. The High Court of Justice of England 3. That precarious sojourn in the United and Wales, Queen's Bench Division (Divi- Kingdom came after a long journey which sional Court), has been called upon to rule the national court sets out and the salient on the appeals brought by two Czech points of which it is useful to mention here, nationals, Mr Barkoci and Mr Malik, as described by the national court: against the refusal by the competent autho- rities of the United Kingdom of their application to enter the United Kingdom and remain there with a view to pursuing an activity as self-employed persons under the Europe Agreement of 4 October 1993 — neither of the applicants had sought to establishing an association between the obtain in the Czech Republic prior European Communities and their Member entry clearance before travelling to States, of the one part, and the Czech the United Kingdom with a view to Republic, of the other part 2 (hereinafter establishing themselves there, under the 'the Agreement'). Agreement, as self-employed workers;

— the two applicants arrived in the Uni- 2. At the time when the national court ted Kingdom after travelling through referred its questions, those two Czech other Member States in which they nationals, who had landed in Dover in could have sought asylum; 1997, seeking asylum, were in the territory of the United Kingdom but under the threat that, should the actions which they had brought before the courts fail, a decision to — the two applicants, however, made 1 — Original language: French. their first application for asylum within 2 — OJ 1994 L .160, p. 2. the European Union when they arrived

— Mr Malik's application was rejected, although he had been granted tempor- 5. The first chapter of that Title concerns ary admission; 'Movement of workers'. I - 6562

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6. Even though Mr Barkoci and Mr Malik 2. The Czech Republic shall, subject to the are not claiming any rights under that title, conditions and modalities applicable in that I believe it is appropriate to quote Arti- country, accord the treatment referred to in cle 38 which is worded as follows: paragraph 1 to workers who are nationals of a Member State and are legally employed in its territory as well as to their . spouse and children who are legally resi- dent in the said territory.'

'1. Subject to the conditions and modalities applicable in each Member State:

7. Chapter II, 'Establishment', contains, among others, the following provisions:

— treatment accorded to workers of Czech Republic nationality, legally employed 3in the territory of a Mem- ber State shall be free from any dis- crimination based on nationality, as regards working conditions, remunera- 'Article 45 tion or dismissal, as compared to its own nationals,

9. Finally, Title IV of the Agreement con- cludes with Chapter IV entitled 'General provisions', which contains the following article:

The provisions of this chapter do not apply to those who are not exclusively self-employed. 'Article 59

1. 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, I - 6564

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work, labour conditions and establishment authorities of the United Kingdom to Mr of natural persons, and supply of services, Barkoci and Mr Malik are the Immigration provided that, in so doing, they do not Rules, HC 395, as amended in 1996. 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....

12. Paragraphs 24 to 26 of HC 395 estab- lish a general regime of prior entry clear- ance for certain categories of applicant and provide for mandatory refusal of author- isation to enter the territory of the United Kingdom if such entry clearance has not been obtained.

211. For the purpose of paragraphs 212 to (iii) until his business provides him 223, a business means an enterprise with an income he will have suffi- as: cient additional funds to maintain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public funds; and •— a sole trader; or

— a partnership; or (iv) his share of the profits of the business will be sufficient to main- tain and accommodate himself and any dependants without recourse to employment (other than his work for the business) or to public — a company registered in the United funds; and Kingdom.

212. The requirements to be met by a (v) he does not intend to supplement person seeking leave to enter the his business activities by taking or United Kingdom to establish himself seeking employment in the United in business are that: Kingdom other than his work for the business; and

(i) he satisfies the requirements of either paragraph 213 or paragraph (vi) he holds a valid United Kingdom 214; and entry clearance for entry in this capacity.

