C-35/82

JUDGMENT OF 27. 10. 1982 — JOINED CASES 35 AND 36/82

require proceedings to be instituted situations governed by Community on the substance of the case even law. before the courts or tribunals of It follows that Community law does another jurisdictional system and that not prohibit a Member State from during such proceedings any question refusing to allow a relative, as of Community law provisionally referred to in Article 10 of Regulation decided in the summary proceedings No 1612/68 of the Council, of a may be re-examined and be the worker employed within the territory subject of a reference to the Court of that State who has never exercised under Article 177. the right to freedom of movement 2. The Treaty provisions on freedom of within the Community to enter or movement for workers and the rules reside within its territory if that adopted to implement them cannot be worker has the nationality of that applied to cases which have no factor State and the relative the nationality linking them with any of the of a non-member country.

In Joined Cases 35 and 36 / 82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hoge Raad der Nederlanden [Supreme Court of the Netherlands ] for a pre­ liminary ruling in the interlocutory proceedings pending before that court between

ELESTINA ESSELINA CHRISTINA MORSON

and

MORSON and JHANJAN v STATE OF THE NETHERLANDS

on the interpretation of the third paragraph of Article 177 of the EEC Treaty and Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Com­ munity (Official Journal, English Special Edition 1968 (II), p. 475),

THE COURT

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

Advocate General: Sir Gordon Slynn Registrar: H. A. Rühl, Principal Administrator

gives the following

refuse to give such applications sus­ applicants then appealed on a point of pensory effect in which case an inter­ law to the Hoge Raad, which, by locutory application may be made to judgments of 15 January 1982, stayed the court or judge ordinarily having the proceedings and pursuant to Article jurisdiction which, in this case, was the 177 of the EEC Treaty referred to the President of the Arrondissementsrecht­ Court the following questions which are bank [District Court]. The relevant the same in both cases : interlocutory proceedings are governed by Articles 289 to 297 of the Wetboek van Burgerlijke Rechtsvordering [Code of Civil Procedure], Article 292 of which provides that "provisionally enforceable " 1 . On an application for an interlocu­ decisions shall be without prejudice to tory injunction, is the Hoge Raad the main proceedings". obliged, pursuant to the third paragraph of Article 177 of the Treaty establishing the European Economic Community, when a The applicants adopted that means of question of interpretation within the legal redress by applying for an interlocu­ meaning of the first paragraph of tory injunction restraining the State of that article is raised in an appeal on the Netherlands from deporting them at a point of law, to refer the matter to least until their applications for review the Court of Justice for a pre­ had been decided at the highest instance liminary ruling, having regard to the or the Court of Justice had given a pre­ fact that a judgment of the Hoge liminary ruling on certain questions. Raad delivered on an application for an interlocutory injunction is not binding on a court which later has to try the case on its merits? If this In their interlocutory applications they question cannot be answered claimed that the refusal to grant them generally in the negative or affirm­ residence permits was contrary to Article ative, what are the circumstances 10 of Regulation No 1612/68 of the which determine whether such an Council of 15 October 1968 on freedom obligation should be deemed to of movement for workers within the exist? Community and the prohibition of discrimination contained in Article 7 of the Treaty. Under Article 10 (1) of that regulation certain members of the family of a worker, including dependent 2. Does Article 10 of Regulation (EEC) relatives in the ascending line, have the No 1612/68 of the Council of 15 right, irrespective of their nationality, to October 1968 on freedom of instai themselves with a worker who is a movement for workers within the national of one Member State and who Community, whether or not in is employed in the territory af another conjunction with other provisions of Member State. Community law, prevent a Member State from refusing to admit a relative mentioned in Article 10 (1) of the regulation, of a worker The President of the Arrondissements­ employed within the territory of that rechtbank dismissed their interlocutory Member State, where the relative applications and the Gerechtshof wishes to take up residence there Amsterdam upheld his decisions; the with that worker, if the worker has

