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2. Whether they fall within the category of agreements concluded with a view to development cooperation or within that of 4. The present case follows on from those so-called 'pre-accession' agreements, 3their preceding cases by virtue of its subject- interpretation frequently involves close matter, namely the free movement of per- examination of those elements which dis- sons and the associated rights of entry and tinguish them from the traditional princi- residence. However, it is distinguishable in ples of Community law. This is a fortiori other respects. the case in view of the fact that some of those principles, adapted to take account of the specific objectives of the agreements, none the less occupy a significant position within them. 5. The provisions of the Europe agreements which are in issue concern, not the free movement of workers, but rather freedom of establishment. The nationals of the non- member countries who invoke that freedom are seeking to establish themselves within 3. Among those principles, the free move- the territory of a Member State in order ment of persons is one of those which has there to pursue a professional activity as self-employed persons. Notwithstanding identical terminology, the legal arrange- 1 — Original language: French. ments governing the freedom of establish- 2 — An association agreement must 'cover the entire space ment at issue in the main proceedings are hetween a commercial agreement and an accession agree- ment' (W. Hallstein, cited by C. Bhimann, in the general not, strictly speaking, those which the conclusion to the colloquium 'Le concept d'association dans les accords passés nar la Communauté: essai de clarifica- Treaty establishes for Community nation- tion'. Actes du colloque, Bruylant, 1999, p. 319). C. Mu- ntami adds that, as originally conceived, association als. agreements were to cover 'everything which went beyond a commercial agreement but remained short of enlargement' Ul'tdem). 3 — B. Flamand-Lévy, 'Essai de typologie des accords externes'. 4 — OJ 1964 217, p. 3687, hereinafter 'the EEC-Turkey Agree- Actes du colloque, cited above, p. 66. ment'.

9. By decisions of 1 July 1997, the Arron- I — Facts and main proceedings dissementsrechtbank te 's-Gravenhage (Dis- trict Court, The Hague), the Netherlands, ruled that the objections lodged against the decisions taken by the Netherlands autho- 7. The dispute in the main proceedings is rities on 6 February 1997 rejecting the between, on the one hand, Ms Jany and applications were well founded and set Ms Szepietowska, who are Polish nation- those decisions aside on the ground that als, and four Czech nationals, Ms Padeve- they were not properly reasoned. tova, Ms Zacalova, Ms Hrubcinova and Ms Uberlackerova, 5and, on the other, the Staatssecretaris van Justitie. 6These nation- als of non-member countries established their residence in the Netherlands at var- ious dates between May 1993 and October 1996 pursuant to the Netherlands Law on 10. By decisions of 12 and 23 June 1998 Aliens, and all of them work as prostitutes and of 3 and 9 July 1998, the IND, ruling in Amsterdam. again on the objections of the applicants in the main proceedings, declared all of them to be unfounded.

8. They applied to the commissioner of the Amsterdam-Amstelland regional police for the issue of residence permits to enable them to work as self-employed prostitutes. 11. The actions brought by the applicants Those applications were rejected by the in the main proceedings before the referring Immigratie- en Naturalisatiedienst (Immi- court seek the annulment of those new decisions by the Netherlands authorities. 5 — Otherwise referred to as 'the applicants in the main proceedings'. 6 — Hereinafter 'the Secretary of State for Justice'. 7 — Hereinafter 'the IND'.

13. In their view, the concept of 'economic 16. According to the Secretary of State for activities [pursued] as self-employed per- Justice, for the Netherlands to admit pros- sons' featuring in the association agree- titutes from associate countries for pur- ments has the same meaning as 'activities as poses of establishment would involve risks self-employed persons' for the purposes of of fraud, as the existence of an independent Article 52, second paragraph, of the undertaking or participation in a company EC Treaty (now, after amendment, Arti- could be simulated solely for the purpose of cle 43, second paragraph, EC), which obtaining a right of residence under the defines the scope of the freedom of estab- association agreement. In particular, there lishment. is no way to be satisfied that the applicants in the main proceedings are genuinely working in a self-employed capacity and that they came entirely of their own free will to the Netherlands. Nor is it possible to 14. Further, the applicants in the main ascertain whether they are able freely to proceedings consider that they have dispose of their income or whether they demonstrated that they are genuinely work- have been recruited by a controller to ing in a self-employed capacity and that whom they must pay over part of that they satisfy all of the corresponding legal income. obligations. They submit that their status as self-employed workers cannot be placed in

8 — OJ199.1 L 348, p. 2, hereinafter 'the EC-Poland Agree- 17. The Secretary of State for Justice takes ment'. 9 — OJ 1994 L 360, p. 2, hereinafter 'the EC-Czech Repuhlic the view that, even if it were accepted that Agreement'. prostitution is an economic activity for the

19. According to the preamble to that RECOGNI[SE] the fact that the final agreement, 10 the contracting parties: objective of Poland is to become a member of the Community and that this associa- tion, in the view of the Parties, will help to achieve this objective'.

