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Published online by Cambridge University Press: 17 January 2008
In three judgments delivered on 27 September 2001, the European Court of Justice ruled on the legal effects of clauses in the Europe Agreements which accord candidate country nationals limited rights to establish themselves as self-employed persons in the Member States of the European Union (EU).1 The Court refused to interpret these provisions as steps on the road to full-fledged EU membership which should be given a dynamic reading in order to provide continuing impetus for enlargement. The significance of these judgments lies less in their legal pronouncements than in their wider political implications. The judgments indicate that the Court is not prepared to act as a second chaperone of the process of enlargement alongside the Commission.
1 Cases C–63/99 R v Secretary of State for the Home Department, ex parte Gloszczuk and Gloszczuk; C–235/99, R v Secretary of State for the Home Department, ex parte Kondova; C–257/99, R v Secretary of State for the Home Department, ex parte Barkoci and Malik.
2 Hedemann-Robinson, ‘An overview of recent legal developments at Community level in relation to third country nationals resident within the European Union, with particular reference to the case law of the European Court of Justice’(2001) 38 CMLRev 525, 534
3 See Sevon and Johansson, ‘The protection of the rights of individuals under the EEA Agreement’ (1999) 24 ELRev 373 and the EC-Swiss agreement at <http://www.europa.admin.ch/e/int/>.
4 The EC and their Member States concluded Europe Agreements with Poland, Hungary, Romania, Bulgaria, the Czech and Slovac Republics, the Baltic States, and Slovenia. The agreements concerned in the judgments under discussion are the Association Agreement with Poland ([1993] OJ L 348/2), signed on 16 Dec 1991 and entered into force on 1 Feb 1994 (subsequently referred to as Poland EA), the Association Agreement with the Czech Republic ([1994] OJ L 360/2), which—based on the agreement originally concluded on 16 Dec 1991 with the Czech and Slovak Federal Republic—was renegotiated after the split-up, signed on 4 Oct 1993 and entered into force on 1 Feb 1995 (subsequently referred to as Czech Republic EA), and the Association Agreement with Bulgaria ([1994] OJ L 358/3), signed on 8 Mar 1993 and entered into force on 1 Feb 1995 (subsequently referred to as Bulgaria EA).
5 Art 37(1) Poland EA, Art 38(1) Czech Republic EA, and Art 38(1) Bulgaria EA.
6 Arts 44(3) and (4)(a)(i) Poland EA, Arts 45(3) and (4)(a)(i) Czech Republic EA, and Arts 45(3) and (4)(a)(i) Bulgaria EA, subsequently also referred to as the ‘establishment clause’.
7 Art 58(1) Poland EA and Art 59(1) Czech Republic EA and Bulgaria EA.
8 Case C–63/99, Gloszczuk, para 23 of the judgment.
9 See United Kingdom Immigration Rules (House of Commons Paper 395), esp para 24–8; 211–23.
10 See, eg, Case 104/81 Kupferberg [1982] ECR 3641, Cases 181/73 Haegemann v Belgium [191 A] ECR 449 and C–192/89, Sevince v Staatssecretaris van Justitie [1990] ECR 1–3461.
11 See Case C–262/96 Sttrttl v Bundesanstalt fur Arbeit [1999] ECR 1–2685, Case C–37/98 R.v Secretary of State for the Home Department, ex parte Savas, [2000] ECR 1–0000 (judgment of 11 May 2000).
12 Case C–18/90 ONEM v Kziber [1991] ECR 1–199; Case C–416/96, El-Yassini v Secretary of State for the Home Department [1999] ECR 1–1209.
13 Case C–113/97 Babahenini v Belgian State, [1998] ECR 1–183
14 Case C–262/96 Silrill above n 11, para 60 of the judgment. See also Cases 181/73 Haegemann above n 10, Case 12/86, Demirel v Stadt Schwabisch Gmund [1987] ECR 3719.
