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

1 Original language: Dutch.

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

3 Netherlands Staatsblad 1986, p. 252. The Law entered into force on 1 October 1986.

4 Architecture at the University of Naples does now fall within the terms of the Law on Study Finance.

5 Case C-308/89 Di Leo [1990] ECR I-4185.

6 Judgment in Case 244/80 Foglia v Novelk [1981] ECR 3045, paragraph 18.

7 Judgment in Case 338/85 Pardini v Ministero del Commercio con l'Estero [1988] ECR 2041, paragraph 8; see also the decision of the Court in Case C-286/88 Falciola [1990] ECR I-191, paragraph 7, and also the judgment in Foglia v Novello cited above in footnote 5, paragraphs 14 to 15.

8 Judgment in Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 6; see also the judgment of 19 December 1968 in Case 13/68 Salgoil [1968] ECR 453.

9 Cf. paragraph 9 of the judgment in Pardini v Ministero del Commercio con Vfetero, cited above in footnote 6.

10 See paragraph 6 of the judgment in Salonia v Poidomani and Giglio, cited above in footnote 7, and paragraph 8 of the Falciola decision cited above in footnote 6.

11 See e. g. the judgment in Case 39/86 Lair v Universität von Hannaver [1988] ECR 3161, paragraphs 19 to 24 and, specifically in regard to study finance for studies pursued abroad, the judgment of 27 September 1988 in Case 235/87 Mattateci v Communauté Française of Belgium [1988] ECR 5589, paragraph 11.

12 Judgments in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1053, paragraphs 16, 17 and 21; in Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraph 14; Case 197/86 Brown v Secretary of Stau for Scotland [1988] ECR 3205, paragraph 21; Case 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621, paragraph 13 and Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159, paragraph 13; see also my Opinion delivered m Case C-357/89 Raulin [1992] ECR I-1027, at p. I-1040, at paragraph 7.

13 See the judgment in Case 66/85 Lawrie-Blum v Land Baden Württemberg [1986] ECR 2121, paragraph 17, and the Bettray and Brown v Secretary of State judgments cited above in footnote 11, at paragraphs 12 and 21 respectively.

14 The Lawńe-Blum judgment (cited in footnote 12) involved a preparatory period which formed part of teacher training and consisted m the giving of 11 hours lessons per week. At paragraph 19 of that judgment the Court stated that: the fact that teachers' preparatory service, like apprenticeships in other occupations, may be regarded as practical preparation directly related to the actual pursuit of the occupation in point is not a bar to the application of Article 48(1) if the service is performed under the conditions of an activity as an employed person.

15 The Brown judgment (cited in footnote 11) concerned activity as an employed person described in the order for reference as pre-university industrial training (paragraph 3). Nevertheless, tlie Court decided that, by virtue of this activity which constituted genuine and effective salaried employment, Brown had acquired the status of migrant worker (paragraphs 20 to 23).

16 Cited above in footnote 11.

17 See also the Opinion of Mr Advocate General Jacobs of 8 March 1989, at p. 1637.

18 In such a case, where the training period forms part of a course of studies, the trainee should be regarded as a migrant student (with the rights attached to that status) rather than as a migrant worker.

19 In the Brown case (cited above in footnote 11) a period of 8 months was considered sufficiently long.

20 I infer that from Advocate General Slynn's Opinion in which he noted that Sylvie Lair was in receipt of unemployment benefit (at p. 3179 of the Opinion).

21 In its observations to the Court the Commission, rightly, in my view, pointed out that in the present case only a short period of time expired between employment and the commencement of the relevant studies, namely five months, which then in part coincided with the university vacation.

22 In paragraphs 14 and 15 of that judgment (see footnote 4 above) the Court borrowed arguments from its Matteuci judgment (see footnote 10) given on Article 7(2) in coming in paragraph 16 to its conclusion in connection with Article 12.

23 See paragraphs 5 and 6 above.

24 The Di Leo judgment (see footnote 4) would otherwise only be relevant to the children of migrant workers residing in a border area who during their studies abroad reside in the host Member State. That was not the case of Carmina di Leo herself.

25 See the judgment in Case 13/73 Angenieux v Hakenberg [1973] ECR 935, paragraphs 28 to 32 and paragraph 3 of the operative provision; see for example also the recent judgment in Case C-216/89 Reibold v Bundesanstalt für Arbeit [1990] ECR I-4613.

26 See the Reibold judgment already mentioned above.

27 In the judgment in Joined Cases 389 and 390/87 Echtemach and Mońtz v Minister for Education and Science [1989] ECR 723 it was, however, accepted that a student is resident in the Member State in which he is pursuing his studies, although the members of his family had returned to live in their Member State of origin. However, in that case it was a decisive factor that the student had always resided with the members of his family in the host country (before their return to their country of origin) and studied there and, after accompanying his family, had come back in order to continue his studies, which was not possible in his country of origin (paragraph 23).

28 Sec for example the judgment in Case 94/84 ONEM v Deak [1985] ECR 1873, paragraph 21.

29 In paragraph 15 of that judgment it was pointed out that the spedai unemployment benefits are made available to young persons seeking work on the basis of their own situation and not by reason of the fact that they are members of a worker's family pursuant to Regulation (EEC) No 1408/71.

30 Judgment in Case 316/85 Centre public d'aide social de Courcelles v Lebon [1987] ECR 2811, paragraph 13.