'RECOGNI[SE] that the Community and Poland wish to strengthen [their tradi- 20. Article 1(2) of the Association Agree- 10 — Second, 12th and 15th recitals. ment provides that its aims include promo-

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tion of the expansion of trade and harmo- 4. For the purposes of this Agreement: nious economic relations between the par- ties so as to foster dynamic economic development and prosperity in Poland, and provision of an appropriate framework for Poland's gradual integration into the Community. (a) "establishment" shall mean

(i) as regards nationals, the right to take up and pursue economic activ- ities as self-employed persons and 21. The relevant provisions of the EC- to set up and manage undertak- Poland Agreement are contained in Title ings, in particular companies, IV, which is entitled 'Movement of work- which they effectively control. ers, establishment, supply of services'. Self-employment and business undertakings by nationals shall not extend to seeking or taking employment in the labour market or confer a right of access to the labour market of another Party. The provisions of this chapter do not apply to those who are not exclusively self-employed; 22. Article 44(3) and (4) of the EC-Poland Agreement, which forms part of Chapter II, entitled 'Establishment', provides:

The EC-Czech Republic Agreement [BEAR] IN MIND the economic and social disparities between the Community and the Czech Republic and thus [recognise] that the objectives of this association should be 25. Pursuant to Article 123 thereof, the reached through appropriate provisions of EC-Czech Republic Agreement entered into this Agreement; force on 1 February 1995.

26. Apart from some editing details, the following provisions of the EC-Czech 11 — Second, 15th and 18th recitals.

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RECOGNI[SE] the fact that the Czech accorded to its own companies and nation- Republic's ultimate objective is to accede als. to the Community and that this associa- tion, in the view of the Parties, will help the Czech Republic to achieve this objective'.

4. For the purposes of this Agreement: 28. Article 1(2) of the Association Agree- ment provides that its aims include promo- tion of the expansion of trade and harmo- nious economic relations between the parties so as to foster dynamic economic development and prosperity in the Czech (a) establishment shall mean Republic, and provision of an appropriate framework for the Czech Republic's gra- dual integration into the Community.

31. Article 54(1) of the EC-Czech Republic Agreement provides that '[the] provisions of this Chapter shall be applied subject to limitations justified on grounds of public policy, public security or public health'. 34. According to the order for reference, the interpretation of that provision by the Secretary of State for Justice features in Chapter B 12 of the 1994 Vreemdelingen- circulaire. 13 In his view, foreigners can have no entitlement to a residence permit unless their presence within the national territory can serve an essential national 32. Article 59(1) of the EC-Czech Republic economic interest or unless overriding Agreement, which features in Chapter IV, humanitarian reasons or obligations arising entitled 'General provisions', provides: under international agreements require that such a permit be issued. 14

(a) satisfy the conditions generally applic- able to entry in a self-employed capa- city, as well as the special conditions applicable to the exercise of the activity in question; III — The questions submitted for preli- minary ruling

37. Taking the view that the dispute in the (b) have adequate financial resources; and main proceedings called for an interpreta- tion of Community law, the Arrondisse- mentsrechtbank te 's-Gravenhage decided to stay proceedings and to refer the follow- ing questions to the Court for a preliminary ruling: (c) not constitute a danger to public order, national security or public health.

under Article 58 of the Agreement with "economic activities as self-employed Poland and Article 59 of the Agree- persons" contained in those respective ment with the Czech Republic to make provisions so that the activities carried the right of entry and residence subject out by a prostitute in a self-employed to specific conditions, such as those capacity come within the term used in contained in the policy followed by the Article 43 EC (formerly Article 52 of Netherlands, which include the condi- the EC Treaty) but not within that used tion that the alien must, in carrying on in those articles of the Agreements? his business, have adequate means of support (in accordance with Chapter A 4/4.2.1. of the 1994 Vreemdelingen- circulaire, this means a net income which is at least equal to the subsis- 5. If the answer to the previous question is tence level within the meaning of the that the distinction therein referred to Algemene Bijstandswet (General Law is permissible: on Welfare))?