15 Case 41/74, Van Duyn v Home Office [1974] ECR 1337, 1347. Direct applicability and direct effect are related but distinct concepts. For an explanation of the distinction in the context of international agreements of the European Union see Cheyne, ‘Haegeman, Demirel and their Progeny’, in Dash wood and Hillion (eds), The General Law of EC External Relations (London: Sweet & Maxwell, 2000), 20–41.
16 References will be given to the judgment in Gloszczuk only, unless there are differences between the findings or special points raised in the other judgments.
17 Case C–63/99, Gloszczuk, paras 33–42 of the judgment.
18 Opinion of Advocate General Alber, delivered on 14 Sept 2000 on Case C–63/99, Gloszczuk, para 93 sub-para (1) and on Case C–235/99, Kondova, para 113 sub-para (1); Opinion of Advocate General Mischo, delivered on 26 Sept 2000 on Case C–257/99, Barkoci and Malik, para 115.
19 Case C–63/99, Gloszczuk, para 87 sub-para 2 of the judgment.
20 Case C–63/99, Gloszczuk, para 87 sub-para 3 of the judgment.
21 Art 58 (1) Poland EA, Art 59 (1) Czech Republic EA, Art 59 (1) Bulgaria EA.
22 Case C–63/99, Gloszczuk, paras 70, 84, and 85 of the judgment
23 It appears from the reported facts that Barkoci and Malik, unlike the applicants in Gloszczuk and in Kondova, were legally present in the UK while submitting their applications. It will be recalled that they originally applied for asylum, which application gave a legal basis to their presence in the UK while the authorities examined and decided upon the merits of their application. Presumably their asylum applications were not based on factual statements ultimately found to be untruthful, but were rejected on the ground that accepting these facts as true they did not constitute sufficient grounds for a successful asylum application. In this case, the rejection of their asylum applications did not imply that they had entered the UK by resorting to fraudulent misrepresentations made to the immigration officers, as the applicants in Gloszczuk and Kondova had done.
24 Case C–257/99, Barkoci and Malik, paras 67 and 69 of the judgment.
25 Case C–63/99, Gloszczuk, para 50 of the judgment.
26 United Kingdom Immigration Rules (House of Commons Paper 395), para 217 (ii).
27 Case C–63/99, Gloszczuk, para 85 of the judgment; Case C–235/99, Kondova, para 90 of the judgment. The point is not addressed in Case C–257/99, Barkoci and Malik.
28 Case C–63/99, Gloszczuk, para 22 of the judgment.
29 In fact, at the time the Europe Agreements were signed, the European Union studiously avoided any commitment to enlargement. A promise of possible future membership was only made to Eastern European countries at the Copenhagen Summit in June 1993. While the European Council then considered that ‘accession will take place as soon as an associated country is able to assume the obligations of membership by satisfying the economic and political conditions required’, this statement was qualified by the condition that the Union had to be capable of ‘absorb(ing) new members, while maintaining the momentum of European integration’ (Bull. EC 6–1993, pt 1.13). For the European Union's early accession-related policy vis-à-vis Eastern European countries see Maresceau and Montaguti, ‘The relations between the European Union and Central and Eastern Europe: A Legal Appraisal’ (1995) 32 CMLRev 1327.
30 I am thinking in particular of the preparation process for the Nice Treaty, the aftermath of the Irish vote on Nice and the Commission's latest position on enlargement, contained in its Strategy Paper 2001 (available at <http://europa.eu.int/comm/enlargementreport2001/index.htm>). The policy developments are described in some recent Editorial Comments, ‘Size matters’, (2001) 26 EL Rev 1–2, ‘Nice—aftermath’ (2001) 38 CML Rev 265 (Guest editorial by Pescatore), ‘Preparing for 2004. The Post-Nice Process’, (2001) 38 CML Rev 493 and ‘Towards accession’ (2001) 38 CML Rev 1329.
31 Case C–63/99, Gloszczuk, para 50 of the judgment.