C-53/81

STAATSSECRETARIS VAN JUSTÍTIE [Secretary of State for Justice]

on the interpretation of Anicie 48 of the EEC Treaty and of certain provisions of Community directives and regulations on the free movement of persons within the Community,

THE COURT

composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart. A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges.

Advocate General: Sir Gordon Slynn Registrar: A. Van Houtte

gives the following

No decision was taken by the Staats- secretaris van Justitie on that application within the period prescribed by Netherlands law and so Mrs Levin I — Facts and written procedure appealed against the notional decision rejecting her application by a letter of 20 July 1979 to the Judicial Division of the Raad van State. 1. Mrs D. M. Levin, a British subject and the wife of a national of a non- member country, applied for a residence permit in the Netherlands on 13 January She claimed that she must be regarded as 1978. Her application was rejected on 20 a "favoured EEC citizen" within the March 1979 by decision of the head of meaning of the Netherlands Aliens the local Amsterdam police on the basis Order because she was the national of of the Netherlands law, in this case the another Member State and was [Netherlands] Aliens Order [Vreem- employed in the Netherlands. In any delingenbesluit], on the ground inter alia case, she and her husband had property that the grant of a residence permit was and income arising therefrom with which not in the public interest because the she was able to support herself. appellant had not been in work since the beginning of 1978 and therefore could not be regarded as a "favoured EEC citizen" within the meaning of the above-mentioned order. The Staatssecretaris van Justitie, on the other hand, submitted in this case that the appellant could not be regarded as a "favoured EEC citizen" since her employment did not provide sufficient By letter of 9 April 1979 the appellant means for her support, equal at least to applied to the Staatssecretaris van Justitie the minimum legal wage prevailing in the for the decision to be reconsidered Netherlands. Nor was the condition met, claiming inter alia that the fact that she which was to be inferred from had not pursued an occupation in the Netherlands law, that the EEC citizen Netherlands for a certain period did not must have the subjective will to pursue an of itself constitute a relevant argument occupation since the appellant took up for refusing her a residence permit since employment in the Netherlands in order she and her husband had sufficient to enable her husband, who is not a

" 1 . Should the concept of "favoured EEC citizen", which in the 3. Assuming that Question 1 is Netherlands legislation is" taken to answered in the affirmative, can the mean a national of a Member State right of such a worker to free as described in Article 1 of Directive admission into and establishment in 64/221/EEC of the Council of the the Member State in which he European Communities of 25 pursues or wishes to pursue an February 1964 and is used in that activity or provides or wishes to legislation to determine the category provide services to a limited extent of persons to whom Article 48 of the still be relied upon if it is Treaty establishing the European demonstrated or seems likely that his Economic Community, Regulation chief motive for residing in that (EEC) No 1612/68 óf 15 October Member State is for a purpose other 1968 and Directives 64/221/EEC of than the pursuit of an activity or 25 February 1964 and 68/360/EEC provision of services to a limited of 15 October 1968 adopted by the extent?" Council of the European Communi- ties in application of Article 48 apply, also be taken to mean a national of a Member State who in 2. The judgment making the reference the territory of another Member was lodged at the Court Registry on 11 State pursues an activity, whether March 1981. paid or not, as an employed person or provides services to such a limited extent that in so doing he earns Pursuant to Article 20 of the Protocol on income which is less than that which the Statute of the Court of Justice of in the last-mentioned Member State the EEC, written observations were is considered as the minimum submitted by D. M. Levin, represented necessary to enable him to support by W. J. van Bennekom of the himself? Amsterdam Bar, by the Netherlands Government, represented by F. Italianer, acting for the Ministry of Foreign 2. In the answer to Question 1, should Affairs, by the Danish Government, a distinction be drawn between, on represented by Laurids Mikaelsen, its the one hand, persons who apan Legal Adviser, by the French from or in addition to their income Government, represented by Thierry Le derived from limited employment Roy, acting for the Secretary General of have other income (for example the Inter-Departmental Committee for from property or from the Questions of European Economic

