CJEC, December 12, 1990, No C-100/89

THE COURT,

1 By two judgments dated 21 March 1989, which were received at the Court on 29 March 1989, the Tribunal administratif, Papeete, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 176 of Council Decision 86-283-EEC of 30 June 1986 on the association of the overseas countries and territories with the European Economic Community ( Official Journal 1986 L 175, p . 1 ) in the light of Articles 132(5 ) and 135 of the EEC Treaty .

2 That question, which is identical in both cases, arose in two sets of proceedings relating to two decisions of the High Commissioner of the French Republic in Polynesia, one refusing to grant a residence permit to Mr Peter Kaefer, a tourist of German nationality, and the other ordering the expulsion from that territory of Mr Andréa Procacci, who holds a Swiss passport but claims Italian nationality .

3 The first decision, concerning Mr Kaefer, is based on the rule of French law that a visa issued for the purposes of tourism may not be converted into a residence permit locally; the second decision is based on the fact that Mr Procacci' s situation was irregular under the French Decree of 27 April 1939 in so far as he had remained within the territory of French Polynesia after the expiry of the tourist visa issued to him, did not possess a return ticket for the purpose of his repatriation and carried on a gainful activity .

4 Mr Kaefer and Mr Procacci each brought proceedings before the Tribunal administratif, Papeete, seeking the annulment of each of those decisions, which, they claimed, had been adopted contrary to the provisions of Article 176 of the abovementioned Council Decision . Having decided that the cases raised problems of interpretation of Community law, the Tribunal administratif stayed the proceedings and sought a preliminary ruling from the Court on the same question in each case, namely :

"Must the scope of Article 176 of the Decision of 30 June 1986 of the Council of the European Communities be considered, having regard in particular to the stipulations in Articles 132(5 ) and 135 of the Treaty of 25 March 1957 establishing the European Economic Community, to extend to decisions of any kind which the State authorities having exclusive competence may take on matters concerning the entry into and residence in the territory of French Polynesia of aliens who are nationals of the Member States of the European Economic Community and, if so, are the nature, arrangement and terms of the provisions or stipulations in question such as to be capable of producing direct effect in relations between addressees of the act and third parties?"

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case in the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The jurisdiction of the Court

6 The United Kingdom asks the Court to find that it lacks jurisdiction because the Tribunal administratif, Papeete, is not a court or tribunal "of a Member State" within the meaning of Article 177 of the EEC Treaty .

7 Furthermore, in the United Kingdom' s submission, Part Four of the EEC Treaty constitutes a lex specialis applicable to the overseas countries and territories, to the exclusion of the other provisions of the Treaty, including in particular Article 177 . That interpretation follows, it claims, from both Articles 131 to 136a of the Treaty and from the distinction drawn in paragraphs 2 and 3 of Article 227 between the overseas departments and the overseas countries and territories .

8 In that regard, it is sufficient to note, first of all, that it is not disputed that the Tribunal administratif, Papeete, is a French court .

9 Secondly, it must be pointed out that Part Four of the EEC Treaty, in particular Article 136, empowers the institutions of the Community, in particular the Council, to lay down provisions relating to the overseas countries and territories on the basis of the principles set out in the Treaty, and that Council Decision 86-283 is such a provision .

10 It must therefore be held that the Court has jurisdiction to give a preliminary ruling on the question raised by the Tribunal administratif, Papeete .

The question raised by the Tribunal administratif

11 The question contains two parts seeking to determine, respectively, whether decisions of any kind taken by the relevant national authorities concerning the entry into and residence in an overseas country or territory of nationals of Member States of the Community fall within the scope of Article 176 of Council Decision 86-283 and, if so, whether the nature, arrangement and terms of the provisions of that article are capable of producing direct effect .

The scope of Article 176

12 With regard to the first part of the question, it must be borne in mind that Article 176 of the decision is couched in the following terms :

"As regards the arrangements that may be applied in matters of establishment and provision of services, the relevant authorities of the countries and territories shall treat nationals and companies or firms of Member States on a non-discriminatory basis . However, if, for a given activity, a Member State is unable to provide similar treatment for nationals or companies or firms of the Kingdom of Denmark, the French Republic, the Kingdom of the Netherlands or the United Kingdom of Great Britain and Northern Ireland, established in a country or territory, or for companies or firms subject to the laws of the country or territory concerned and established therein, the relevant authorities of that country or territory shall not be bound to accord such treatment ."

13 As regards employed persons, it is apparent from Article 135 of the Treaty that freedom of movement within the Member States for workers from the overseas countries and territories, and within the overseas countries and territories for workers from Member States, was to be governed by agreements . Since, however, no agreements have been concluded in that field, nationals of Member States may not rely on Community law to claim the right to enter and reside in an overseas country or territory in order to obtain and pursue salaried employment there .

14 It is clear that Article 176 of Decision 86-283 concerns the right of entry and residence only in so far as that right is linked to the right of establishment and provision of services, and does not concern the right of entry and residence in general . The question raised by the Tribunal administratif must be considered in that light .

15 It is obvious that the exercise of the right of establishment and provision of services in the overseas countries and territories must require a right of entry and residence .