(ii) the money he is putting into the business is under his control and sufficient to establish himself in 213. Where a person intends to establish business in the United Kingdom; himself in a company in the United and Kingdom which he effectively con- I - 6566

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(vi) where he is taking over an existing company, a written statement of the terms on which he is to take (v) where he is taking over or joining over the business and the audited an existing business a written state- accounts for the business for the ment of the terms on which he is to previous years. take over or join the business and

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audited accounts for the business The questions referred by the national for previous years. court

216. Leave to enter the United Kingdom as a person seeking to establish himself 18. Neither the fact that the persons con- in business is to be refused if a valid cerned intend to avail themselves of the United Kingdom entry clearance for Agreement nor the fact that they are in the entry in this capacity is not produced United Kingdom under the temporary to the Immigration Officer on arri- admission system can lift the requirement val.' for leave to enter.

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19. It was rightly considered that the systems of Member States, notwith- applicants, having failed to show that their standing the provisions of Article 59 of application clearly and manifestly satisfied the Agreement? the substantive requirements for the grant- ing of leave to enter with a view to establishing themselves as self-employed workers, could not be exonerated, by way of derogation from the immigration rules, from the entry clearance requirement.

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The first question carry on business as a self-employed worker, without having obtained to that end the entry clearance and the leave to remain provided for by HC 395.

21. The first of those questions calls for immediate clarification on one point. In my view, the national court is not asking whether a Czech national who has leave 24. That is indeed why it refers to Arti- to remain in the United Kingdom may rely cle 59 of the Agreement, which makes the on Article 45(3) before a United Kingdom proviso that only national rules concerning court when objecting, as a self-employed entry and stay are to be applied. worker, to being treated less favourably than United Kingdom nationals.

25. In setting out their case with regard to the answers called for by the first three questions, Mr Barkoci and Mr Malik first 22. If that had been the question, the of all state that Article 45(3) is not sub- answer would have been simple because, stantially different to the wording of Arti- as a non-discrimination clause, Arti- cle 52 of the EC Treaty (now, after amend- cle 45(3) is a clear and precise provision ment, Article 43 EC), so that the freedom which is not subject to the adoption of of establishment accorded to Czech nation- provisions designed to implement it. Its aim als cannot be conceived in restrictive terms and function is therefore, according to the and depart substantially from the same case-law of the Court, 5 to give rise to rights freedom accorded to nationals of the for individuals which may be relied on Member States. before the competent courts.

27. This leads them to state that, like would render the entire chapter on estab- Article 52 of the Treaty, Article 45(3) of lishment devoid of meaning. It would also the Agreement must be understood as run counter to what has been agreed within having been intended to confer directly on the World Trade Organisation ('WTO'), Czech nationals a right to enter and stay for since what is concerned is a clause in an the purpose of carrying on business as self- agreement which, like Article 59, prohibits employed persons. the benefits accruing to any Party under the terms of a specific provision thereof from being nullified or impaired, the fact that reference is made to the rights of the parties to the Agreement, and not to those of its nationals, being, in the applicants' submis- 28. Still basing themselves on the assertion sion, entirely irrelevant. that Article 45(3) should be interpreted along the same lines as Article 52, they contend that recognition of the right attaching to freedom of establishment can- not be made subject to a requirement of minimum income from the business pur- sued or to the absence of recourse to public 31. Mr Barkoci and Mr Malik submit, funds in order to supplement such income. finally, with regard to the third question, but in the alternative, since, in view of the reply which they contend is called for by the first two questions, there is no need to reply to it, that, in any event, national courts are required to rule on the legality of 29. The argument based on the actual national rules on immigration in the light wording of Article 45(3) is supplemented, of the obligations which Article 45(3) according to Mr Barkoci and Mr Malik, by imposes on the Member States and of the arguments that can be derived from the correlative rights conferred on Czech nature and purpose of the Agreement, nationals by that article. which is intended to create conditions propitious to the rapid accession of the Czech Republic to the Community.

39. It is true, on the one hand, that Article 45(3) of the Agreement, taken in 35. So far as concerns the condition laid isolation, may, at first sight, give the down in the second part of the first impression that it confers on Czech nation- sentence of Article 59, the United Kingdom als a right of establishment and, on the Government is not sure, in view of its other, that where it has had to interpret wording, that it could be relied upon by an Article 52 of the Treaty, the Court of individual. It submits that in any event it Justice has ruled that the right of establish- can impose on Member States only obliga- ment implies a right to enter and stay. 6 tions relating to the manner in which they That observation cannot however consti- apply their immigration legislation; it can- tute anything more than a starting point for not call in question the existence of such the reasoning. legislation.