— the business operator must strive to ensure continuity of the undertaking, which means 40. The second relates to the question of inter alia that he must have his whether an 'economic activity pursued in a principal place of residence in self-employed capacity' is a description the Netherlands; which can be attributed to the activity of a prostitute, thereby justifying application of the provisions of the association agree- ments on the right of establishment. If Article 44 of the EC-Poland Agreement and — there must be investment, and Article 45 of the EC-Czech Republic long-term commitments must Agreement were to be construed as mean- be entered into? ing that prostitution is an 'economic activ- ity pursued in a self-employed capacity', the principle of national treatment pre- scribed by those provisions might thereby become applicable in the present case. (b) Do Article 44 of the Agreement with Poland and Article 45 of the Agreement with the Czech Repub- lic provide justification for not 41. After examining the question of the regarding as self-employed any right of entry and residence, I shall seek to person who is dependent on and ascertain the scope of an 'economic activity indebted to the person who recrui- pursued in a self-employed capacity' before ted her and/or placed her in work, determining whether this can apply to even though it is established that, prostitution. as between the person concerned and that third party, there is no question of an employment rela- tionship, against which the term "self-employed" in paragraph 4 of Articles 44 and 45 of the Agree- ments seeks to establish a barrier?' IV — The existence of a right of entry and residence deriving from the freedom of establishment (first and second questions)

46. The principle of non-discrimination, as here worded in Article 44(3), has long been recognised as having direct effect in other 44. A provision in an agreement concluded provisions relating to the free movement of by the Community with non-member coun- persons, whether in the Treaty or in tries must be regarded as being directly association agreements.19 The wording of that article is equally explicit with regard to

16 — In view of the similarity between the two association agreements, the reasoning applied in the present Opinion 18 — See, for example, Case 12/86 Demirel [1987] ECR 3719, to the EC-Poland Agreement (hereinafter 'the Association paragraph 14; Case C-192/89 Sevince [1990] ECR I-3461, Agreement') ought, for purely practical reasons, to be )aragraph 15; Case C-432/92 Anastasiou and Others regarded as transposable in all respects to the correspond- 1994 ECR 1-3087, paragraph 23; Case C-162/96 Racke ing provisions of the EC-Czech Republic Agreement. 1998 ECR 1-3655, paragraph 31; Case C-262/96 Siirid 17 — See the Opinions of Advocate General Alber in Case 1999 ECR I-2685, paragraph 60; and Case C-37/98 C-63/99 Gloszczuk, at present pending before the Court, Savas [2000] ECR 1-2927, paragraph 39. concerning the EC-Poland Association Agreement, and 19 — See, inter alia, Case 167/73 Coi?miission v France [1974] Case C-235/99 Kondova, also pending before the Court, ECR 359, concerning Article 48 of the EC Treaty (now, concerning the EC-Bulgaria Association Agreement, and after amendment, Article 39 EC); Case 2/74 Reyners the Opinion of Advocate General Mischo in Case [197'4] ECR 631, concerning Article 52 of the EC Treaty, C-257/99 Barkoci and Múlik, pending before the Court, and Case C-18/90 Kziber [1991] ECR 1-199, concerning concerning the Association Agreement between the EC and the principle of non-discrimination as featuring in an the Czech Republic. association agreement.

48. Examination of the purpose and nature 51. Article 44(3) of the Association Agree- of the Association Agreement confirms this ment must therefore be regarded as having analysis. According to the second and 15th direct effect, with the result that it may be recitals in the preamble and under Arti- relied on by individuals before national cle 1(2) of the Agreement, its aim is to courts. establish an association to promote the expansion of trade and harmonious eco- nomic relations between the contracting parties and so to foster dynamic economic development and prosperity in the Republic of Poland with a view to facilitating its accession to the Community. 52. The fact that this provision may be relied on does not, of course, prejudge the interpretation of its content. Consequently, it is necessary to determine the effects which may flow, with regard to rights of 49. Such a purpose conferred on the Agree- entry and residence, from the freedom of ment could not be fully realised if those establishment, as that follows from Arti- involved in economic activities were not cle 44(3) of the Association Agreement. themselves placed in a position to ensure

21 — See, as an example of recent case-law, Saras, cited above, 20 — See Sünul, cited above, paragraph 63. paragraph 53.

