Opinion of Mr Advocate General Van Gerven delivered on 11 July 1991

1 Original language: Dutch.

2 Nederlands Staatsblad 1986, 252. This law came into force on 1 October 1986. For a brief summary see the Report for the Hearing, p. I-1030.

3 The WSF makes a distinction between a non-recoverable basic grant, awarded regardless of the financial situation of the students' parents, and supplementary finance, which usually consists of an interest-bearing loan. The plaintiff applied for both a grant and supplementary finance.

4 Article 3(1) of lhe Royal Decree of 22 September 1986 (Nederlands Staatsblad 1986, 477) provides, pursuant to Article 7 of the WSF, inter alia that: The following persons shall be treated as Netherlands nationals for the purposes of study finance pursuant to Chapters II and III of the law... c) persons... over 21 who have been authorized to reside in the Netherlands pursuant to Article 9 of the Vreemdelingenwet (Aliens' Law) Article 9 of the Vreemdelingenwet of 13 January 1965 {Nederlands Staatsblad 1965 40) sutes that: Foreigners in possession of a residence permit shall be allowed to stay in the Netherlands until the said permit expires.

5 OJ, English Special Edition 1968 (II), p. 475.

6 See, for example, the judgments in Case 39/86 Lair [1988] ECR 3161, paragraphs 19 to 24, and in Case 235/87 Mattami [1988] ECR 5589, paragraph 11.

7 The Netherlands government confirmed at the hearing that an on-call worker is not obliged to heed the employer's call for him to work.

8 See the order for reference, p. 8.

9 See, for example, the judgments in Case 75/63 Hoekstra (née Unger) [1964] ECR 177, Case 53/81 Levin [1982] ECR 1035, paragraph 11, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 16, and, more recently, in Case 344/87 fieöray [1989] 1621, paragraph 11.

10 See the judgments in Levin, paragraph 13, Lawrie-Blum, paragraph 16, and Bettray, paragraph 11, cited in footnote 8.

11 See judgments in Levin, paragraphs 16, 17 and 21, and Bettray, paragraph 13, cited in footnote 8, as well as the judgments in Case 139/85 Kemp/ [1986] ECR 1741, paragraph 14, Case 197/86 Brown [1988] ECR 3205, paragraph 21, and Case 196/87 Steymann [1988] ECR 6159, paragraph 13.

12 Persons wishing to pursue an activity (who, in the judgments in Levin and Bettray, are mentioned alongside persons pursuing an activity) include those moving to another Member State to accept offers of employment actually made (see Article 48(3) of the EEC Treaty) or to seek employment there (see judgment in Case 48/75 Royer [1976] ECK 497, and, more recently, in Case C-292/89 Antonissen [1991] ECR I-745). In the present case the plaintiff is not claiming that she came to the Netherlands for that reason. Be that as it may, in its judgment in Case 316/85 Lebon [1987] ECR 2811, paragraph 26, the Court limited the right to equal treatment enjoyed by persons moving to another Member State in search of employment to the right of access to employment, with the result that it does not cover the social and tax advantages referred to in Article 7(2) of Regulation (EEC) No 1612/68.

13 See the judgments in Lawrie-Blum, paragraph 17, and Bettray, paragraph 12, cited in footnote 8, and the judgment in Brown, paragraph 21, cited in footnote 10.

14 Judgment in Case 152/73 Sotgiu [1974] ECR 153, paragraph 5, and the judgments in Lawrie-Blum, paragraph 20, and Bettray, paragraph 16, cited in footnote 8.

15 In the judgments in Levin, paragraphs 16 and 17, and Lawne-Blum, paragraph 21, cited in footnote 8, and in the judgment in Kempf, paragraph 14, cited in footnote 10, the Court held that people employed only on a part-time basis or who receive remuneration below the guaranteed wage in the sector concerned may nevertheless be migrant workers within the meaning of Article 48 of the EEC Treaty and Regulation (EEC) No 1612/68, provided that the activity pursued is effective and genuine.