That thesis is also confirmed by a proposal for a Council directive on a II — Written observations right of residence for nationals of Member States in the territory of another Member State, under the terms of which nationals of Member Sutes are 1 (a) Mrs Levin submits with regard to to enjoy permanent right of residence in the first and second questions that Article other Member States provided that they 48 of the EEC Treaty covers not only can provide proof of adequate means of employed persons but also self-employed support. persons and employers. That is dear from Article 1 of Council Directive 64/221 of 25 February 1964 on the coordination of special measures The right of residence must therefore be concerning the movement and residence granted both to persons who derive from of foreign nationals which are justified on grounds of public policy, public their work at least pan of the minimum security or public health (Official income but also have sufficient Journal, English Special Edition 1963- independent means and to persons who 1964, p. 117). That article defines the do not have sufficient additional income persons to whom Article 48 of the but are content with an income which is Treaty applies. lower than the official minimum wage, provided that no call is made on public funds.

Community law does not exclude from the scope of Article 48 of the Treaty persons whose work does not provide (b) The appellant's reply to the third them with income which is at least equal question is that the subjective will to to the minimum income in the host pursue an occupation cannot be decisive country. since full recognition is shortly to be given to any form of residence. Moreover, in general, working is not an Such a restriction would be incompatible aim in itself but serves other aims which with the aim of the free movement of cannot be the subject of appraisal by the workers since it would place the persons authorities.

2. (a) The Netherlands Government Support for that argument is to be found points out that the first question asks in the following provisions of whether Anicie 48 provides freedom of Community law: subparagraphs (a) and movement for persons in general or (b) of Article 48 (3) of the Treaty- merely for workers who by performing provide for the right of workers to work in the fullest sense of the word accept offers of employment actually- contribute to the economic development made and to move freely within the of the Community and seek to improve territory of Member States "for this their own standard of living. purpose"; the first recital in the preamble to Regulation No 1612/68 acknowledges the right of workers to move freely within the Community "in order to The view must be taken by virtue of pursue activities as employed persons"; Anicie 48 (3) (c) of the Treaty that finally, Directive 64/221 applies under freedom of movement for workers the terms of Anicie 1 to any national of entails the right "to stay in a Member a Member State who resides in or travels State for the purpose of employment in to another Member State 'in order to accordance with the provisions governing pursue an activity as an employed or the employment of nationals of that self-employed person'. The words 'in State laid down by law, regulation or order to' appearing in those provisions administrative action". Those provisions place emphasis on the intention of the also take account of the Netherlands national concerned. legislation which guarantees a minimum wage to a worker in full-time employment. However, in order to determine the extent to which account must be taken of the intention of the person concerned, it Consequently, freedom of movement for is imponant to establish whether that workers entails the right of a worker to person is pursuing or will pursue an move within the Community in order to occupation. Where a worker pursues an pursue in one of the Member States an occupation enabling him to suppon activity which is full and complete in himself, there is no point in attaching both the social and economic spheres any significance to the question whether and which enables the worker at least to his main purpose in settling in a Member provide himself with means of support. State was to pursue employment or whether he really had other intentions. The situation is different where, as in this case, a national of a Member State (b) The distinction contained in the moves to another Member State in order second question is not relevant. to pursue an activity devoid of economic interest with the sole aim of thus being able to enjoy the advantages conferred upon persons to whom the provisions on freedom of movement for workers apply. (c) As far as the third question is concerned, the Netherlands Government maintains that the Community legislature had in mind primarily a migrant worker intending to settle in another Member 3. (a) The Danish Government points State in response to an actual offer of out with regard to the first and second employment. questions that the EEC Treaty is