40. A provision must not, in fact, be taken in isolation; it must necessarily be placed in its context, that is to say, the object and 36. The United Kingdom Government purpose pursued by the text in which it is points out that it had specifically amended inserted and the other provisions of that its legislation in order to take account of the provisions of the Agreement with the Czech Republic and other similar agree- 6 — See Case 48/75 Royer [1976] ECR 497, paragraph 50, and ments. Case C-363/89 Roux [1991] ECR 1-273, paragraph 9.

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text with which it is logically linked 7 must went on to find that the articles on freedom all be examined together. of establishment and the freedom to pro- vide services were based on the same principles 10 in so far as they concern entry into and residence of nationals of the other Member States in their territory, and that they were to be construed as prohibiting 41. Moreover, the fact that Article 52 of Member States from setting up restrictions the Treaty has received a certain interpre- or obstacles in that regard. 11 tation does not mean anything in itself as regards the meaning to be read into Arti- cle 45(3) of the Agreement, a provision which is moreover worded differently and appears in a different instrument. 8

43. In that case, the Court started from the 45. In the Royer case, the Court, moreover, observation 9 that Article 48 of the EC pointed out that its interpretation of the Treaty (now, after amendment, Article 39 provisions of the Treaty on freedom of EC) provides that freedom of movement for movement for persons was 'recognised by workers is to be secured within the Com- all the measures of secondary law adopted munity, and that entails the right, according for the purpose of implementing the above- to paragraph (3) of that article, to enter the mentioned provisions of the Treaty', and it territory of Member States, to move freely mentions, to that end, among others, there, to stay there for the purpose of Council Directive No 73/148/EEC of employment and to remain there after the 21 May 1973 concerning the removal of end of this employment. The Court then restrictions on the movement and residence of nationals of the Member States within the Community for establishment and pro- 7 —See Case 283/81 CILFIT v Ministero delhi Samta [1982] vision of services. 12 ECR 3415, paragraph 20. 8 — See Case 270/80 Pulydur ami Others v Harlequin ¡imi Others [ 1982| ECU 329, paragraphs 14 to 20; Case 104/81 Hiwptzollaiiil Mainz Kitpfcrberg & Cu: [1982 Į ECR 3641, paragraphs 28 in 30; and Case C-312/91 Mel.ils,! 10 — Paragraph 12 of the Iiidgment. [1-3751)1 ECU I-3751, paragraphs 10 to 12. 11 — Paragraph 23 of the judgment. 9 — Paragraph 19 of the iiidgment. 12 — OJ 1973 L P 2 , p. 14.

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46. That directive contains the following 2. No entry visa or equivalent requirement essential provisions: may be demanded save in respect of members of the family who do not have the nationality of a Member State. Member States shall afford to such persons every facility for obtaining any necessary visas.' 'Article 1

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49. It is therefore not possible to conclude of accession of the Kingdom of Spain and that Czech nationals have, in the Member the Portuguese Republic and the adjust- States, a right of entry and residence ments to the Treaties and not of an identical with that of Community nationals agreement concluded by the European once they manifest the intention of carrying Communities with a non-member State. on business there as self-employed persons By that Act, the Portuguese Republic and are in possession of a valid passport. became a full member of the Community, subject to a temporary derogation from the principle of freedom of movement for workers.

