(Reference for a preliminary ruling from the Rechtbank te ’s-Gravenhage)

(Association Agreements between the Communities and, respectively, Bulgaria, Poland and Slovakia – Right of establishment – National legislation under which applications for full residence permits with a view to establishment are rejected without examination where the applicant lacks a temporary residence permit)

Summary of the Judgment

International agreements – Association Agreements between the Communities and, respectively, Poland, Bulgaria and Slovakia – Right of establishment – National legislation laying down a system of prior control which makes entry into the territory of the Member State with a view to establishment conditional on a temporary residence permit obtained in the country of origin – Permissible – Conditions

(Association Agreement between the Communities and Bulgaria, Arts 45(1) and 59(1); Association Agreement between the Communities and Poland, Arts 44(3) and 58(1); Association Agreement between the Communities and Slovakia, Arts 45(3) and 59(1))

Articles 45(1) and 59(1) of the Association Agreement between the Communities and Bulgaria, read together, Articles 44(3) and 58(1) of the Association Agreement between the Communities and Poland, read together, and Articles 45(3) and 59(1) of the Association Agreement between the Communities and Slovakia, read together, do not in principle preclude legislation of a Member State involving a system of prior control which makes entry into the territory of that Member State with a view to establishment as a self-employed person conditional on the issue of a temporary residence permit by the diplomatic or consular services of that Member State in the country of origin of the person concerned or in the country where he is permanently resident. Such a system may legitimately make grant of that permit subject to the condition that the person concerned must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success. The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings.

Those provisions of the Association Agreements must be interpreted as likewise not in principle precluding such national legislation from providing that the competent authorities of the host Member State are to reject an application for a full residence permit with a view to establishment in accordance with the Association Agreements submitted in the territory of that State when the applicant lacks the temporary residence permit thus required by that legislation.

It is immaterial in this regard that the applicant claims to satisfy clearly and manifestly the necessary substantive requirements for grant of the temporary residence permit and the full residence permit with a view to such establishment or that the applicant is legally resident in the host Member State on another basis on the date of his application where it appears that the latter is incompatible with the express conditions attached to his entry into that Member State and in particular those relating to the authorised duration of the stay.

(see para. 39, operative part 1-3)

JUDGMENT OF THE COURT (Grand Chamber) 16 November 2004 (1)

(Association Agreements between the Communities and, respectively, Bulgaria, Poland and Slovakia – Right of establishment – National legislation under which applications for full residence permits with a view to establishment are rejected without examination where the applicant lacks a temporary residence permit)

In Case C-327/02, REFERENCE for a preliminary ruling under Article 234 EC from the Rechtbank te 's-Gravenhage (Netherlands), made by decision of 16 September 2002, received at the Court on 18 September 2002, in the proceedings

Lili Georgieva Panayotova, Radostina Markova Kalcheva, Izabella Malgorzata Lis, Lubica Sopova, Izabela Leokadia Topa, Jolanta Monika Rusiecka,

Minister voor Vreemdelingenzaken en Integratie,

THE COURT (Grand Chamber),

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and R. Silva de Lapuerta (Presidents of Chambers), J.-P. Puissochet (Rapporteur), R. Schintgen, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: M. Poiares Maduro, Registrar: M.-F. Contet, Principal Administrator,

having regard to the written procedure and further to the hearing on 2 December 2003, after considering the observations submitted on behalf of:

– Waltham Abbey Residents Association, by J. Devlin, Senior Counsel, J. Kenny, Barrister-at-Law, and D. Healy, Solicitor,

– An Bord Pleanála, by. B. Foley, Senior Counsel, A. Carroll, Barrister-at-Law, and P. Reilly, Solicitor,

– Ireland, by M. Browne, Chief State Solicitor, S. Finnegan, K. Hoare and A. Joyce, acting as Agents, and by D. McGrath, Senior Counsel, F. Valentine, Senior Counsel, and E. O’Callaghan, Barrister-at-Law,

– the European Commission, by M. Noll-Ehlers and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

a case-by-case examination;

thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

a description of the physical characteristics of the whole project and, where relevant, of demolition works;

a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

the expected residues and emissions and the production of waste, where relevant;

the use of natural resources, in particular soil, land, water and biodiversity.