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55. Admittedly, no freedom of establish- ment is possible if the statutory provisions established by the host State present nation- als of non-member countries with an insur- 59. Extension of the interpretation of a mountable barrier to entry and residence Treaty provision to a comparably, similarly within its territory. or even identically worded provision of an agreement concluded by the Community with a non-member country depends, inter alia, on the aim pursued by each provision within its particular context. A comparison between the objectives and context of the 56. This is the direction taken by the case- law developed in the interpretation of the 22 — See Case 48/75 Royer [1976] ECR 497, paragraphs 31 and Treaty or other association agreements. 32, according to which the right of nationals of Member The right to be treated in the same way as States to enter the territory of another Member State and reside there for the purposes intended by the Treaty, in nationals in the matter of establishment particular to look for or pursue an occupation or activity as a self-employed person, is a right conferred directly by presupposes that a right to enter and reside the Treaty. See also Case C-363/89 Roux [1991] within the territory of the host State will be ECR 1-273, paragraph 9, and Savas, paragraph 60, concerning the freedom of movement of workers as granted to those nationals of non-member established by the EEC-Turkey Agreement.

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agreement and those of the Treaty is of nationals of the non-member country con- considerable importance in that regard. 23 cerned a right of residence within the territory of the Member States. In contrast to the EEC-Turkey Agreement, the Asso- ciation Agreement does not authorise the free movement of workers. 60. The Treaty seeks to establish an inter- nal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital. 2 4The Association 63. These differences of content linked to Agreement, for its part, is designed to comparable end objectives reinforce the provide an appropriate framework for idea of arrangements governing free move- Poland's gradual integration into the Com- ment which have not thus far been fina- munity. 25 lised.

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that fact, freely establish himself or herself C — The condition of adequate resources there, 26 for a Polish national that freedom imposed on the right of entry and residence will be restricted by the national legislation of the Member States governing the entry and residence of aliens. The right of entry and residence conferred on Polish nationals is thus by no means an absolute privilege. 69. The second question submitted for consideration relates to the conditions to which the Kingdom of the Netherlands subjects the entry and residence of foreign- ers within its territory, which include the requirement that a foreign national must have adequate resources. 27

67. That right may be limited by the host Member State, provided that, in accor- dance with the wording of Article 58(1) of the Association Agreement, the benefits 70. Among the other conditions relating to accruing to any Party under the terms of a entry and residence, the referring court specific provision of the Association Agree- mentions the principle under Netherlands ment are not thereby nullified or impaired. law that a foreigner must not constitute a threat to public order, public safety or public health. The Arrondissementsrecht- bank does, however, point out that, in view of Article 58(1) of the Association Agree- ment, this provision is not included in the question. 28

ment, rather than on the residence of 75. It is for that reason necessary to foreigners. examine whether the condition of adequate resources set out in the national legislation is such as to affect the advantages which the Republic of Poland derives from the provisions of Article 44(3) of the Associa- tion Agreement. 30 72. By its second question, the Netherlands court is thus seeking in substance to ascertain whether Articles 44(3) and 58(1) of the Association Agreement preclude national legislation which makes the right of entry and residence of a Polish national wishing to take up and pursue an economic 76. In order to ensure that this measure activity as a self-employed person within does not nullify or impair the advantages the territory of the host Member State which the Republic of Poland derives from subject to the condition that the exercise of the right of establishment, it is necessary to that activity provides him with adequate ensure that the measure limiting the right of means of support. 29 entry and residence under Article 58(1) of the Association Agreement is not of such a kind as to affect adversely the substance of that right.

73. Article 58(1) of the Association Agree- ment makes an express reservation in regard to the competence of Member States concerning the entry and residence of nationals of each contracting party, with 77. The condition of adequate resources the result that it is clear that national undoubtedly constitutes a restriction on legislation constitutes the norm in this area.

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both residence and establishment in so far If the person concerned does not have as non-compliance with that condition will adequate resources when entering the ter- disentitle a Polish national from entering ritory of the host Member State, there is a the territory of the Member State for the risk that he will seek to supplement his purpose of there exercising any activity income by recourse to paid employment or whatever, in particular an activity as a self- public funds. This risk still continues, and employed person. indeed is even increased, if the absence of the essential minimum required by national legislation is confirmed after the person concerned has entered national territory, a fact which would provide evidence that his 78. Thus, in order to be permissible, that undertaking has been unsuccessful and measure must pursue a lawful objective. It would point to the likelihood of a search must also be appropriate for guaranteeing for alternative resources. 31 achievement of that objective without going beyond what is necessary to that end.

