Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The Netherlands College van Beroep Studiefinanciering (Study Finance Tribunal) has asked the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty on the interpretation of Articles 7 and 48 of the EEC Treaty as well as Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475). The questions were raised in an action brought by Ms V. J. M. Raulin, the plaintiff, against the Minister van Onderwijs en Wetenschappen (Minister for Education and Science), the defendant, concerning the entitlement of a student from another Member State to the award of Netherlands study finance.
The facts and procedure
2. The plaintiff, who is of French nationality, settled in the Netherlands at the end of 1985 without registering at the Aliens' Office and without a residence permit. On 1 August 1986 she began a fulltime course of studies (visual arts) at the Gerrit Rietveld Academie in Amsterdam. Between her arrival in the Netherlands and commencing her studies, more specifically from 5 to 21 March 1986, the plaintiff worked as a waitress for 12 days, five hours per day, under what is known as an oproepcontract (on-call contract). She did not officially apply for a residence permit until 11 December 1987 and it was issued to her on 9 March 1988 on the basis of the fact that she was living with her Dutch husband whom she had married on 16 October 1987.
3. On 5 December 1986 the plaintiff submitted, pursuant to the Wet op de Studiefinanciering (Law on Study Finance — WSF) of 24 April 1986, an application for study finance to the Minister van Onderwijs en Wetenschappen (the Minister) in connection with her studies at the Gerrit Rietveld Academic On 11 May 1987 this application was rejected for the period from October 1986 to December 1987 on the grounds that the plaintiff was not of Netherlands nationality and did not belong to the group of people treated as Netherlands nationals under Article 7 of the WSF. On 3 July 1987 the plaintiff lodged a formal objection with the same Minister against the aforementioned rejection of her application, and on 25 September 1987 the Minister rejected her objection, again on the ground that the plaintiff could not be included in the category of persons treated as Netherlands nationals. It was stressed in particular that the plaintiff did not have a residence permit for the period concerned (October 1986 to December 1987).
4. The plaintiff appealed to the College van Beroep Studiefinanciering against the aforementioned ministerial decision. It is in the course of those proceedings that the College (hereinafter referred to as the national court) has submitted the following questions to the Court for a preliminary ruling :
Entitlement to the award of study finance on the basis of status as a migrant worker
5. Article 7(2) of Regulation (EEC) No 1612/68 states that a national of a Member State who is working in another Member State shall enjoy, in the territory of the latter Member State, the same social and tax advantages as national workers. The Court has consistently held that study finance must be considered to be a social advantage within the meaning of that provision. In the present case, however, the question is whether the plaintiff can in actual fact be regarded as a migrant worker within the meaning of Article 48 of the EEC Treaty and, in particular, within the meaning of Regulation (EEC) No 1612/68. Did she ever possess this status (the first and second questions) and, if so, did she subsequently retain that status during her studies at the Gerrit Rietveld Academie (the third and fourth questions)?
6. As already mentioned, between her arrival in the Netherlands at the end of 1985 and the start of her studies on 1 August 1986, more specifically from 5 to 21 March 1986 inclusive, the plaintiff worked as a waitress for 12 days, five hours a day, that is to say a total of 60 hours. The work was performed under what is known as an on-call contract ( oproepcontrad), which the plaintiff concluded with Parkhotel Exploitatie Maatschappij BV for the period from 5 March to 3 November 1986. By its first question the national court wishes to know whether the nature of the activities of an on-call worker (oproepkracht) prevents such a person from being considered to be a worker within the meaning of Article 48 of the EEC Treaty.
7. The Court has held on many occasions that the concept of migrant worker has a specific Community meaning because otherwise national legislation would be able arbitrarily to exclude certain categories of persons from the scope of the EEC Treaty. Furthermore, the Court has always stressed that the concept cannot be interpreted restrictively, because it defines the scope of one of the fundamental freedoms guaranteed by the EEC Treaty. The Court has consistently held that a migrant worker includes anybody pursuing (or wishing to pursue) effective and genuine paid activity which is not on such a small scale as to be purely marginal and ancillary. Furthermore, the Court has held that the concept of worker must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. According to the case-law of the Court, the nature of the legal relationship between the employee and the employer is of no consequence as regards the status of worker.
8. In the light of the abovementioned case-law, I believe that the nature of a legal relationship created under an on-call contract does not preclude recognition of the status of worker if the activity performed by an on-call worker is carried out for another person, under that person's direction and in return for remuneration. The irregular and insecure nature of such employment is of no consequence in this respect, just as it is irrelevant that such work is often performed only part-time or involves remuneration below the guaranteed minimum wage in the sector concerned.
9. In the judgment in Lair, the Court (referring to the judgment in Frascogna) held that a Member State cannot unilaterally make the granting of the status of migrant worker conditional upon a certain period of occupational activity on its territory. In Lair the Court nevertheless added that abuses are not covered by Community provisions on the freedom of movement for workers and that abuse is involved if a person has entered a Member State for the sole purpose of enjoying, after a very short period of occupational activity, the benefit of the student assistance system.