50. That interpretation is wholly confirmed by the coexistence, within the Agreement, of Article 45(3) and Article 59(1). The coexistence of those two provisions makes 52. However, as rightly pointed out by the it impossible to take the view that by means Governments which submitted observa- of Article 45(3) the contracting parties had tions and also by the Commission, the intended to lay down for the benefit of object and purpose pursued by the Agree- Czech nationals a rule prohibiting discri- ment, as expressed in the preamble thereto mination and at the same time to regulate and in Article 1, in no way justify the their right of entry and residence. It is clear conclusion that the contracting parties that they intended to separate those two intended to create a common market in matters. which goods, persons, services and capital move freely, such as that intended by the authors of the Treaty.

cular to ensure that under any provision of 57. That means that it is not enough that a this Agreement a Party grants to the other Czech national should undertake self- Party a treatment no less favourable than employment in a Member State in order that accorded under the provisions of a to be able to claim the benefit of Arti- future General Agreement on Trade and cle 45(3) of the Agreement. He must be Services (GATS)'. able to prove that he is not excluded by the effect of Article 45(4), which means that he must accept a certain form of monitoring by the national authorities of the Member State in which he intends to establish himself. The very existence of such mon- itoring is not reconcilable with the recogni- tion of a right of entry and residence directly conferred on him by the Agree- ment. 55. If the parties contemplated that the agreements being negotiated in the context of the General Agreement on Tariffs and Trade ('GATT') might possibly go beyond what is provided in the Agreement so far as 58. Mr Barkoci and Mr Malik also rely on concerns freedom of establishment, it was the judgment in Kaefer and Procacci, 15 in because they were perfectly aware that the which, called upon to interpret Article 176 Agreement gave that freedom only a lim- of Council Decision 86/283/EEC of ited scope, with no relation to the scope it 30 June 1986 on the association of the has in the context of the Treaty. overseas countries and territories with the European Economic Community, 16 the Court stated that the right of entry and residence is a prerequisite for the right of establishment granted under certain condi- tions to a national of a Member State who intends to carry on an activity as a self- employed person or provide services in overseas countries or territories of another Member State. 56. The impossibility of transposing the case-law of the Court of Justice with regard to Article 52 of the Treaty, at least so far as concerns matters of the right of entry and residence, to the context of the Agreement is equally evident when one examines the 59. It need merely be observed in that limited scope which Article 45(4) of the connection that, apart from the fact that Agreement gives to the concept of 'estab- what was concerned was a right conferred lishment'. It states that the chapter on on Community nationals in order to open establishment does not apply to persons the way to an activity in a part of the who are not exclusively self-employed and territory under the sovereignty of another that self-employment and business under- takings by nationals does not extend to 15 — Joined Cases C-100/89 and C-101/89 Kaefer and Procacci seeking or taking employment in the labour [1990] ECR I-4647. market of another party. 16 — OJ 1986 L 175, p. 1.

Member State, and not on nationals of non- right of entry and residence. In that respect, member States, the abovementioned Coun- the Court, at paragraph 65 of the Savas cil decision, like the Treaty itself, does not judgment, expressed itself as follows: contain any provision comparable with Article 59(1) of the Agreement, so that there is nothing of relevance to be gleaned from that judgment for the purpose of replying to the questions referred to the '... a Turkish national's first admission to Court by the national court. the territory of a Member State is governed exclusively by that State's own domestic law, and the person concerned may claim certain rights under Community law in relation to holding employment or exercis- 60. The applicants in the main proceedings ing self-employed activity, and, correla- attempt to find support for their case in the tively, in relation to residence, only in so fact that, in the context of the EEC-Turkey far as his position in the Member State Association Agreement, the Court has concerned is regular.' developed a line of case-law to the effect that conferment, by a decision of the Association Council, of a right on Turkish workers to take up an employment of their choice in a Member State necessarily entails 62. So far as concerns the argument which acknowledgement of a right of residence, the applicants in the main proceedings provided that certain conditions, which it claim to derive from WTO practice, it need specifies, are met. 17 merely be observed that, since it has been established that Article 45(3) of the Agree- ment does not regulate the matter of right of entry and residence, the argument fails because a refusal in that respect with regard 61. However, that line of authority does to a Czech national cannot constitute an not help their case at all. It concerns, as the infringement of that provision, and this Court has again recently pointed out in renders otiose any discussion on whether or Savas, 18 only Turkish workers who are not a conferred advantage has been with- already members of the legal labour force drawn. in a Member State, and does not in any way concern Turkish nationals who intend to accede for the first time to the labour market in a Member State and establish themselves there. In the case of such 63. Finally, with regard to the rules on the nationals, the Member State retains full interpretation of Treaties worked out by freedom so far as concerns the granting of a customary international law and set out in synthesis in the Vienna Convention on the Law of Treaties, it is sufficient to note that, 17 — See the judgments in Sevince, cited above, paragraph 29; Case C-237/91 Kus [1992] ECR I-6781, paragraphs 29 since those rules require that the common and 30; Case C-434/93 Bozkurt [1995| ECR I-1475, intention of the parties be taken into paragraph 28; Case C-171/95 Tetik [1997] ECR I-329, paragraph 24; and Case C-329/97 Ergat [2000] ECR account, it is difficult to see how, since I-1487, paragraph 40. 18 — Case C-37/98 Savas [2000] ECR I-2927, paragraphs 60 the parties to the Agreement have acknowl- and 65. edged that the visa requirement could not

