Report for the Hearing in Joined Cases C-100/89 and C- 101/89
I — Facts and procedure
1. Legal background
(a) Provisions of Community law
The first subparagraph of Article 227(3) of the EEC Treaty provides that the special arrangements for association set out in Part Four of the Treaty (Articles 131 to 136) are to apply to the overseas countries and territories listed in Annex IV to the Treaty. Article 136 provided for a Convention to determine, for an initial period of five years, the details of and procedure for the association of the overseas countries and territories with the Community.
Subsequent provisions applicable to those territories are to be adopted by the Council, acting unanimously. The original convention signed at the same time as the Treaties of Rome was replaced by a Council Decision of 25 February 1964 (Journal officiel 1964 93, p. 1472, not published in English), the validity of which was extended several times. Council Decision 86/283/EEC of 30 June 1986 (Official Journal 1986 L 175, p. 1) is applicable for the period 1 July 1986 to 28 February 1990. Article 176 of that decision, which lays down the provisions governing establishment and freedom to provide services, provides :
Those rules apply to French Polynesia.
(b) Provisions of French law
Law No 84-820 of 6 September 1984 (Journal officiel de la République française, 7.9.1984, p. 2831) provides that French Polynesia is to have internal autonomy within the framework of the Republic and is to be self-governing through its elected representatives. However, Article 3 of that law provides that the authorities of the State are to be competent, inter alia, in matters of external relations, controls on immigration and aliens, the maintenance of order, the administration of justice and judicial organization.
Entry into and residence in French Polynesia for French and foreign nationals are governed by a Decree of 27 April 1939 (Journal officiel de la République française, 3.5.1939, p. 5622), and more detailed rules were adopted by Order No 1515 DRCL of the High Commissioner of the Republic of 25 September 1985 (Journal officiel de la Polynésie française, 4.10.1985, p. N. S.345).
Those measures draw a distinction between nonimmigrant aliens who land in the territory for purposes of tourism and those who go to French Polynesia in order to establish themselves, engage in an occupation, carry on an industrial activity ... , who are deemed to be immigrants.
Conditions for residence are laid down in Title IV of the decree and in the Order of 25 September 1985. Visas issued to aliens are valid for a maximum of three months, but their validity may be extended subject to the condition that the total length of stay may not exceed six months. The order provides that an alien whose visa or residence entitlement has expired must leave the territory at the earliest opportunity and that a visa may not under any circumstances be converted into a residence permit locally; moreover, a visa issued for the purpose of tourism precludes absolutely any engagement in gainful activity or paid employment. Article 9 of the decree, finally, provides that no alien may engage in a commercial, industrial or professional activity unless he has made a prior declaration to the Head of the General Administrative Service.
2. The disputes in the main proceedings
In Case C-100/89, Mr Peter Kaefer, a tourist of German nationality, entered the territory of French Polynesia on 28 September 1985 and left it again regularly every six months in order to comply with the rules summarized above. He subsequently applied for a residence permit, which was refused by decision of the High Commissioner of the French Republic in Polynesia of 28 December 1988. That decision was taken on the ground that it was impossible to convert a tourist visa into a residence permit locally.
Mr Kaefer applied to the Tribunal administratif, Papeete, to have the decision annulled. He maintains that the decision was taken without heed to the provisions of Article 176 of the abovementioned Council Decision of 30 June 1986.
The Tribunal administratif, Papeete, considered that the resolution of the dispute raised questions of interpretation to which there is no clear answer, and, by judgment delivered on 21 March 1989, stayed the proceedings and requested the Court of Justice to give a ruling under Article 1 77 of the Treaty.
In Case C-101/89, Mr Andréa Procacci entered the territory of French Polynesia on 1 March 1987 with a Swiss passport and a tourist visa for three months, subsequently renewed for a further three-month period. He claims that he engaged in various activities in the territory, including the occupations of signwriter and itinerant picture salesman. On 24 September 1988, he was stopped for a number of road-traffic offences. Mr Procacci failed to report to the gendarmerie to provide proof of the identity he had given when stopped, but was found again and was then charged with a number of other offences, including using a false surname, insulting a member of the public forces, unauthorized residence, failure to possess a residence or work permit, failure to possess a trading licence, and failure to register with the Register of Trade.
Consequently, by order of 2 December 1988, the High Commissioner of the Republic ordered Mr Procacci's deportation from the Territory of French Polynesia, on the grounds that his conduct was prejudicial to public order and that he had been residing in the territory unlawfully since the expiry of his tourist visa, was not in possession of a return ticket for his repatriation and had engaged in gainful activity, contrary to the applicable rules.
The plaintiff applied to the Tribunal administratif, Papeete, to have that decision annulled. He claims that he has Italian nationality, and makes the same submission as Mr Kaefer, based on an infringement of Article 176 of the Council Decision of 30 June 1986. The Tribunal administratif considered that the ground based on a threat to public order was erroneous, but, by judgment delivered on 21 March 1989, stayed the proceedings and referred a question to the Court of Justice.