concerned solely with regulating occupation only for a relatively limited economic activity in the Member States, period. as is clear from Article 2 of the Treaty. That fundamental limitation on the power of the Community was confirmed bv the Court in its judgment of 14 Julv The term migrant worker covers persons 1976 in Case 13/76 Dona [1976] ECŔ who acquire the means to provide for 1333, in which it held that "the practice their own needs and those of their of sport is subject to Community law family, whether they have employment only in so far as it constitutes an which is not merely sporadic or pursue economic activity within the meaning of some other activity. The term also Article 2 of the Treaty". implies that the persons concerned work a normal number of hours, which in Denmark is a minimum of 30 hours per week. Consequently, the right to freedom of movement is conferred only on those persons who play a role in the economic life of the Member States, whereas The Danish Government therefore persons who do not or have not pursued proposes that the first two questions be an occupation have under the answered as follows: Community rules applicable at present no right of residence in another Member State, even if they are able to provide for their personal needs in another way. "Any national of a Member State pursuing an activity of an economic nature as an employed or self-employed person falls within the scope of the That distinction, moreover, is at the root provisions of the Treaty, and in of the proposal for a Council directive particular the rules on freedom of on a right of residence for nationals of movement. So long as the Council has Member States in the territory of not laid down any specific criteria another Member State, which correctly enabling the respective categories of assumes that the existing legal measures employed or self-employed persons do- not guarantee the free movement of entitled to obtain a residence permit valid for five years to be defined, the persons not pursuing an occupation. Member States may themselves lay down certain minimum rules concerning the period of work and income relating to the pursuit of an occupation which a A citizen of the Community is therefore foreign national must satisfy in order to entitled to travel and stay three months be granted a residence permit. Such in another State of the Community with minimum rules must not have the effect a view to finding work there but has no of excluding foreign employed and self- right to receive the residence permit valid employed persons who for the sector in for five vears referred to in Article 6 of question work a normal number of hours Council'Directive No 68/360 of 15 or attain the normal level of income. On October 1968 on the abolition of the other hand, a State may refrain from restrictions on movement and residence taking into account any other sources of within the Community for workers of income which the person concerned may- Member States and their families have and his personal needs in terms of (Official Journal, English Special Edition living expenses." 1968 (II), p. 485), if he pursues an

4. (a) The French Government takes the view that the first question should be answered in the affirmative because it is However, the mere fact that a not permissible for a Member State in Community citizen does not fulfil certain which a national of another Member conditions concerning his means or does State works or comes to work either as not show that he is pursuing or intends an employed person or otherwise to to pursue an occupation in a Member impose upon him, by requiring an State cannot entitle that State to rely to income from such work which is at least his disadvantage on those provisions equal to the minimum wage, a set of rules or an administrative practice which is more restrictive than those which apply to nationals of that State. That is clear in particular from Article 3 (1) of 5. (a) The Commission commence* *nh Regulation No 1612/68 which makes no a review of the provisions of Community reference to any notion of income or law on the right of residence. It point* minimum wage as a condition of entry out that under Article 3 (1) of Directive into and residence in the Member States 68/360 the Member States are to allow for Community citizens. nationals of other Member States "to

LEVIN v STAATSSECRETARIS VAN JUSTITIE

A temporary residence permit is to be (b) The first question asks in substance issued to a worker who is employed for whether a national of a Member State, a period exceeding three months but not who'in the territory of another Member exceeding a year in the host State State undertakes work or provides (Article 6 (3) of the directive). services to such a limited extent that in so doing he earns an income which is less than that which in the last- mentioned Member State is regarded as the minimum necessary to enable him to support himself, may avail himself of the The Member States adopted an interpret- right of workers to freedom of ative declaration at the meeting of the movement and, more particularly, of the Council at which Regulation No right of residence referred to in Article 4 1612/68 and Directive 68/360 were of Directive 68/360. Although the adopted. Under the terms of that question raised concerns not only declaration, employed persons but also persons providing services and self-employed persons, the Commission's reply is confined to the right of workers to freedom of movement since this case "the persons referred to by Article 1 (of concerns an employed person. Directive 68/360), that is to say nationals of a Member State who move to another Member State in order to find employment, have a minimum period of three months in which to do so; if at the In the Commission's opinion the reply end of that period they have not found should be in the affirmative. That is clear employment, their stay in the territory of from Article 48 (3) (c) of the Treaty and that other State may be terminated. from Articles 1 (1) and 7 (1) of Regu- However, if during that period the lation No 1612/68, by virtue of which an above-mentioned persons become depen- EEC worker may not be treated dent on public support (social assistance) differently from national workers as far in that other State they may be requested as the pursuance of "employment" or an to leave its territory". "activity as an employed person" or