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

all forms of deliberate capture or killing of specimens of these species in the wild;

deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

deliberate destruction or taking of eggs from the wild;

deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

the Court of Justice ruled as follows in relation to provisions drafted in terms identical to those of Articles 45(3) and 59(1) of the Communities-Slovakia Agreement, namely Articles 45(3) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Czech Republic, of the other part, approved by Decision 94/910/ECSC, EC, Euratom of the Council and the Commission of 19 December 1994 (OJ 1994 L 360, p. 1; ‘the Communities-Czech Republic Agreement’):

‘The condition set out at the end of the first sentence of Article 59(1) of that Association Agreement must be construed as meaning that the obligation on a Czech national, prior to his departure to the host Member State, to obtain entry clearance in his country of residence, grant of which is subject to verification of substantive requirements, such as those laid down in paragraph 212 of [the United Kingdom] Immigration Rules [(House of Commons Paper 395) “the Immigration Rules”], has neither the purpose nor the effect of making it impossible or excessively difficult for Czech nationals to exercise the rights granted to them by Article 45(3) of that Agreement, provided that the competent authorities of the host Member State exercise their discretion in regard to applications for leave to enter for purposes of establishment, submitted pursuant to that Agreement at the point of entry into that State, in such a way that leave to enter can be granted to a Czech national lacking entry clearance on a basis other than that of the Immigration Rules if that person’s application clearly and manifestly satisfies the same substantive requirements as those which would have been applied had he sought entry clearance in the Czech Republic.’

The referring court points out that in Barkoci and Malik, at paragraph 69, the Court of Justice stated, however, as follows:

‘… without even addressing the question whether Article 59(1) of the Association Agreement allows the competent authorities of the host Member State to refuse admission to its territory for a Czech national who does not hold entry clearance, it will be sufficient to examine whether the application by the United Kingdom authorities of national immigration legislation, including the exercise of the Secretary of State [for the Home Department]’s discretion to determine whether the condition relating to possession of entry clearance may be set aside in individual instances, appears on the whole to be in accordance with the condition set out at the end of the first sentence of Article 59(1) of the Association Agreement.’

In those circumstances, the referring court wonders whether the answer which is set out in paragraph 4 of the operative part of the judgment in Barkoci and Malik, read in the light of paragraph 69 of that judgment, was conceived solely in relation to the specific features of United Kingdom legislation. It observes that, in contrast to the latter, Netherlands law does not allow the competent authority, except in the cases expressly laid down by Article 16a of the Vreemdelingenwet, to issue a full residence permit to the plaintiffs in the main proceedings when they do not hold a temporary residence permit.

The referring court points out finally that, since they had failed to obtain the necessary visa, Ms Panayotova and Ms Kalcheva were present in the Netherlands illegally when they submitted their applications for a full residence permit with a view to establishment in that Member State. It states that the situation is, on the other hand, less clear so far as concerns the other plaintiffs in the main proceedings, who, since they were not subject to a visa requirement for a stay in the Netherlands of a duration not exceeding three months and were entitled to the free period referred to in paragraph 8 of this judgment, might have been legally resident in that State before they submitted their applications for full residence permits.

It was in those circumstances that the Rechtbank te ’s-Gravenhage decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

1.‘1. Must the answer given by the Court to question 4 in its judgment of 27 [September] 2001 in Case C-257/99 Barkoci and Malik be interpreted to mean that it is incompatible with Article 45(1) in conjunction with Article 59(1) of the Association Agreement with Bulgaria, Article 44(3) in conjunction with Article 58 of the Association Agreement with Poland and Article 45(3) in conjunction with Article 59 of the Association Agreement with the Slovak Republic for the competent authority, when assessing an application submitted in the Netherlands for a full residence permit with a view to establishment in accordance with the Association Agreement, to refrain from examining the contents of the application solely on the ground that the applicant does not have a temporary residence permit? Does the fact that the substantive entry requirements are clearly and manifestly satisfied make any difference to the answer to this question?

2.Is it relevant for the purposes of answering the first question, and if so how, whether the person applying for a full residence permit is legally resident in the Netherlands at the time of the application, whether or not on the basis of an entitlement other than a temporary residence permit, such as the “free period” referred to in Article 8 of the Vreemdelingenwet?’

Consideration of the questions referred

By its two questions, which it is appropriate to consider together, the referring court essentially asks whether the relevant provisions of the Association Agreements are to be interpreted as precluding legislation of a Member State under which an application for a full residence permit submitted in its territory with a view to establishment there as a self-employed person in accordance with those agreements must be rejected, without further examination, where the applicant does not have a temporary residence permit issued in advance by the diplomatic or consular services of that Member State in the country from which he originates or in which he is permanently resident, and even if he is lawfully present in that Member State by virtue of a status other than that of self-employed person on the date of submission of his application and he claims to satisfy clearly and manifestly the substantive requirements relating to grant of such a temporary residence permit and of the full residence permit for a self-employed person.

