Summary
Parties
Grounds
Decision on costs
Operative part
Keywords

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1 . Preliminary rulings - Reference to the Court - National court within the meaning of Article 177 of the Treaty - Court whose jurisdiction covers an overseas country or territory

( EEC Treaty, Art . 177 )

2 . Association of overseas countries and territories - Right of nationals of other Member States to enter and reside in an overseas country or territory on a non-discriminatory basis - Application confined to the field of freedom of establishment and freedom to provide services

( Council Decision 86/283, Art . 176 )

3 . Association of overseas countries and territories - Exercise of freedom of establishment and freedom to provide services by nationals of other Member States - Prohibition of discrimination - Direct effect - Conditions

( Council Decision 86/283, Art . 176 )

Summary

1 . As a court or tribunal of a Member State, a court whose jurisdiction covers an overseas country or territory associated with the Community may request a preliminary ruling in accordance with the procedure laid down in Article 177 of the Treaty .

2 . 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, under Article 176 of Decision 86/283, 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 that article . 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 .

3 . The prohibition of discrimination laid down by Article 176 of 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 .

Parties

In Joined Cases C-100/89 and C-101/89,

REFERENCES to the Court under Article 177 of the EEC Treaty by the Tribunal administratif ( Administrative Court ), Papeete, Territory of French Polynesia, for a preliminary ruling in the proceedings pending before that court between

Peter Kaefer

Andréa Procacci

and

French State,

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 Commun ity ( Official Journal 1986 L 175, p . 1 ) in the light of Articles 132(5 ) and 135 of the EEC Treaty,

THE COURT,

composed of : G . F . Mancini, President of Chamber acting for the President of the Court, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias and M . Díez de Velasco ( Presidents of Chambers ), Sir Gordon Slynn, C . N . Kakouris, R . Joliet, F . A . Schockweiler, F . Grévisse, and M . Zuleeg, Judges,

Advocate General : J . Mischo

Registrar : D . Louterman, Principal Administrator,

after considering the observations submitted on behalf of

the United Kingdom, by J . E . Collins, acting as Agent,

the Government of the French Republic, 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 Commission of the European Communities, by H . P . Hartvig and E . Lasnet, members of its Legal Department, acting as Agents,

having regard to the Report for the Hearing,

after hearing oral argument from the United Kingdom, represented by M . Wyatt, acting as Agent, from the Government of the French Republic, represented by Edwige Belliard, Deputy Director for Legal Affairs in the Ministry of Foreign Affairs, and from the Commission, represented by E . Lasnet, at the hearing on 14 March 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 17 May 1990,

gives the following

Judgment

Grounds

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