65. Having arrived at those conclusions, I do not, in principle, need to answer the second question, since it is only referred to the Court in the event that the first question 68. However I would at once point out that is answered in the affirmative, and I could merely because a provision of Community move directly to the third question. law does not confer directly a right on individuals that a national court seised of an action directed against a national mea- sure adopted in implementation of that measure is dispensed from taking that measure into account. 66. It seems to me, however, that the second and third questions concern the same problem — namely what are the inferences to be drawn from the proviso in the first sentence in fine of Article 59(1) of the Agreement, according to which the 69. On the contrary, it is for that court to application by the parties of their laws and interpret and apply the national measure, in

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72. It was, moreover, in order not to attract criticism in that respect that the United Kingdom Government, as it states in its observations, inserted into HC 395 provi- sions covering specifically nationals of third 70. There could be such incompatibility, as countries which had concluded association the two Governments acknowledge, if the agreements of the type concluded with the admission or residence envisaged for the Czech Republic, nationals on whom, by the purpose of establishment were refused on United Kingdom's own admission, certain the ground that the person concerned is a requirements which are enforceable in Czech national or is resident in the Czech respect of nationals of other third countries Republic, or because under the national may not be imposed. system a general restriction on immigration is imposed or where the right to engage in an economic activity in a self-employed capacity is conditional on a finding that there is a need justified in the light of economic considerations or labour-market 73. The question whether a national court which finds that the application of national

19 —See the judgment in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8. 20 — OJ 1996 C 274, p. 7.

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immigration rules to a Czech national of natural persons, unless those laws wishing to establish himself leads to a and regulations are worded or applied result incompatible with the Agreement in a manner which would make it must declare those rules unlawful, or generally impossible or very difficult merely disapply them for the benefit of for Czech nationals to establish them- the applicant, is not a matter for the Court selves in the Member State concerned, to decide. to the point of rendering Article 45(3) of that Agreement ineffective.

BARKOCI AND MALIK

5. If the answer to Question 4 is "yes": (b) the length of time which has elapsed between the applicant's initial arrival at the border of the Member State and the date of his subsequent application for estab- lishment as a self-employed person (a) is a Member State entitled to make pursuant to the Agreement; the grant of such prior entry clear- ance conditional upon satisfying substantive requirements relating to establishment such as those contained in paragraph 212 of HC 395; and (c) the extent of any restrictions placed on the applicant by the national authorities during that time, pursuant to powers con- tained in national immigration law, as to his liberty or employ- (b) may a Member State refuse admis- ment/occupation; sion into its territory to a person seeking to establish himself as a self-employed person under the Agreement on the sole ground that such prior entry clearance has not been obtained? (d) the fact that the applicant has had access to the social welfare system of the Member State and has depended upon it financially whilst establishing himself as a self- 6. Where such a person has not been employed person? granted permission to enter the terri- tory of the Member State on any other basis, is the answer to Question 5 affected (and if so how) by any of the following factors: 7. If a Member State is not entitled to refuse entry to a person seeking to establish himself under the Agreement on the sole basis that prior entry clearance has not been obtained, is it (a) the fact that, on initial arrival at legitimate for the competent authorities the border of the Member State, to grant such a person leave to enter the person did not seek admission only if his application clearly and pursuant to the Agreement but on manifestly satisfies the same substan- some other basis, which was sub- tive criteria as would have been applied sequently rejected; had he sought prior entry clearance?'