"any conditions of employment or "A national of a Member State, who in work" are concerned. the territory of another Member State undertakes employment to such a limited extent that in so doing he earns income which is less than that which in the last- That conclusion holds true both where mentioned Member State is regarded as the employer does not comply with the the minimum necessary to enable him to legislative provisions on the minimum support himself, may avail himself of the wage and where the failure to attain the right of workers to freedom of minimum wage level is attributable to the movement provided for in Article 48 of fact that the working hours are less than the EEC Treaty and implemented by those of normal employment in the Regulation No 1612/68 and Directives sector in question. In the former case, 68/360 and 64/221. In particular, the the Member State should encourage the right of residence referred to in Article 4 worker to enforce his right under civil of Directive 68/360 may not be refused law against the employer. In the latter to such a national." case, an EEC citizen is just as free as Netherlands nationals to have recourse to part-time work as long as he is actually employed. (c) The distinction contained in the second question is not relevant. Moreover, that thesis is consistent with the Community nature of the concept of "worker" as recognized by the Court in its judgment of 19 March 1964 in Case (d) As regards the third question, the 75/63 Hoekstra (née Unger) [1964] ECR Commission, whilst acknowledging that 177 because it is inconceivable that each the intention of the worker, a national of Member State should be able to modify another Member State, to seek and the meaning of that concept and to pursue an occupation in the host eliminate at will the protection afforded Member State does have a certain role to by the Treaty to certain categories of play in relation to freedom of movement, person by laying down minimum submits that that intention exists where incomes. an occupation is pursued even if the work is merely pan-time and produces earnings which are less than the minimum wage. Under Article 4 (3) (b) Finally, the acceptance in the territory of of Directive 68/360, prima facie proof of another Member State of part-time work that intention for the authorities of the providing an income which is lower than host Member State is the confirmation of the minimum wage constitutes for many· engagement from the employer. persons, particularly in a difficult economic situation, an improvement in their standard of living and social advancement, considering that they It would be impermissible and would be wholly unemployed in their inconsistent with the nature of the countries of origin. fundamental right which the free movement of workers entails to deprive of the benefits of free movement a The Commission therefore suggests that worker who clearly demonstrates his the Court should reply as follows to the intention to work by actually pursuing first question: an occupation, on the ground that his

2 The appellant in the main proceedings, Mrs Levin, of British nationality and the wife of a national of a non-member country, applied for a permit to reside in the Netherlands. The permit was refused, on the basis of Netherlands legislation, on the ground, amongst others, that Mrs Levin was not engaged in a gainful occupation in the Netherlands and therefore could not be described as a "favoured EEC citizin" within the meaning of that legislation.

JUDGMENT OF 23. 3. 1982 — CASE 53/81

3 Mrs Levin applied to the Staatssecretaris van Justitie [Secretary of State for Justice] for the decision to be reconsidered. Her application was rejected and she appealed to the Raad van State claiming that in the meantime she had taken up an activity as an employed person in the Netherlands and that, in any event, she and her husband had property and income more than sufficient to support themselves, even without pursuing such an activity.

« Since the Raad van State considered that the judgment to be given depended on the interpretation of Community law it referred the following three questions to the Court for a preliminary ruling:

LEVIN v STAATSSECRETARIS VAN JUSTITIE

3. Assuming that Question 1 is answered in the affirmative, can the right of such a worker to free admission into and establishment in the Member State in which he pursues or wishes to pursue an activity or provides or wishes to provide services to a limited extent still be relied upon if it is demonstrated or seems likely that his chief motive for residing in that Member State is for a purpose other than the pursuit of an activity or provision of services to a limited extent?"

5 Although these questions, as worded, are concerned not only with freedom of movement for workers but also with freedom of establishment and freedom to provide services, it is apparent from the particulars of the dispute in the main procceedings that the national court really has in mind only the issue of freedom of movement for workers. The answers to be given should therefore be confined to those aspects which have a bearing on that freedom.

First and s e c o n d q u e s t i o n s

6 In its first and second questions, which should be considered together, the national court is essentially asking whether the provisions of Community law relating to freedom of movement for workers also cover a national of a Member State whose activity as an employed person in the territory of another Member State provides him with an income less than the minimum required for subsistence within the meaning of the legislation of the second Member State. In particular the court asks whether those provisions cover such a person where he either supplements his income from his activity as an employed person with other income so as to arrive at that minimum or is content with means of support which fall below it.

io The Netherlands and Danish Governments have maintained that the provisions of Article 48 may only be relied upon by persons who receive a wage at least commensurate with the means of subsistence considered as necessary by the legislation of the Member State in which they work, or who work at least for the number of hours considered as usual in respect of full- time employment in the sector in question. In the absence of any provisions to that effect in Community legislation, it is suggested that it is necessary to have recourse to national criteria for the purpose of defining both the minimum wage and the minimum number of hours.

