Opinion of Mr Advocate General Lenz
Mr President,
Members of the Court,
1. The case before us today concerns the question whether the British companion of a British worker employed in the Netherlands can claim to be entitled to reside in the Netherlands under Community law in conjunction with the Netherlands policy on aliens, set out in the 1982 Vreemdelingencirculaire [Circular on Aliens].
2. In November 1981 Mr W., an unmarried British national, came to the Netherlands to take up a temporary post with a subsidiary of a British undertaking. As a national of another EEC Member State (an EEC national) he was issued a residence permit in February 1982 which was valid until 5 November 1986. With him came his companion, the respondent in the main proceedings, also a British national and unmarried, with whom he had a stable relationship of some five years' standing. On 22 January 1982 she reported to the Netherlands authorities responsible for dealing with aliens, giving her residence as that of Mr W., and said that she was looking for work.
3. Since she was unable to find work, she applied on 24 March 1982 for a residence permit as Mr W."s companion. Although the stability of the relationship was not questioned, the application was rejected in October 1982 on the basis of Netherlands policy regarding aliens. Miss Reed applied for the review of that decision, and when that application was dismissed in January 1983 she brought the matter before the Raad van State (where it is apparently still pending).
4. Since her application for a review of the authorities' decision had no suspensory effect, the respondent also applied to the President of the Rechtbank, The Hague, for an order that any measures for her deportation should remain in abeyance until such time as the issue of her residence permit should be resolved. That application was granted in December 1982 on the basis of Article 10 of Regulation No 1612/68 on freedom of movement for workers within the Community (Official Journal, English Special Edition, 1968 (II), p.475), under which inter alia the spouse of a worker who is a national of one Member State and is employed in the territory of another Member State is entiled to take up residence with him there. The judge held that provision to be applicable on the basis that, in view of modern developments, companions in the sense outlined above should be treated as spouses.
5. The Netherlands State appealed against that decision to the Gerechtshof in The Hague. In the summer of 1983, while those proceedings were still pending, it appears that Mr W. and the respondent returned to the United Kingdom without the intention of returning to the Netherlands. In any event, in November 1983 the Gerechtshof delivered a judgment upholding, in the result, the decision of the President of the Rechtbank. The judgment of the Gerechtshof was based on the Netherlands policy regarding aliens, summarized above, and the principle to be drawn from Article 7 and Article 48 (2) of the EEC Treaty to the effect that workers from Member States may not be discriminated against on grounds of nationality. The Gerechtshof held that as a result the companion of a worker from another Member State had the same right of residence as the companion of a Dutch worker.
6. The Netherlands State brought a further appeal to the Hoge Raad der Nederlanden. It argued that the Gerechtshof had applied Community law incorrectly: it had not taken into account the fact that not only the partners of Dutch persons but also the partners of other persons with an unrestricted right of residence in the Netherlands have a right to reside there. The distinction thus drawn is not between partners of Dutch persons and partners of workers from other Member States, but between partners of persons who may remain in the Netherlands indefinitely and partners of persons whose right to reside in the Netherlands is restricted in time. The Netherlands policy on aliens could not, therefore, be said to discriminate on the basis of nationality.
7. The proceedings raised questions of Community law, regardless of whether the correct interpretation of the law was that favoured by the Gerechtshof or, should that prove to be untenable, that adopted by the Rechtbank. By an order of 22 February 1985 it therefore stayed the proceedings and referred the following questions for a preliminary ruling under Article 177 of the EEC Treaty:
I — I should like first of all to make the following preliminary remarks.
My views on the matter are as follows :
I — I should like first of all to make the following preliminary remarks.
1. The first concerns the question whether in the main proceedings there is in fact any need for clarification of the problems of Community law raised.
2. It is also possible to argue that the examination of the questions posed might be made unnecessary by clarification of a point of Community law not raised in those questions.
II — The questions referred
1. Questions 1 and 2 (which may be dealt with together)
The central issue here is whether, assuming that workers from other Member States are not in fact covered by the second indent of Paragraph 3.1. of the Vreemdelingencirculaire, they must, in accordance with the principle of equal treatment, be treated in the same way as Dutch workers in this regard
The Commission would answer in the affirmative. In its view the discrimination practised in the Netherlands is not compatible with Articles 7 and 48 of the EEC Treaty; the principle of freedom of movement requires that workers from other Member States should be able to bring their companions with them. At the hearing the respondent's representative expressed the same view. The Netherlands Government, on the other hand, argues essentially that freedom of movement is not simply a product of the application of the principle of equal treatment but presupposes independent rights. The principle of equal treatment for workers does not apply in all respects (for instance, with regard to voting rights or the education of the children of migrant workers in their native language, even though freedom of movement could be impeded as a result). In particular, it does not apply with regard to the right of residence of foreign workers and persons associated with them. The Treaty and Community secondary legislation provide for independent rights in that respect, and when Regulation No 1612/68 speaks of a right of admission for workers' families it must be assumed that that is intended to create an exhaustive right and therefore does not apply to partners who are not mentioned.