Question 5(a) 82. On that latter aspect, I need merely refer to what I have said with regard to the first question.

78. By that question, the Court is asked to consider whether the substantive condi- tions which United Kingdom legislation 83. So far as concerns the first aspect, I lays down for the grant of the prior entry must admit that receipt of sufficient income clearance which it requires are permissible in order not to have to depend on public having regard to Articles 45(3) and 59(1) funds is not prescribed as such by the of the Agreement. Agreement.

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84. However, I do not think that it is Question 5(b) contrary to the rules laid down by the Agreement for, if Member States may refuse to extend freedom of establishment to a Czech national who intends to com- bine self-employment with paid employ- ment, that is to say to require that self- 87. Still in the context of the fifth question, employment does not serve to circumvent I must now consider whether the fact that a the absence of a right of freedom of move- Czech national is not in possession, on ment for Czech workers, I cannot see how arrival at the border, of the entry clearance they can be prohibited from precluding required by the immigration rules in force establishment in the form of a business in the United Kingdom may justify refusing producing such little income that recourse access. to social assistance is necessary for the survival of the applicant and his family.

88. In my view, the reply is self-evident. How could it be possible to consider that a Member State has, in light of the provisions of the Agreement, the right to require an entry clearance and, at the same time, to 85. Common sense dictates that the Czech prohibit it from penalising failure to com- national's activity must not only be in the ply with that rule? nature of self-employment, in the sense that it is not a disguise for paid employment, but must also ensure for that person genuine material independence. 89. Strangely enough, however, the Com- mission, in its observations, submits that the lack of such clearance cannot justify refusing admission.

91. It seems to me that, in arguing in this of a visa entails, by definition, the absence way, the Commission is confusing the of a right to cross the border. regime applicable in the case of the Treaty with that established by the Agreement. It transposes, wrongly, in my view, to the context of the Agreement the case-law of the Court according to which Community nationals travelling to another Member 94. Thus Article 110c of the EC Treaty 22 State in order to seek employment there, entrusts the Council with the task of provide services or establish themselves 'determin[ing] the third countries whose there are merely exercising a right which nationals must be in possession of a visa they hold directly under the Treaty, so that when crossing the external borders of the the fact that they have not gone through all Member States'. 23 the administrative formalities which Com- munity law still permits cannot attract penalties the severity of which is tanta- mount to a denial of the right which they are exercising. 21 95. Article 5 of Council Regulation (EC) No 574/1999 of 12 March 1999, 24 adopted on the basis of Article 100c of the Treaty, provides:

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97. Regulation No 574/1999 is not, admit- consular services in the applicant's country tedly, applicable to the present case because of origin, and to turn back at the border the Czech Republic is not included in the anyone not already in possession of one. list appended thereto and it only refers to short-term visas. However, according to Article 2 of that regulation, 'Member States shall determine the visa requirements for nationals of third countries not on the common list'. The United Kingdom would 100. That would not constitute a breach of therefore be perfectly entitled to require an the principle of proportionality. First, the entry clearance even for short-term visits. It capacity for temporary accommodation in is all the more entitled to do so where the the vicinity of the ports and airports of the border is crossed with a view to establish- Member States is not unlimited. ment of indeterminate duration.