16 That right of establishment and provision of services is governed, in accordance with the special provisions adopted under Article 136 of the EEC Treaty, by Article 176 of Decision 86-283, which provides that the relevant authorities of the overseas countries and territories are to treat nationals and companies or firms of other Member States on a non-discriminatory basis, subject to reciprocal treatment .

17 Thus, when, in an overseas country or territory of a Member State, the right of access of nationals of that Member State, other than those from the country or territory in question, to certain activities as a self-employed person is subject to certain restrictions, such as prior authorization of establishment, those restrictions also apply to nationals of other Member States .

18 It must also be pointed out that Council Directive 73-148-EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services ( Official Journal 1973 L 172, p . 14 ) is not applicable to the overseas countries and territories, which are subject to the special provisions laid down by Decision 86-283 .

19 Consequently, the arrangements governing matters of establishment and provision of services in the overseas countries and territories, including the prerequisite right to enter and reside in those countries and territories, must be applied without discrimination only to nationals of Member States who actually carry on or seek to carry on an activity as a self-employed person under the same conditions as those applied to nationals of the Member State of which the overseas country or territory in question is a dependency, subject to the condition of reciprocity laid down in Article 176 of Decision 86-283 . They do not, however, extend to the entry into and residence in those countries and territories of other nationals of Member States who do not carry on or seek to carry on an activity as a self-employed person .

20 The answer to the first part of the national court' s question must therefore be that the scope of Article 176 of Council Decision 86-283 of 30 June 1986 on the association of overseas countries and territories with the European Economic Community does not extend to decisions taken by the relevant authorities of the Member States in regard to the entry into and residence in an overseas territory of nationals of the other Member States, except where such decisions concern the nationals of the other Member States who exercise or seek to exercise the right of establishment or the freedom to provide services in such a territory .

The question of direct effect

21 The second part of the question concerns the direct effect of Article 176 of the decision, as interpreted above .

22 The French Government, the United Kingdom and the Commission submit that Decision 86-283 does not have direct effect because, in their view, it does not meet the relevant criteria, relating to the aims, nature, arrangement and terms of the provisions in question, which the Court has held to apply .

23 In the United Kingdom' s view, it is clear from the judgment in Case 26-62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 that the direct effect of Community law rests upon the purpose of the Treaty to secure economic integration in a common market; the purpose of Part Four of the Treaty is not, however, to establish a common market, nor even to contribute to the establishment of the common market, but to further the interests of the inhabitants of the countries and territories concerned in order to lead them to development .

24 That argument cannot be upheld . Since the time of the judgment to which the United Kingdom refers, the Court has on a number of occasions ruled on questions concerning the possible direct effect of certain stipulations in agreements concluded by the Community with non-member countries . Furthermore, it is settled case-law that the provisions of a Council decision produce direct effects in the legal relationships between the Member States and those subject to their jurisdiction inasmuch as, if they impose an unconditional and sufficiently clear and precise obligation on Member States, they thereby create individual rights which national courts must protect ( see the judgment in Case 9-70 Grad v Finanzamt Traunstein [1970] ECR 825, paragraph 9, and, as regards decisions adopted on the basis of an association agreement, the judgment in Case C-192-89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461 ).

25 The French Government and the Commission submit in that regard that Article 176 of the decision imposed an obligation only as to the result to be achieved, since it is subject to a condition of reciprocity . In the Commission' s view, Article 176 therefore leaves it to each Member State to determine whether or not, for a given activity, it is able to provide the non-discriminatory treatment prescribed .

26 It must be borne in mind that an unconditional provision is one which leaves no discretion to the Member States .

27 It is clear from its wording that, provided that the condition of reciprocity is satisfied, Article 176 of the decision unreservedly requires the relevant authorities to treat nationals of other Member States on a non-discriminatory basis as regards establishment and provision of services, and leaves no discretion to the Member States . It is for the relevant authorities and, when seised of the question, the national courts to decide whether the condition of reciprocity is satisfied .

28 The answer to the second part of the national court' s question must therefore be that the prohibition of discrimination laid down by Article 176 of Council Decision 86-283 may be relied on before the relevant authorities of a country or a territory by a national of a Member State other than the one with which that country or territory maintains special relations, for the purpose of establishing himself or providing services there, provided that the person concerned satisfies the conditions required of nationals not established in that country or territory and if the Member State of which he is a national accords the same treatment to persons from the country or territory in question .

Costs

29 The costs incurred by the French and United Kingdom Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT,

in answer to the question referred to it by the Tribunal administratif, Papeete, by judgments of 21 March 1989, hereby rules :

The scope of Article 176 of Council Decision 86-283-EEC of 30 June 1986 on the association of overseas countries and territories with the European Economic Community does not extend to decisions taken by the relevant authorities of the Member States in regard to the entry into and residence in an overseas territory of nationals of the other Member States, except where such decisions concern the nationals of the other Member States who exercise or seek to exercise the right of establishment or the freedom to provide services in such a territory .

The prohibition of discrimination laid down by Article 176 of Council Decision 86-283-EEC may be relied on before the relevant authorities of a country or a territory by a national of a Member State other than the one with which that country or territory maintains special relations, for the purpose of establishing himself or providing services there, provided that the person concerned satisfies the conditions required of nationals not established in that country or territory and if the Member State of which he is a national accords the same treatment to persons from the country or territory in question .