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the territory of the host Member State claims, concern those who seek to carry out subject to the condition that such person unqualified work, who have not drawn up has adequate resources. any business strategy or made any invest- ment whatever. 32

83. The referring court goes on to ask what constitutes 'economic activities [pursued] 86. The Association Agreement, so it as self-employed persons' featuring in Arti- argues, is a first step towards integration cle 44(4)(a)(i) of the Association Agree- of the associate countries within the Com- ment. munity. The interpretation proposed by the Netherlands Government takes into account the difficulties linked to the socio-economic disparities between the Community and those countries.

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88. By those questions, the national court is gory of economic activities pursued in a asking whether the notion of 'economic self-employed capacity. 35 activities [performed] as self-employed per- sons', within the meaning of Arti- cle 44(4)(a)(i) of the Association Agree- ment, falls to be construed as referring only to activities in a self-employed capacity 91. Regard being had to the wording of requiring a professional qualification and that provision, any activity will come carried out by a trader residing in the host within the scope of the freedom of estab- Member State, in accordance with certain lishment if it is economic in character and is specific requirements, such as the prepara- performed in a self-employed capacity. 36 tion of a business strategy, the making of Even if it diverges from Article 52 of the investments and the assumption of long- Treaty in the manner in which it describes term commitments, with the person in the activities covered by the freedom of question devoting his attention to both establishment, the wording of Arti- management and the production of goods cle 44(4)(a)(i) of the Association Agree- or services. ment does not lend itself to a restrictive reading of the scope of that provision with regard to the nature of those activities. As is the case with the term 'economic activities as self-employed persons', the notion of 'activities as self-employed persons' does not make the activity in question subject to any whatsoever of the conditions set out above. The benefit of this freedom thus 89. That provision must be interpreted on does not appear to be linked to compliance the basis of its wording and of the purpose with any condition regarding qualifica- which it serves in the measure containing tions, residence or the manner in which it. 34 the profession is exercised.

96. It cannot therefore be discounted in principle that the situation of that non- member country may be subject to different 93. Consequently, in accordance with this rules, even though those rules address the latter case-law, and with that which states same principle of freedom of establishment. that, where there is divergence between the To this must be added the existence of various language versions of a Community economic and social disparities between the text, the provision in question must be Community and the non-member country interpreted by reference to the purpose and which the Association Agreement seeks to general scheme of the rules of which it reduce through 'appropriate provisions'. 40 forms part, 39 it is necessary to examine these latter aspects of the provision in question. 97. Regard being had to these objectives, the hypothesis of a difference between the Treaty and the Association Agreement affecting the legal conditions governing freedom of establishment is not per se 94. It is true that one may reason, on the improbable. basis of the Association Agreement's objec- tive of creating the conditions for the future accession of a non-member country to the Community, that the system of establish- ment which it introduces is less developed 98. In the absence, however, of any indica- than that in the Treaty. tion resulting from the actual wording of the Association Agreement, this can be the position only if it was indeed the contract- 37 — Point 59 and footnote 30 of the present Opinion. ing parties' intention to introduce an inter- 38 — In this regard, a comparison of the language versions of mediate right of establishment, a hypoth- Article 52, second paragraph, of the Treaty and of esis which has in no way been established. Article 44(4)(a)(i) of the Association Agreement docs not reveal any particular tendency with regard to identity of or differences in the expressions used in the Treaty and the Association Agreement. The terms employed are some- times rigorously identical (the German and Danish ver- sions, which use the notion of 'independent economic activity') or very close (the English, Dutch, Greek, Portuguese, Finnish and Swedish versions). The expres- sions diverge in French, as we have seen, but also in italian 99. No more than the provisions of the and Spanish. It should be pointed out that, under Association Agreement relating to the right Arricie 120 of the Association Agreement, the language versions of the Agreement are all equally authentic of establishment, its preamble does not (Article 122 of the FC-Czcch Republic Agreement). 39 — See, as a recent example of settled case-law. Case C-482/98 Italy v Cuumussum | 2 0 0 0 | FCR I-10861, paragraphs 46 to 49. 40 — 12th recital in the preamble.

100. The objectives pursued by the signa- 101. The position taken by the Netherlands tory States are described in general terms Government thus has no basis in the and do not contain any precise reference to Association Agreement. a right of establishment having a limited scope. From the mere fact that the Associa- tion Agreement seeks to reduce the dispa- rities and to strengthen the links between the contracting States with a view to the integration of one of them within the Community, it strikes me, at the very least, 102. The argument that it is for the Mem- as arbitrary to infer that one of the rights ber States to provide themselves with the set out in that agreement, among others, 41 means for preventing nationals of the non- ought to be narrowly construed. A fortiori, member countries from invoking the right there would be no justification for stating, of establishment for the purpose of seeking in the absence of any serious indication paid employment, contrary to Arti- derived from the Association Agreement, cle 44(4) (a) (i) of the Association Agree- that the restrictive construction to be ment, within Community territory is not placed on the principle in question concerns devoid of cogency.