101. Secondly, applications for establish- ment require detailed examination which 98. Finally, Community law provides that, can take a certain amount of time. The for those countries in respect of which a authorities must be in a position to check visa is required even for mere airport whether the person in question has transit, 26 such a visa is to 'be issued by acquired the financial resources he claims the consular services 27 of the Member to have as a result of drug-trafficking or States' which must 'ascertain that there is other criminal activities, or whether he no security risk or risk of illegal immigra- finds himself in one of the circumstances in tion'. 28 which even a Community national could be refused establishment in another Member State (for example drug addiction or afflic- tion by certain diseases). 29

financial ability to establish himself as a not have one in his possession cannot claim self-employed person, entry into the any right of entry or residence. national territory can no longer be refused. Quite the contrary, possession of an entry clearance constitutes in fact a distinct and additional condition, and failure to be in possession of one on disembarking consti- tutes a ground for the national authorities 106. Secondly, the case-law of the Court on to send the applicant back to his country of the right of residence of Turkish nationals origin. in the Member States is wholly unequivo- cal. A person who has pursued an activity in the territory of a Member State while his situation is not in conformity with the rules of that Member State on the right of entry and residence cannot claim to derive any right by virtue of that activity. 30 103. I consider therefore that the two parts of the fifth question must both be answered in the affirmative.

107. Similarly, a person who has been able to maintain himself in the territory of a Member State with that State's authorisa- The sixth question tion, but whose situation is altogether precarious, in particular pending a decision by the courts regarding the lawfulness of a refusal to grant a right of residence or of a deportation order, cannot claim any right whatsoever under Community law on the basis of a presence which is merely toler- 104. In view of the reasons for which I ated. 31 consider that the United Kingdom is enti- tled to refuse admission to anyone not in possession of a entry clearance, I find no difficulty in answering the sixth question.

veritable bonus for illegal immigration down in the immigration legislation to would be established. apply for entry clearance prior to arrival at the border, and although there is nothing that would prevent the competent autho- rities from deciding to turn him back, it is perfectly entitled to make any decision to 109. Similarly, a person who, while tem- admit him conditional upon the clear and porarily admitted, has been able to pursue manifest fulfilment of the substantive a self-employed activity, perhaps because requirements for the grant of a right of the competent authorities have, in the access and residence for the purposes of exercise of a discretion which no one could establishment. dispute that they possess, deemed it more judicious to allow the person concerned to earn his living rather than to have him become a burden on the social welfare system, cannot claim that he has estab- 112. A Czech national who arrives at the lished himself under the Agreement and border of the United Kingdom without an claim the benefit of the non-discrimination entry clearance may properly, under the rule laid down by Article 45(3). United Kingdom rules, be turned back and has no right to have his situation with regard to establishment examined in exactly the same way as it would have been if he had complied with the prescribed The seventh question procedure.

110. The seventh question does not in 113. Examination of such an application is principle call for an answer, in view of the in itself a privilege, not to say a consent to answer given to the fifth question, but it queue-jumping, granted by the United does none the less provide me with an Kingdom authorities to the person con- opportunity to make a number of observa- cerned and it would be quite improper to tions. discuss the conditions and procedures for granting it.

115. Having reached the conclusion of my Opinion, I would propose that the Court of Justice answer the questions referred by the High Court of Justice of England and Wales, Queen's Bench Division, (Divisional Court) as follows:

— Article 45(3) of the Europe Agreement of 4 October 1993 establishing an association between the European Communities and their Member States, of the one part, and the Czech Republic, of the other part, is of direct effect in so far as it prohibits Czech nationals who have lawfully entered a Member State in order to pursue activities as self-employed persons there from being accorded by that Member State a treatment less favourable than that accorded by it to its own nationals.

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Czech nationals cannot, however, derive any right of entry and residence from that provision.

— Czech nationals cannot rely on Article 45(3) and the first sentence in fine of Article 59(1) of the Agreement in order to challenge the lawfulness of a Member State's laws and regulations regarding entry, stay and establishment of natural persons, unless those laws and regulations are worded or applied in a manner which would make it generally impossible or very difficult for Czech nationals to establish themselves in the Member State concerned, to the point of rendering Article 45(3) of that Agreement ineffective.