10. Even apart from cases of abuse, work can be so marginal and ancillary that no employment relationship exists of such a nature as to confer the status of migrant worker. An employment relationship includes, in other words, an element of durability. This element of durability does not, however, necessarily have to be expressed by the duration of the work actually carried out, but can, in my view, also reside in the availability of the worker. It appears that one criterion of an employment relationship widely applied within the various Member States is that the time during which the worker is available to the employer, that is to say is obliged to perform work at the request of the latter, is decisive in defining what is to be considered as working time. But in this context, the worker's availability must be genuine and obligatory.
11. The question remains of the importance to be attached to the fact that a person such as the plaintiff has concluded an on-call contract, such contracts constituting one of the more flexible types of employment relationships which have evolved over the past decade. In some Member States, including Germany, they are covered by a special regulation. To my mind, an important factor is whether or not a worker is required to heed the employer's call to work. If he is so required, he has limited his freedom of movement for the duration of the contract and is at the disposal of the employer. Unless such obligatory availability is in itself purely marginal, I am inclined to consider obligatory availability to be an element which, combined with the work actually performed under the on-call contract, can confer the status of worker. This presupposes, of course, that the relationship is not a purely sham one (see point 9 above), which might be apparent from the fact inter alia that an on-call worker is rarely or never called on to work.
12. If the national court should nevertheless conclude that the plaintiff acquired, by the fact of her work as a waitress described above, the status of a migrant worker, the question arises whether she retained that status and still possesses it, given that she is pursuing a fulltime course at the Gerrit Rietveld Academie. That problem is referred to in the fourth question.
13. It is apparent from its comments in its order for reference that the national court wonders whether there must in all cases be a demonstrable link between the nature of the previous occupational activity and the studies subsequently undertaken. It points out that an affirmative answer to that question would be extremely disadvantageous for workers who stop their unskilled work in order to improve their situation on the employment market by undertaking vocational training, which — as I understand the comment — makes it possible for them to obtain another job quite different in nature.
14. I would first point out that the continuity required under the case-law of the Court between previous activity and subsequent studies must be interpreted in a reasonable manner, that is to say, not too literally, but not so broadly that the requirement loses all meaning. Studies allowing a worker to improve his situation in the sector of activity in which he works involve, in my opinion, a sufficient link with previous activity even if, on the basis of such studies, he is able to occupy a more senior or more specialized post within that same sector. Even on such a broad interpretation, it seems to me that, in the present case, the requirement of continuity is missing between the job of waitress and pursuing an arts course at an academy.
15. The question remains whether, when there has to be a demonstrable link between the studies undertaken and the occupational activity previously performed, account may be taken only of the most recent occupational activity pursued in the host Member State.
Right of residence and entitlement to the award of study finance pursuant to Article 7 of the EEC Treaty
16. The Court has consistently held that inequality of treatment of Community nationals on grounds of nationality constitutes discrimination prohibited by Article 7 if'it falls within the scope of the EEC Treaty, and that the conditions governing access to vocational training do indeed fall within that scope.
17. Given, as I have already said, that, according to the case-law of the Court, the conditions of access to vocational training fall within the scope of the EEC Treaty and that study finance, in so far as it is intended to cover enrolment fees or other costs pertaining to access to vocational training, forms part of such conditions of access, it is clear that any discrimination on grounds of nationality is prohibited in this context. The answer to the fifth question must therefore be that Article 7 of the EEC Treaty precludes entitlement to financing of enrolment fees or other costs relating to access to vocational training being made conditional on possession of a residence permit, because such a requirement applies only to students who are nationals of other Member States.
18. There is then the sixth question, the first part of which asks in essence whether the right of residence in the Member State in which the course of training is pursued (and for the duration thereof) also constitutes part of the conditions of access to vocational training. In my estimation the answer is yes. The case-law cited above shows that discrimination is prohibited not only with regard to the actual or substantive conditions of access (for example, as regards previous knowledge or certificates required for a specific course), but also as regards the financial conditions of access (in particular the enrolment or tuition fees charged: see the judgments in Gravier, paragraph 26, and Blaizot, paragraph 24) as well as the financial assistance granted to cover those financial conditions of access (see the judgments in Lair, paragraph 14, and Brown, paragraph 17). The underlying idea is therefore that, as regards application of the prohibition of discrimination, all measures affecting actual access to vocational training, because they permit or facilitate such access, fall within the scope of the prohibition. This is not the case, under the aforementioned case-law, for allowances covering maintenance costs (see also point 20 below) which, on my understanding of the case-law, do not have a sufficiently direct link with access to the course of study itself.
19. The answer to the first part of the sixth question should therefore be that, in principle, students from a Member State who wish to pursue vocational training in another Member State, and have fulfilled in that respect all the other access conditions (applying also to students who are nationals of that Member State), enjoy a right of residence for the duration of the course pursuant to Article 7 of the EEC Treaty which forbids any discrimination in any field falling within the scope of the EEC Treaty.
20. Finally, the third part of the sixth question concerns restrictive conditions which the authorities in the host Member State may attach to the right of residence (and to the corresponding residence permit). It follows from the above that a person's right of residence — pursuant to Article 7 of
21. The Netherlands study finance system makes no distinction between an allowance for the cost of access to the course and an allowance for maintenance costs. The seventh question from the national court relates to this.
22. I therefore propose that the Court reply in the following manner to the questions submitted by the national court:
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).