16 I am not referring here to the rights set out in Article 48(3)(a), (b) and (c), and Articles 1 to 6 of Regulation (EEC) No 1612/68. Those rights are in existence already prior to or on the conclusion of the contract. The present case concerns the social advantages referred to in Article 7(2) of Regulation (EEC) No 1612/68.

17 See footnotes 8 and 10.

18 The phrase for a certain period of time is clearly not used in the sense of for a stipulated period fixed in advance (as opposed to a non-stipulated period) but in the sense of for some period of time.

19 See paragraph 42 of the judgment cited in footnote 5.

20 Judgment in Case 157/84 Frascogna [1985] ECR 1739, paragraph 25.

21 See paragraph 43 of the judgment cited in footnote 5.

22 Blanpain R.: General Repon in Blanpain R. and Köhler E. (eds.): Legal ana Contractual Limitations to Working Time in the European Community Member States, Office for Official Publications of the EC, Luxembourg, 1988, p. 25.

23 With regard to this criterion, see paragraph 18 of the judgment in Lawrie-Blum cited in footnote 8. With regard to both criteria, also see point 12 of my Opinion in Case C-3/90 Bernini [1992] ECR I-1071

24 On this la point also see my Opinion cited in the previous footnote, point 12.

25 Köhler E.: Introduction in Blanpain R. and Köhler E. (eds.): op. cit.

26 Blanpain R.: General Repon, and Weiss M.: German in Blanpain R. and Köhler E. (eds.): op. át, pp. 59 and 223 respectively.

27 Cited in footnote 5.

28 Order for reference, p. 9, first paragraph, final sentence.

29 However, see also footnote 30.

30 Furthermore, it is generally acknowledged that there is a causal link between a low level of education and long-term unemployment.

31 If the third question were nevertheless linked to the acquisition of the status of worker (see footnote 28), I would share with the Commission the view that, given the aim of integration referred to, in that case, too, only the occupational activity pursued in the host Member State must be taken into account (but then all the activities pursued in that Member Sute, not just the most recent activit pursued there, given that it is not a matter here of determining the continuity between the activity previously pursued and the studies subsequendy undertaken).

32 Sec the judgments in Case 293/83 Gramer (1985) ECR 593, paragraph 25, and Case 24/86 Blaizot [1988] ECR 379, paragraph 24, as well as the judgments in Lair, paragraph 12, and Broom, paragraph 15, cited in footnotes 5 and 10 respectively.

33 Sec the judgments in Lair, paragraph 14, and Brown, paragraph 17, cited in footnotes 5 and 10 respectively.

34 Judgment in Royer cited in footnote 11, paragraphs 32 and 33. See also the judgment in Joined Cases 389/87 and 390/87 Echtcmach and Moritz [1989] ECR 723, paragraphs 24, 25 and 26.

35 As stated by Advocate General Sir Gordon Slynn in his Opinion in Case 197/86 Brawn [1988] ECR 3205, at p. 3230.

36 OJ 1990 L 180, p. 30. The directive — in respect of which proceedings are pending before the Court regarding its juridical basis (Case C-295/90 European Parliament v Council) — must be transposed into national law by 30 June 1992 at the latest. The obligation to grant a right of residence is imposed on Member Sutes in so far as a student who is a national of another Member Sute does not already enjoy that right under other provisions of Community law, and it also covers the members of the student's family (Article 1).

37 Further thereto — see the sixth recital in the preamble to the directive — the host Member Sute is not obliged under the directive to pay maintenance grants to students benefiting from the nght of residence (Article 3).

38 In its judgment in Echtemach and Montz, cited in footnote 33, the Court noted that the Netherlands student funding system is intended to cover very different costs, not only tne cost of access to education, but also maintenance costs and other costs incurred in connection with the course of studies (paragraph 32).