The question referred to the Court by the national court was the same in both cases, namely:
3. Procedure before the Court
The judgments of the Tribunal administratif, Papeete, were registered at the Court on 29 March 1989.
By letter of 27 July 1989, the Tribunal administratif, Papeete, informed the Court that the French State had appealed to the Conseil d'État (State Council) against the two judgments of 21 March 1989 referring the question to the Court. However, on 11 August 1989, it considered that none of the circumstances which might have enabled it to request the Court to suspend the reference proceedings in Cases C-100/89 and C-101/89 applied.
In accordance with Article 20 of the Protocol of the Statute of the Court of Justice of the European Communities, written observations were submitted on 31 July 1989 by the Commission of the European Communities, represented by H. P. Hartvig and E. Lasnet, members of the Legal Department of the Commission, acting as Agents; on 3 August 1989 by the United Kingdom, represented by J. E. Collins, Treasury Solicitor, acting as Agent; and on 14 August 1989 by the Government of the French Republic, represented by R. de Gouttes, Deputy Director for Legal Affairs in the Ministry of Foreign Affairs, acting as Agent, assisted by C. Chavance, Central Government Administrator, acting as Deputy Agent.
The two cases were considered together in the written observations, although they had not yet been joined by the Court.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, by order of 17 January 1990, to join these cases for the purposes of the oral procedure and the judgment, and to open the oral procedure without any preparatory inquiry.
II — Written observations submitted to the Court
1. Admissibility of the reference
The United Kingdom raises the preliminary issue of the admissibility of the reference, and concludes that the Court lacks jurisdiction to give a preliminary ruling in these cases. It submits that the Tribunal administratif, Papeete, is not a court or tribunal of a Member State within the meaning of Article 177 of the Treaty. It bases its argument on Article 227 of the EEC Treaty, which defines the territorial application of the Treaty.
In view of the distinction which that article draws between the French overseas departments and the overseas countries and territories, the United Kingdom maintains that only courts and tribunals in the overseas departments may directly apply Community law and, therefore, make references to the Court of Justice under Article 177 of the EEC Treaty. It considers that Part Four of the Treaty, on the other hand, constitutes a lex specialis applicable to the overseas countries and territories, to the exclusion of the other provisions of the Treaty, except where expressly incorporated by reference. It concludes that Article 177 does not apply to the overseas countries and territories.
In those circumstances, the United Kingdom suggests that the Court should apply Article 92 of the Rules of Procedure and declare of its own motion that it lacks jurisdiction, as it has done in the past (Case 138/80 Barker [1980] ECR 1975), but it also considers, alternatively, that it is open to the Court to rule on the question of jurisdiction under the normal procedure for a reference.
The Commission stresses that it is possible to have doubts as to the Court's jurisdiction in view of the specific nature of the arrangements governing overseas territories and the comparison that may be drawn between those provisions and the arrangements governing the Community's relations with the associated ACP States. It considers, however, that the Court does have jurisdiction for four reasons. First, the reference was made by a court or tribunal for the purposes of the national legal order in question and of Article 177, that is to say a court or tribunal deciding a dispute which arose within a part of the territory of a Member State covered by provisions of Community law. Secondly, the question raised concerns the interpretation of an act of the institutions of the Community. Thirdly, a declaration that the Court has no jurisdiction would partly nullify the assurance of being able to obtain a ruling of the Court on the interpretation of the Community provision in question. And the Court by its jurisdiction ensures the uniform application of Community law.
The French Government does not comment on the admissibility of the reference. It merely informs the Court, in limine, that the High Commissioner of the Republic in French Polynesia lodged an appeal on 24 July 1989 against the two judgments of the Tribunal administratif, Papeete.
2. The subject-matter of the question
In the view of the French Government, these cases do not raise any question of Community law. They are to be regarded as serious breaches of the rules relating governing the maintenance of public order and the residence of aliens in French Polynesia. French Polynesia is a non-European territory of the French Republic, associated with the Community as provided for in Articles 131 and 227(3) of the EEC Treaty. In the present state of Community law, it is clear from the provisions of the Treaty, read together with the 1986 decision and the relevant French law, that the making of rules applying to the residence of Community nationals in French Polynesia is exclusively a State prerogative.
The French authorities maintain that both plaintiffs entered the territory as tourists and are not entitled to take advantage of their presence there in order to engage in a commercial activity contrary to the local rules — which apply, moreover, in the same manner to French nationals from metropolitan France. Consequently, Article 176 of Decision 86/283 may not be relied upon.