. .', Article 55(1) ments of a faithful application of the states that '[t]he Parties undertake. . . to take the necessary steps to allow progressively the supply of services. . .'. In Association Agreement. 42 one case, the Association Agreement introduces an obliga- tion as to the result, while in the other the rule resembles more an obligation imposed on the contracting parties to provide the means, so much so that one writer has found it possible to state that 'Central and Eastern European countries' nationals are entitled to a real right of establish- ment and none of them benefit from the right to supply services in the Community' (D. Martin, 'Association Agreements with Mediterranean and with Eastern Coun-

accession. 42 — Paragraphs 37 to 39 of its written observations.

106. While those criteria may be used as pointers to the true intentions of the person concerned, they can purposefully be con- strued only after they have been considered against the nature of the activity which that 109. It cannot be entirely ruled out that the person declares he wishes to pursue in a exercise of professional activities other than self-employed capacity. One cannot impose prostitution could be adversely affected by

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the interpretation proposed by the Nether- may be prohibited without any legitimate lands Government. 43 reason.

110. It is hazardous to assume a priori that 114. The condition relating to the level of all economic activities carried out in a self- resources, on which the right of entry and employed capacity require, for example, a residence may lawfully be made to depend, qualification or investments. is in itself of such a kind as to inform the competent authorities regarding the inten- tion of the nationals of the non-member countries not to seek paid employment.

116. As regards the obligation to have one's principal residence in the Nether- 113. On another hypothesis, the possibility lands, which, according to the referring cannot be entirely ruled out that, although court, is justified by the need to ensure low in number, perfectly lawful activities continuity of the undertaking, this ground, invoked by the Netherlands Government, does not appear convincing. 43 — Many other professional activities may undoubtedly be considered not to require any particular qualification and as thus failing to satisfy the condition of 'work pursuant to qualifications' provided for under national legislation (door-to-door salesmen are one example). This may also be the case with regard to activities the exercise of which, having regard to their nature, cannot always be made subject to a control of the level of qualifications, such as is This measure constitutes a restriction on the case with certain artistic activities (see the example of a painter in Case 197/84 Steinhauser [1985] ECR 1819). the freedom of establishment inasmuch as it These activities also do not call for a business strategy or specific investments. prevents a trader established in Poland

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117. It follows that the notion of 'economic activities [performed] as self-employed per- sons', within the meaning of Arti- cle 44(4)(a)(i) of the Association Agree- ment, must be construed as not being 119. It is appropriate at the outset to recall reserved solely to economic activities per- the particular nature of the activity in formed in a self-employed capacity, requir- question. The antiquity of the practice of ing a professional qualification and carried prostitution and the tolerance demonstra- out, by a trader residing within the territory ted towards it in most Western European of the host Member State, pursuant to States have not sufficed to remove it from certain precise detailed arrangements, such the group of activities censured by public as the need to draw up a business strategy, moral standards and monitored by those carry out investments and assume long- responsible for enforcing public policy. The term commitments, with the trader having image of the human person which this to be involved in both management and the practice tends to incorporate and the con- production of goods or services. nections which its practice favours with a certain form of delinquency 45 have elicited reactions on the part of societies which 44 — Sec, inter Mi, Case 107/83 Klopp [1984] ECR 2971, Case C-114/97 Commission v Spain |1998| ECR 1-6717, and have, however, rarely taken the form of a Case C-162/99 Commission v Italy | 2 0 0 1 | ECR 1-541. With specific regard to prostitution, however, the question definitive ban. of multiple residences seems to me to be of secondary importance. Given its nature, it is clear that this activity does not lend itself to installation in more than one place. The hypothesis that a prostitute docs not establish her 45 — It goes without saying that the dividing line between main residence within the territory of the host State but prostitution and human trafficking is not always easy to will travel there on a regular basis derives rather from the identify in view of the difficulty m establishing that those logic of the free provision of services, within the meaning engaged in prostitution arc acting voluntarily. Procuring, o f the Treaty, which will then justify a question being moreover, is, in the same way as the sexual exploitation of asked as to the corresponding legal arrangements provided children, more often a cause for concern on the part of the for by the Association Agreement, which we know imposes authorities responsible in each Member State for imple- less rigorous obligations on the contracting parties (sec menting public poliev. Finally, the prostitution scene is footnote 41). frequently linked to that of drugs.