LEVIN v STAATSSECRETARIS VAN JUSTITIE

n That argument cannot, however, be accepted. As the Court has already stated in its judgment of 19 March 1964 in Case 75/63 Hoekstra (née Unger) [1964] ECR 1977 the terms "worker" and "activity as an employed person" may not be defined by reference to the national laws of the Member States but have a Community meaning. If that were not the case, the Community- rules on freedom of movement for workers would be frustrated, as the meaning of those terms could be fixed and modified unilaterally, without any control by the Community institutions, by national laws which would thus be able to exclude at will certain categories of persons from the benefit of the Treaty.

i2 Such would, in particular, be the case if the enjoyment of the rights conferred by the principle of freedom of movement for workers could be made subject to the criterion of what the legislation of the host State declares to be a minimum wage, so that the field of application ratione personae of the Community rules on this subject might vary from one Member State to another. The meaning and the scope of the terms "worker" and "activity as an employed person" should thus be clarified in the light of the principles of the legal order of the Community.

is An interpretation which reflects the full scope of these concepts is also in conformity with the objectives of the Treaty which include, according to Articles 2 and 3, the abolition, as between Member States, of obstacles to freedom of movement for persons, with the purpose inter alia of promoting throughout the Community a harmonious development of economic activities and a raising of the standard of living. Since pan-time employment, although it may provide an income lower than what is considered to be the minimum required for subsistence, constitutes for a large number of persons an effective means of improving their living conditions, the effectiveness of Community law would be impaired and the achievement of the objectives of the Treaty would be jeopardized if the enjoyment of rights conferred bv the principle of freedom of movement for workers were reserved solely to persons engaged in full-time employment and earning, as a result, a wage at least equivalent to the guaranteed minimum wage in the sector under consideration.

i6 It follows that the concepts of "worker" and "activity as an employed person" must be interpreted as meaning that the rules relating to freedom of movement for workers also concern persons who pursue or wish to pursue an activity as an employed person on a pan-time basis only and who, by virtue of that fact obtain or would obtain only remuneration lower than the minimum guaranteed remuneration in the sector under consideration. In this regard no distinction may be made between those who wish to make do with their income from such an activity and those who supplement that income with other income, whether the latter is derived from propertv or from the employment of a member of their family who accompanies them.

11 Under Article 48 (3) of the Treaty the right to move freely within the territory of the Member States is conferred upon workers for the "purpose" of accepting offers of employment actually made. By virtue of the same provision workers enjoy the right to stay in one of the Member States "for the purpose" of employment there. Moreover, it is stated in the preamble to Regulation (EEC) No 1612/68 that freedom of movement for workers entails the right of workers to move freely within the Community "in order to" pursue activities as employed persons, whilst Article 2 of Directive 68/360/EEC requires the Member States to grant workers the right to leave their territory "in order t o " take up activities as employed persons or to pursue them in the territory of another Member State.

2i However, these formulations merely give expression to the requirement, which is inherent in the very principle of freedom of movement for workers,

JUDGMENT OF 23. 3. 1982 — CASE 53/81

that the advantages which Community law confers in the name of that freedom may be relied upon only by persons who actually pursue or seriously wish to pursue activities as employed persons. They do not, however, mean that the enjoyment of this freedom may be made to depend upon the aims pursued by a national of a Member State in applying for entry upon and residence in the territory of another Member State, provided that he there pursues or wishes to pursue an activity which meets the criteria specified above, that is to say, an effective and genuine activity as an employed person.

T H E COURT,

in answer to the questions referred to it by the Judicial Division of the Raad van State of the Netherlands by interlocutory judgment of 28 November 1980, hereby rules:

1. The provisions of Community law relating to freedom of movement for workers also cover a national of a Member State who pursues, within the territory of another Member State, an activity as an employed person which yields an income lower than that which, in the latter State, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum, provided that he pursues an activity as an employed person which is effective and genuine.

2. The motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State provided that he pursues or wishes to pursue an effective and genuine activity.

Mertens de Wilmars Bosco Touffait Due Pescatore Mackenzie Stuart O'Keeffe Koopmans Everling Chloros Grévisse

Delivered in open court in Luxembourg on 23 March 1982.