Secondly, the French Government points out that Community law is not directly applicable in the overseas countries and territories, to which special arrangements for association apply. In particular, 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) was not made applicable to the overseas countries and territories associated with the Community; nor has any generalized right to freedom of movement and residence been put into practice for nationals of Member States in the overseas countries and territories, or for citizens of the overseas countries and territories in the Community.
Thirdly, and in the alternative, the French Government considers that Article 176 of Decision 86/283 may not be relied upon directly by the plaintiffs. It refers to the Court's judgments relating to the Agreements of Association with Greece and Turkey (Case 181/73 Haegeman v Belgium [1974] ECR 449; Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719) and to the criteria referred to in Case 41/74 Van Duyn v Home Office [1974] ECR 1337, at p. 1355, and argues that Article 176 imposes an obligation only as to the result to be achieved and, moreover, that it is conditional since it is subject to the limitation of reciprocity.
Consequently, in the French view, Article 176 does not preclude the authorities of the overseas countries and territories from regulating the right of establishment and the right to provide services, but merely requires them to observe the prohibition of discrimination between nationals of Member States.
Finally, with regard to freedom of movement for workers within the overseas countries and territories, the French Government refers to Article 135 of the Treaty, which provides that the matter is to be governed by agreements to be concluded subsequently with the unanimous approval of the Member States. It concludes that, even though the provisions of Article 48 of the Treaty and of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 (Official Journal, English Special Edition 1968 (II), p. 475) are directly applicable, the plaintiffs may not rely on them because they do not apply in the case of relationships of association with the overseas countries and territories. In the French Government's view, that conclusion is confirmed by Article 42(3) of Regulation No 1612/68, which provides:
For those reasons, the French Government proposes that the Court should give the following answer to the questions raised by the Tribunal administratif, Papeete:
In its observations, the United Kingdom agrees with the French authorities as regards the scope and applicability of Article 176. The United Kingdom also stresses that the provisions of Part Four of the Treaty and Council Decision 86/283 lack direct effect; referring to the criteria for direct effect set out by the Court in Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, it considers that the purpose of Part Four of the Treaty is not to establish a common market, nor even to contribute to the establishment of the common market. While the objective of the association is to further the interests of the inhabitants of the overseas countries and territories in order to lead them to development, the United Kingdom emphasizes that the direct effect of Community law rests upon the purpose of the Treaty to secure economic integration in a common market. It considers that the tendency has been to equate the treatment of the overseas countries and territories more and more with the position of the ACP States under the Lomé Convention. The basis for direct effect is therefore lacking.
In the United Kingdom's view, that conclusion is backed up by its observations on the inapplicability of Article 177 in the overseas countries and territories. Consequently, it emphasizes that it is incumbent upon an administering Member State to secure the due implementation in its overseas countries and territories of the provisions of Part Four of the Treaty and of Council Decision 86/283, as an obligation under the Treaty for the purposes of Article 169 of the Treaty.
Should the Court consider that it has jurisdiction, the United Kingdom would submit that Article 176 has the limited scope ascribed to it above, and that neither Part Four of the EEC Treaty nor Council Decision 86/283 has direct effect in the courts of French Polynesia.
The Commission agrees in its submissions with the two governments. With regard to the substantive scope of Article 176 of Decision 86/283, it considers that, in the overseas countries and territories, a right of residence may be claimed only for the purpose of engaging in an activity as a self-employed person, and that Article 176 cannot extend to decisions of any kind which the State having exclusive competence may take in matters of entry into and residence in the territory of aliens who are nationals of Member States.
As regards the direct effect of the provision in question, the Commission maintains that Article 176 imposes a clear obligation on the relevant authorities of the territories in question, but that that obligation is not unconditional, because it is subject to a requirement of reciprocity. The Commission points out that, even if it were possible to maintain that reciprocity is automatic once the conditions have been verified, there would still remain, in any event, the problem of the explicit limitation provided for in Article 176, which appears to leave it to each Member State to determine whether or not, for a given activity, it is able to provide the nondiscriminatory treatment referred to.
With regard to the two plaintiffs, the Commission adds that it does not appear that Mr Kaefer can be covered by Article 176, since there is nothing in the case-file to suggest that he is residing in French Polynesia for the purpose of engaging in an activity as a self-employed person or providing services. It points out that if Mr Procacci is not a national of a Member State he cannot claim a right of establishment — a fortiori in an overseas territory. If he does have Italian nationality, he may establish himself as a signwriter in French Polynesia only under the conditions which apply to that trade, and subject to the requirement of reciprocity. In any event, the Commission notes that grounds of public order were invoked for the deportation of Mr Procacci, that Community directives do not apply and that it is for the national court to determine whether the grounds for deportation are adequate.
It concludes that the Court might reply that Article 176 of Decision 86/283 of 30 June 1986 does not of itself create a legally enforceable right for nationals of Member States of the EEC to establish themselves in an overseas country or territory in order to engage in a given activity as a self-employed person.
1 Language of the case: French.