46 — Contrary to what the referring court has indicated, prostitution is not banned in the majority of the 'associa- 123. Like the United Kingdom Govern- tion countries'. According to the information available to me, in ten Community Member States at least, the exercise ment, I take the view, in replying solely to of prostitution by an individual does not amount to an offence (Kingdom of Belgium, Kingdom of Denmark, the requirement of a legal classification, Federal Republic of Germany, Kingdom of Spain, French that prostitution is an activity of a com- Republic, Italian Republic, Grand-Duchy of Luxembourg, Kingdom of the Netherlands, Kingdom of Sweden, United mercial character. Kingdom of Great Britain and Northern Ireland). A special situation obtains in Sweden, where it is the clients of prostitutes, but not the prostitutes themselves, who face prosecution (Le régime juridique de la prostitution fémi- nine, Les documents de travail du Sénat, Series: Législation comparée, No LC 79, 11 October 2000, Paris). 47 — Case C-275/92 Schindler [1994] ECR I-1039, paragraph 32. On 24 February 1997 the Council of the European Union adopted a joint action on the basis of Article K.3 of the Treaty on European Union concerning action to 124. In its generally accepted meaning, the combat trafficking in human beings and sexual exploita- tion of children (OJ 1997 L 63, p. 2). notion of 'commerce' covers both the

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exchange of goods and the supply of cle 2 EC) includes supplies of paid employ- services. 48 ment and those of remunerated services. 51

130. Should the Court be persuaded, how- ever, to rule that prostitution does not have the characteristics of an 'economic activ- ity', on the ground that it is not a 'com- 127. Under the Treaty, an 'economic activ- mercial activity' for the purposes of Arti- ity' within the meaning of Article 2 of the cle 44(4) (c) of the Association Agreement, EC Treaty (now, after amendment, Arti- 51 — The definition of 'economic activity' within the meaning of Article 2 of the Treaty is general. It is not confined to any 48 — Commerce: 'activity consisting in the purchase, sale, one of the freedoms of movement, whether of persons or of exchange of products, victuals, valuables, and the sale of services (Joined Cases C-51/96 and C-191/97 Deliège services: engage in commerce' (Le Petit Larousse Grand [2000] ECR I-2549, paragraph 53). The same reasoning is format, Dictionnaire encyclopédique, éditions Larousse, in particular applicable, pursuant to Article 60, first Paris, 1993); 'transaction, activity of purchase and resale... paragraph, of the EC Treaty (now Article 50, first para- of a product or item of value; by extension, the provision graph, EC), to the definition of 'provision of services' since, of certain services' (Le Petit Robert, Dictionnaire de la according to that provision, services are considered to be langue française, éditions Dictionnaires Le Robert, Paris, services where they are normally provided for remunera- 1999). tion (Deliège, cited above, paragraph 55). The same requirement relating to the supply of consideration applies 4 9 — Case 168/84 Berkholz [19851 ECR 2 2 5 1 , paragraph 19. to service activities that are subject to the freedom of 5 0 — Case 196/87 Steymann [19881 ECR 6159, paragraphs 3 establishment (Case C-55/94 Gebhard [1995] ECR I-4165, and 4. paragraph 20, and Deliège, paragraph 55).

132. It follows from the Court's settled case-law that one version alone cannot take precedence over all other language ver- sions. 52 The same conclusion seems to me unavoidable in the present context, where 135. That notwithstanding, one cannot two language versions are contradicted by entirely discount the possibility that there all the others. Uniform interpretation of are some who engage in this activity with- Community rules requires that these iso- out being automatically placed under the lated versions be read and applied in the strict control of a third party. light of the versions drawn up in the other Community languages. In the absence of indicia pointing to any intention on the part of the signatory States to limit the scope of the scheme established by the Association Agreement with regard to the 136. Admittedly, as the referring court right of establishment, it is appropriate to stresses, the conditions in which prostitutes follow the letter of the provision in issue. 53 — The abovementioned report compiled by the French Senate mentions six States, of the eight whose legislation was 52 — See, as a recent example of settled case-law, Case examined, which criminalise all forms of procuring. To C-219/95 P Fernere Nord v Commission [1997] these six States must be added the French Republic and the ECR 1-4411, paragraph 31. Grand-Duchy of Luxembourg.

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ply their trade are difficult to monitor, 140. The condition linked to the exercise of particularly with regard to confirming the the activity, in a self-employed capacity, is presence of a procurer and assessing how laid down by Article 44(4)(a)(i) of the independent the prostitutes are vis-a-vis Association Agreement. that person. 54

54 — Third question in the order rot reference. 55 — See footnote 35.