The direct effect which Article 45(1) of the Communities-Bulgaria Agreement, Article 44(3) of the Communities-Poland Agreement and Article 45(3) of the Communities-Slovakia Agreement must be recognised as having means that Bulgarian, Polish and Slovak nationals relying on those provisions have the right to invoke them before the courts of the host Member State, notwithstanding the fact that the authorities of that State remain competent to apply to those nationals their own national laws and regulations regarding entry, stay and establishment, in accordance with Article 59(1) of the Communities-Bulgaria Agreement, Article 58(1) of the Communities-Poland Agreement and Article 59(1) of the Communities-Slovakia Agreement (see Gloszczuk, cited above, paragraph 38, Kondova, cited above, paragraph 39, and Case C-268/99 Jany and Others [2001] ECR I-8615, paragraph 28).

While the right of establishment, as defined by the first three provisions cited in the preceding paragraph, entails the conferral of rights of entry and residence as corollaries of that right, it nevertheless follows from the final three provisions cited there that those rights of entry and residence are not absolute privileges, inasmuch as their exercise may, in some circumstances, be limited by the rules of the host Member State concerning the entry, stay and establishment of such nationals (Gloszczuk, paragraph 51, Kondova, paragraph 54, and Jany, paragraph 28).

In order to be compatible with the condition set out in Article 59(1) of the Communities-Bulgaria Agreement, Article 58(1) of the Communities-Poland Agreement and Article 59(1) of the Communities-Slovakia Agreement, the restrictions imposed on the right of establishment by the host Member State’s immigration legislation must, however, be appropriate for achieving the objective in view and not constitute, in regard to that objective, measures which would strike at the very substance of the rights which Articles 45(1), 44(3) and 45(3) of the respective Association Agreements grant to Bulgarian, Polish and Slovak nationals by making exercise of those rights impossible or excessively difficult (Gloszczuk, paragraph 56, and Kondova, paragraph 59).

In this connection, provisions such as Articles 45(1) and 59(1) of the Communities-Bulgaria Agreement, read together, Articles 44(3) and 58(1) of the Communities-Poland Agreement, read together, and Articles 45(3) and 59(1) of the Communities-Slovakia Agreement, read together, do not in principle preclude a system of prior control which makes the issue by the competent immigration authorities of leave to enter and remain subject to the condition that the applicant must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success (Gloszczuk, paragraph 86, Kondova, paragraph 91, and Jany, paragraph 31).

Such a national system of control to check the exact nature of the activity contemplated by applicants, put into operation before they leave for the host Member State, has a legitimate objective in so far as it makes it possible to restrict the exercise of rights of entry and residence by nationals of the countries concerned who invoke those provisions to persons to whom the provisions apply (Gloszczuk, paragraph 58, Kondova, paragraph 61, and Barkoci and Malik, paragraph 62).

Furthermore, such a system of control is capable in particular of being justified in light of the fact that it is easier to check the substantive conditions, and to carry out the detailed investigations which that entails, in the State of origin, having regard in particular to both considerations of language and considerations related to access to information concerning the situation of foreign nationals wishing to become established in a Member State (see Barkoci and Malik, paragraphs 65 and 66).

To require a host Member State which has set up a system of prior control of that kind to provide in addition that its authorities are obliged to examine any application submitted in its territory under the Association Agreements would involve in particular the risk of an influx of applications made during stays for tourism or other purposes that are supposed to be of short duration only. As the Netherlands, Greek and French Governments have pointed out, such a situation would be liable to undermine the system of obligatory prior control set up by the Member State concerned and, given the periods for consideration of the applications and of any actions brought against decisions refusing them, the freedom of that Member State to allow free or simplified access to its territory solely if the proposed stay is of short duration. Also, the effectiveness of Article 58(1) of the Communities-Poland Agreement, Article 59(1) of the Communities-Bulgaria Agreement and Article 59(1) of the Communities-Slovakia Agreement would be impaired.

Since the order for reference does not contain any information concerning the substantive requirements to which issue of a temporary residence permit is subject under the applicable Netherlands rules, it will be for the referring court to check, if necessary, that those requirements are indeed appropriate for ensuring that the objective recalled in paragraph 22 of the present judgment is attained (see, as regards the Netherlands rules in force at the material time in Jany, paragraph 31 of that judgment).

