Those three agreements are designed to provide an appropriate framework for the accession of those three States to the European Union. In that regard, all of them contain sections dealing with the movement of workers, the right of establishment and services.

They contain, inter alia, provisions prohibiting discrimination on grounds of nationality against nationals of those three States who are self-employed workers, or persons setting up and managing companies. Such nationals are entitled to treatment that is no less favourable than that accorded to companies and nationals of the Member States.

Following the entry into force of these association agreements concluded with the countries of Central and Eastern Europe, the United Kingdom adapted its own immigration legislation (the 1994 Immigration Rules). Those Rules define the special conditions governing leave to reside in the United Kingdom for persons intending to carry on an activity pursuant to those agreements.

The three cases involve proceedings between, on the one hand, Polish, Czech and Bulgarian nationals and, on the other, the United Kingdom authorities.

Mr and Mrs Gloszczuk are Polish nationals. They obtained leave to enter the United Kingdom as tourists in 1989 and 1991, and thus before the relevant Association Agreement came into force. Their respective entry visas contained an express condition prohibiting them from entering employment or engaging in any business or profession in a self-employed capacity. They did not leave the United Kingdom when their visas expired and were thus in breach of national law. Following the birth of their child in 1993, Mr and Mrs Gloszczuk sought to regularise their stay, with Mr Gloszczuk claiming that he had become established as a self- employed building contractor in 1995. Their applications were rejected by the Secretary of State, who took the view that the relevant Association Agreement applied only to persons lawfully present in the United Kingdom.

Mr Barkoci and Mr Malik applied for political asylum in the United Kingdom in 1997. They stated that they were Roma from the Czech Republic, but their applications were unsuccessful. They also submitted applications in 1998 to become established in the United Kingdom under the relevant Association Agreement as a self-employed gardener (Mr Barkoci) and a provider of domestic and commercial cleaning services (Mr Malik). The authorities chose to treat those applications as applications for initial leave to enter, even though Mr Barkoci and Mr Malik were already present within the territory of the United Kingdom. In regard to their plans for establishment, the authorities were not satisfied that these would be financially viable and that the activities contemplated would be carried on in a self-employed capacity, and for those reasons dismissed their applications.

Ms Kondova, a Bulgarian veterinary student, was granted entry clearance in 1993 in the form of a visa valid for a single entry into the United Kingdom for a period of three months to work as a farm labourer. She unsuccessfully applied for political asylum, but notwithstanding this remained in the United Kingdom after her initial leave to enter had expired. Ms Kondova acknowledged that she had intended knowingly to mislead the United Kingdom authorities on her arrival in that State, where she had intended to seek political asylum. Having commenced work as a self-employed cleaner, she applied in 1996 for leave to remain in the United Kingdom pursuant to the provisions of the relevant Association Agreement, despite the fact that she had unlawfully entered that Member State. She married a Mauritian national who had indefinite leave to remain in the United Kingdom, and she invoked the financial assistance which her husband could provide for her. Having failed to secure immediate recognition of the rights to which she considered that she was directly entitled under the relevant Association Agreement, Ms Kondova brought an action seeking damages.

The High Court of Justice, before which proceedings were brought in the three cases between those persons and the United Kingdom authorities, has submitted questions to the Court of Justice of the European Communities concerning the direct applicability and scope of the right of establishment provided for under those association agreements.

The Court of Justice first recalls the purpose served by the association agreements: to promote trade and harmonious economic relations so as to foster the development of prosperity in those States and facilitate their future accession.

The Court considers that the authorities of the Member States remain competent to apply, within the limits set by those agreements, their own national laws and regulations regarding entry, stay and establishment.

However, the Court takes the view that the principle of non-discrimination, from which nationals of Poland, the Czech Republic and Bulgaria must benefit who wish to pursue, within the territory of the Member States of the Union, economic activities as self-employed persons or to set up and manage undertakings which they effectively control, is directly applicable: the principle thus established is sufficiently operational and unconditional to be applied by national courts called to rule on the legal position of the individuals concerned.

The association agreements thus confer on those nationals a right of establishment, that is to say, a right to take up activities of an industrial or commercial character, activities of craftsmen, or activities of the professions, and to pursue them in a self-employed capacity.

The Court cites its case-law stating that the EC Treaty does indeed imply that rights of entry and residence are conferred, as corollaries of the right of establishment, on nationals of the Member States.

The Court takes the view, however, that rights of entry and residence are not absolute privileges granted to Polish, Czech and Bulgarian nationals, and that the exercise of those rights may be limited by the rules of the Member States. That said, those domestic immigration rules must not nullify or impair the benefits accruing to such nationals under the right of establishment provided for by the agreements.

The Court of Justice, called to rule on the compatibility of national immigration legislation with the requirements of the three association agreements concerned, has thus set out the following principles:

-    a Member State cannot refuse entry or residence to a national of one of the States concerned, with a view to his establishment, on grounds of his nationality or his country of residence, or because a general limitation on immigration is provided for, not can it make the right to take up an activity as a self-employed person subject to economic considerations relating to the labour market;

-    it is necessary to determine whether the activity contemplated in the host Member State by persons entitled under the provisions of the association agreements is indeed an activity pursued in a self-employed capacity and not an activity carried out in an employed capacity. Implementation of a national system of prior control as to the exact nature of the activity contemplated (an evaluation of adequate financial resources and reasonable chances of success carried out through detailed investigations) is thus compatible with the association agreements;

-    in contrast, a Polish, Czech or Bulgarian national who makes false representations and circumvents the relevant controls by asserting that he wishes to enter a Member State for purposes of tourism, although in fact intending to take up an economic activity, places himself outside the sphere of protection recognised by the association agreements: a Member State may in that case reject his application and insist that he submit a new application in due and proper form by applying for an entry visa to the competent authorities in his State of origin or another State, provided that this does not prevent him from having his situation reviewed at a later date;

-    the measures taken by the national authorities must not, however, adversely affect the very substance of the rights of entry, stay and establishment of those nationals, who also enjoy fundamental rights (such as the right to respect for family life and the right to respect for property) which follow from the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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