2. Question 3
The third question concerns the interpretation of Article 10 of Regulation No 1612/68, which is worded as follows:
On this point the Netherlands Government and the Commission are for the most part in agreement, since they both take the view that the word spouse as used in that provision does not include a partner such as the respondent in the main proceedings. At the hearing Counsel for the respondent, on the other hand, argued in favour of a broad interpretation, based in particular on the point that people who simply live together nowadays would at the time when Regulation No 1612/68 was adopted in all likelihood have chosen to be legally wed. To ignore that when interpreting the right of accompaniment provided for in Article 10 of Regulation No 1612/68 would be to restrict freedom of movement, and the principle would thus have a more limited application today than it had a number of years ago.
C — In view of all the foregoing I propose that the Court should reply in the following manner to the questions raised by the Hoge Raad:
1 Translated from the German.
2 Judgment of 8 April 1976 in Case 48/75 ¡cm Noil Rover [1976] ECR 497.
3 Judgment of 12 February 1974 in Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153.
4 Judgment of 14 July 1977 in Case 8/77 Concetta Sagulo, Gennaro Brenca ani Addelmadjid Bakbouche [1977] ECR 1495.
5 Judgment of 28 June 1978 in Cise 1/78 Patrick Christopher Kenny y Insurance Officer [1978] ECR 1489.
6 Judgment of 27 October 1982 in Joined Cases 35 and 36/82 Elestina Esselina Christina Morion v State of the Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreetndetinjenwet; Sewradjie Jhanjan v Stau of the Netherlands [1982] ECR 3723.
7 Judgment of 28 June 1984 in Case 180/83 Hans Moser v Land Baden-Württemberg [1984] ECR 2539.
8 Judgment of 15 October 1969 in Case 15/69 Württembergische Milchverwertung Südmilch AG v Salvatore Ugliola [1969] ECR 363.
9 Judgment of 13 December 1972 in Case 44/72 Fitter Marsman v M. Rosskamp [1972] ECR 1243.
10 Judgment of 12 February 1974 in Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153.
11 Judgment of 7 July 1976 in Case 118/75 Lynne Watson and Alessandro Belmann [1976] ECR 1185.
12 This title is missing in the original text of Regulation No 1612/68 in the original languages (Official Journal L 257 of 19.10.1968, p. 8). It was added by a corrigendum published in Official Journal L 295 of 7.12.1968, p. 12.
13 Judgment of 12 February 1974 in Case 152/73 Sotfiu v Deutsche Bundespost [1974] ECR 153.
14 Judgment of 30 September 1975 in Case 32/75 Anita Cristini v Société nationale des chemins de fer français [1975] ECR 1085.
15 Judgment of 12 July 1984 in Case 261/83 Carmela Castelli v Office national des pensions pour travailleurs salariés [1984] ECR 3199.
16 Judgment of 27 March 1985 in Case 122/84 Kenneth Scrivner and Carol Cole v Centre public d'aide sociale de chastre [1985] ECR 1027.
17 Judgment of 11 July 1985 in Case 137/84 Ministère public v Mutsch [1985] ECR 2681.
18 Judgment of 13 July 1983 in Case 152/82, Sandro Forcheri and his wife Marisa Forchen (née Marino) v Belgian State and Asbl Institut supérieur de sciences humaines appliquées — teole ouvrière supérieure [1983] ECR 2323.
19 Judgment of 13 February 1985 in Case 267/83 Aissatou Diatta v Land Berlin [1985] ECR 567.
20 Judgment of 19 March 1964 in Case 75/63 Mrs M. K. H. Hoekstra (née Unger) v Bestuur der Bedrijsvereniging voor Detailhandel en Ambachten [1964] ECR 177.
21 Judgment of 23 March 1982 in Case 53/81 D. M. Levin v Staatssecretaris van Justitie [1982] ECR 1035.
22 Judgment of 13 February 1985 in Case 267/83 Aissatou Diatta v land Berlin [1985] ECR 567.