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there is no remunerated relationship for the precludes a self-employed trader from purposes of Article 48 of the Treaty. 56 invoking that status for the purpose of obtaining paid employment. It must be added that the principle of non-discrimina- tion introduced in Article 37 of the Asso- 144. Reasoning once again within the con- ciation Agreement is limited to the condi- text of the Association Agreement, in tions covering work, remuneration and which neither the purpose nor the wording dismissal. 58 Further, this right is set out of the relevant provisions reveals any subject to the conditions and modalities grounds for giving a different interpretation applicable in each Member State, which on this point to the scheme governing leaves the Member States with a substantial freedom of establishment which it intro- margin of assessment for laying down the duces as compared with the corresponding criteria governing access to activities in an scheme under the Treaty, it is appropriate employed capacity. to envisage transposing that definition to Article 44(4)(a)(i) of the Association Agree- ment.

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the scope of public-policy considerations ship, which is as distant as it is possible to and the protection of personal dignity and be from a normal work relationship. integrity.

152. In any event, prostitution may be 149. Bearing in mind the specific interest in classified as an economic activity pursued identifying the degree of autonomy which in a self-employed capacity, for the pur- the prostitutes enjoy, it is necessary to poses of Article 44(4)(a)(i) of the Associa- examine the two criteria applicable, namely tion Agreement, once it has been estab- the existence of a relationship of subordi- lished that the prostitute performs her nation and the payment of remuneration. activity in return for remuneration which is paid to her directly and in full, without any possibility of the choice of this activity and the arrangements for its exercise being dictated by a third person. 150. According to the Court's case-law, any person who, for a certain period of time, performs services for and under the direc- tion of another person in return for which he receives remuneration is to be treated as 153. It is a matter for the national court to being a 'worker' within the meaning of determine in each case, in the light of the Article 48 of the Treaty.59 evidence presented to it, whether those requirements have been satisfied.

157. In contrast, such a right does exist as In the same way as other activities liable to against nationals of the non-member coun- have an adverse effect on public order, it is try, provided that no arbitrary distinction is not possible to disregard the moral, reli- applied in the exercise of that right. 64 gious or cultural considerations which attach to prostitution. 60 The risks associ- ated with prostitution outlined above 61 justify national authorities having a discre- tion sufficient to determine the needs involved in protecting the social order, in 158. According to the Court's settled case- particular with regard to the details con- law, reliance by a national authority on the cerning the exercise of that activity. In concept of public policy presupposes the those circumstances, it is for them to assess existence of a genuine and sufficiently whether it is not only necessary to restrict serious threat affecting one of the funda- that activity but also to prohibit it, provi- mental interests of society. Although Com- ded that those restrictions are not discrimi- munity law does not impose on the Mem- natory. 62 ber States a uniform scale of values as regards the assessment of conduct which may be considered to be contrary to public policy, conduct may not be considered to be of a sufficiently serious nature to justify restrictions on the admission to or resi- 156. Second, the public policy proviso dence within the territory of a Member contained in Article 53(1) of the Associa- State of a national of a non-member tion Agreement allows the contracting country in the case where the host Member parties to impose limits justified on grounds State does not adopt, with respect to the of public policy in regard to nationals of same conduct on the part of its own the other parties. In the same way as under nationals or nationals of other Member the Treaty, it may be accepted that the host States, repressive measures or other genuine Member State is entitled, vis-à-vis the non- and effective measures intended to combat such conduct. 65

(1) Article 44(3) of the Europe Agreement of 16 December 1991 establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, and 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, have direct effect and may for that reason be relied on by individuals before national courts.

(2) Article 44(3) of the EC-Poland Association Agreement, read in the light of Article 58(1) thereof, and Article 45(3) of the EC-Czech Republic Association Agreement, read in the light of Article 59(1) thereof, must be construed as meaning that the rules on establishment which they introduce do not include an obligation on the host Member State to grant a right of entry to and

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residence within its territory to Polish and Czech nationals respectively, as the exercise of that right is subject to compliance with the limits fixed by the host Member State regarding entry, residence and establishment of those nationals.

(3) Articles 44(3) and 58(1) of the EC-Poland Association Agreement and Articles 45(3) and 59(1) of the EC-Czech Republic Association Agreement do not preclude national legislation which makes the right of entry and residence of Polish and Czech nationals wishing to take up an economic activity and to pursue it in a self-employed capacity within the territory of the host Member State subject to the condition that they have adequate resources.