It should also be pointed out that the procedural rules governing issue of such a temporary residence permit must themselves be such as to ensure that exercise of the right of establishment conferred by the Association Agreements is not made impossible or excessively difficult.

It follows in particular that the scheme applicable to such temporary residence permits must be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings (see, by analogy, Case C‑157/99 Smits and Peerbooms [2001] ECR I-5473, paragraph 90). It should be remembered, in this last respect, that Community law requires effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law, and that this principle of effective judicial protection constitutes a general principle which stems from the constitutional traditions common to the Member States and is enshrined by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, in Articles 6 and 13 of the Convention (see, in particular, Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19, and Case C-467/01 Eribrand [2003] ECR I-6471, paragraph 61).

It follows from all of the foregoing reasoning that, when a Member State has opted for a system which makes grant of a right of residence for the purposes of establishment on the basis of the provisions of the Association Agreements dependent on a mechanism of control prior to entry on its territory, it is in principle permissible for that Member State to provide that its immigration authorities are to reject, without further examination, applications for full residence permits made for those purposes on its territory by Bulgarian, Polish or Slovak nationals where they lack the requisite temporary residence permit which they should have obtained from the diplomatic or consular services of that Member State in their country of origin or in the country where they are permanently resident before they left for that Member State.

The referring court asks, however, whether such a rejection is still consistent with those provisions of the Association Agreements where the person concerned is legally resident in the host Member State by virtue of a status other than that of self-employed person at the time of submitting his application for a full residence permit with a view to establishment and where he claims that he satisfies clearly and manifestly the substantive requirements relating to grant of the temporary residence permit and the full residence permit for a self-employed person.

As regards, first, the circumstance that the persons concerned were legally resident in the Netherlands under the free period provided for by Netherlands legislation, it should be noted at the outset that, in the context of a national system based on appropriate verification measures prior to a foreign national’s departure to the host Member State with a view to establishment there as a self-employed person, the foreign national’s temporary admission into the territory of the host Member State on another basis, when he lacks the entry clearance which may be given after that verification, is in no way equivalent to such clearance, so that he cannot effectively rely on the mere fact of such temporary admission in order to contend that he has acquired the right to become established in that Member State as a self-employed person (see, by analogy, Barkoci and Malik, paragraphs 77 to 79).

It is, furthermore, apparent from the Court’s case-law that it is compatible with Article 58(1) of the Communities-Poland Agreement, and therefore with Article 59(1) of the Communities-Bulgaria Agreement and of the Communities-Slovakia Agreement, for the competent authorities of the host Member State to reject an application made under Article 44(3), Article 45(1) or Article 45(3) of those agreements respectively on the ground that, when that application was made, the applicant was residing illegally within its territory by reason of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a separate basis or of the failure to comply with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State (Gloszczuk, paragraph 77).

The same must apply where it appears that the application made pursuant to those provisions is incompatible with the express conditions attached to the entry of the person concerned into the host Member State and in particular those relating to the authorised duration of the stay in that State.

As has been found in paragraph 24 of the present judgment, if Bulgarian, Polish or Slovak nationals were allowed to submit in the host Member State an application for establishment under the Association Agreements, notwithstanding the fact that they entered its territory on the express condition that they stay there only for a maximum of three months, those nationals could easily circumvent the national rules relating to entry and stay of foreign nationals, consequently depriving Article 58(1) of the Communities-Poland Agreement, Article 59(1) of the Communities-Bulgaria Agreement and Article 59(1) of the Communities-Slovakia Agreement of their practical effect.

Bulgarian, Polish or Slovak nationals who do not submit to the relevant controls of the national authorities, by failing to comply with the conditions on which they were granted the right to enter that territory, cannot invoke the protection of the provisions of the Association Agreements relating to the right of establishment in order to escape such conditions.

As regards, second, the circumstance that the Bulgarian, Polish or Slovak national who applies in the Netherlands for a full residence permit with a view to establishment on the basis of the Association Agreements claims to satisfy clearly and manifestly the substantive requirements which should have been checked within the framework of the system of prior control set up by the Netherlands legislation, it is admittedly true that the Court held in Barkoci and Malik, at paragraph 74, that Articles 45(3) and 59(1) of the Communities-Czech Republic Agreement do not preclude the competent immigration authorities of the host Member State from requiring a Czech national, prior to his departure to that State, to obtain entry clearance, grant of which is subject to verification of substantive requirements relating to establishment, such as those set out in paragraph 212 of the Immigration Rules, provided that those authorities exercise their discretion in regard to applications for leave to enter for the purpose of becoming established, submitted pursuant to that agreement at the point of entry into that State, in such a way that leave to enter can be granted to a Czech national, on a basis other than that of the Immigration Rules, if that person’s application clearly and manifestly satisfies the same substantive requirements as those which would have been applied had he sought entry clearance in the Czech Republic.

However, as the Court stated at paragraph 72 of the judgment in Barkoci and Malik, it is to the extent to which the competent immigration authorities in the host Member State adopt a policy of setting aside the mandatory requirement of entry clearance that it appears to be in line with the logic of the system of prior control, as well as justified in regard to the Communities-Czech Republic Agreement, that, in the exercise of their discretion as to an applicant’s individual position, those authorities carry out an assessment of an application to become established submitted pursuant to that agreement at the point of entry into that Member State which is less extensive than that carried out in the case of an application for entry clearance submitted by the Czech national in his country of residence.

As the referring court and the governments which have submitted observations to the Court of Justice have pointed out, in the Netherlands legal order, in contrast to the situation obtaining in the United Kingdom, the immigration authorities do not have such a discretion. Without the temporary residence permit issued by the Netherlands diplomatic or consular services in the State of origin of the person concerned, by virtue of domestic law those authorities in principle have no power to issue a full residence permit with a view to establishment in accordance with the Association Agreements and to check, for that purpose, whether the substantive requirements to which issue of such a permit is subject are met.

Without prejudice to the ability of the Member States to lay down a system of prior control coupled with a possibility of examination of applications made directly in national territory, it is consistent with the logic of a system of prior control such as that applied by the Kingdom of the Netherlands and permissible under the Association Agreements for that Member State to provide in its legal order that, where the requirement to submit, in advance, in their country of origin or the country where they are permanently resident an application for a temporary residence permit with a view to establishment is not met, the competent authorities of that Member State are to refuse Bulgarian, Polish or Slovak nationals, relying respectively on Article 45(1) of the Communities-Bulgaria Agreement, Article 44(3) of the Communities-Poland Agreement and Article 45(3) of the Communities-Slovakia Agreement, the full residence permit which they seek, irrespective of whether the substantive requirements to which grant of such a temporary residence permit is subject are in fact met (see, by analogy, Gloszczuk, paragraph 70, and Kondova, paragraph 75).

It follows from all of the foregoing that the questions referred should be answered as follows:

1.Articles 45(1) and 59(1) of the Communities-Bulgaria Agreement, read together, Articles 44(3) and 58(1) of the Communities-Poland Agreement, read together, and Articles 45(3) and 59(1) of the Communities-Slovakia Agreement, read together, do not in principle preclude legislation of a Member State involving a system of prior control which makes entry into the territory of that Member State with a view to establishment as a self-employed person conditional on the issue of a temporary residence permit by the diplomatic or consular services of that Member State in the country of origin of the person concerned or in the country where he is permanently resident. Such a system may legitimately make grant of that permit subject to the condition that the person concerned must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success. The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings;

2.those provisions of the Association Agreements must be interpreted as likewise not in principle precluding such national legislation from providing that the competent authorities of the host Member State are to reject an application for a full residence permit with a view to establishment in accordance with the Association Agreements submitted in the territory of that State when the applicant lacks the temporary residence permit thus required by that legislation;

3.it is immaterial in this regard that the applicant claims to satisfy clearly and manifestly the necessary substantive requirements for grant of the temporary residence permit and the full residence permit with a view to such establishment or that the applicant is legally resident in the host Member State on another basis on the date of his application where it appears that the latter is incompatible with the express conditions attached to his entry into that Member State and in particular those relating to the authorised duration of the stay.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) rules as follows:

Articles 45(1) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, approved by Decision 94/908/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, Articles 44(3) and 58(1) 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, approved by Decision 93/743/EC, ECSC, Euratom of the Council and the Commission of 13 December 1993, read together, and Articles 45(3) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, approved by Decision 94/909/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, do not in principle preclude legislation of a Member State involving a system of prior control which makes entry into the territory of that Member State with a view to establishment as a self-employed person conditional on the issue of a temporary residence permit by the diplomatic or consular services of that Member State in the country of origin of the person concerned or in the country where he is permanently resident. Such a system may legitimately make grant of that permit subject to the condition that the person concerned must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success. The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings.

Language of the case: Dutch.