the nationality of the State in which that the first question calls for a negative he works and the relative has answer. They refer in this regard to the another nationality?" judgment of the Court of 24 May 1977 in Case 107/76 Hoffmann-La Roche v Centrafarm [1977] ECR 957 in which the 2. The judgments referring the Court held that: questions to the Court for a preliminary ruling were registered at the Court on 21 January 1982. "The third paragraph of Article 177 of By order dated 17 February 1982 the the EEC Treaty must be interpreted as Court decided to join the cases for the meaning that a national court or tribunal purposes of the procedure and judgment. is not required to refer to the Court a question of interpretation or of validity In accordance with Article 20 of the mentioned in that article when the Protocol on the Statute of the Court of question is raised in interlocutory Justice of the European Economic proceedings for an interim order Community written observations were (einstweilige Verfügung), even where no lodged by the Netherlands Government, judicial remedy is available against the represented by F. Italianer, acting for the decision to be taken in the context of Ministry of Foreign Affairs, by the those proceedings, provided that each of United Kingdom, represented by J. D. the parties is entitled to institute Howes, of the Treasury Solicitor's proceedings or to require proceedings to Department, and by the Commission of be instituted on the substance of the case the European Communities, represented and that during such proceedings the by its Legal Adviser, J. Amphoux, acting question provisionally decided in the as Agent, assisted by F. Herbert, summary proceedings may be re­ Advocate, Brussels. examined and may be the subject of a reference to the Court under Article The applicants in the main proceedings, 177." Mrs Morson and Mrs Jhanjan, simply referred to an article by K. J. Mortelmans entitled "Omgekeerde Discriminatie in het Gemeenschapsrecht" [Reverse discrimination in Community The Netherlands Government explains law — Sociaal Economische Wetgeving that the court having jurisdiction to 1979 No 10/11, p. 654 et seq.] and decide whether the Secretary of State may dismiss an application for a adopted its content. residence permit is in the last instance On hearing the report of the Judge- the Raad van State [State Council] Rapporteur and the views of the whereas a refusal to give suspensory Advocate General the Court decided to effect to an application for review may open the oral procedure without any be challenged in an interlocutory preparatory inquiry. application to the court ordinarily having jurisdiction. In the Netherlands inter­ locutory proceedings (kort geding) are summary, informal proceedings. Their II — Written observations chief feature is that the decision of the court hearing the interlocutory application constitutes a provisional or Firsi question interim measure, that is to say the 1. The Governments of the Netherlands proceedings are not designed to provide and the United Kingdom take the view a definitive settlement of the dispute.

In particular, questions of Community law provisionally decided in the summary As regards that course the Commission proceedings may be re-examined in the explains that if a request for review is main proceedings and may be the subject refused the Netherlands Law on Aliens of a reference to the Court under Article allows an appeal to be made to the Raad 177. In that context the Raad van State van State provided however that, if the is bound to make a reference to the refusal was in accordance with the Court if there is doubt as to how a opinion of the Aliens Commission, the provision of Community law should be alien concerned, not being a favoured interpreted. national of a Member State, has had his main residence in the Netherlands for one year before the date of the decision. If he has not no appeal lies. In the In conclusion the Netherlands present cases the conditions are fulfilled Government considers that in the present so appeal may be made to the Raad van ___ cases the court hearing the interlocutory State. application at last instance is not required to make a reference to the Court of Justice because the questions of interpretation of Community law will However, a reference to the Court still arise during the proceedings on the would be required if the person substance of the cases. concerned, not being a favoured national of a Member State, was not entitled to bring such an appeal. A reference would also be required if the subject-matter of the interlocutory proceedings were a 2. The Commission feels that the right conferred on the applicant by answer to the first question needs to be Community law and that right would be carefully balanced in view of the irreparably damaged if the interlocutory

Nationals of Member States who move as workers within the Community to "The third paragraph of Article 177 of exercise their right to pursue an the EEC Treaty must be considered as occupation elsewhere in the Community meaning that a national court or tribunal are subject to special Community against whose decisions there is no provisions which prevail over general appeal under national law is nevertheless provisions of national legislation on not required to submit to the Court of aliens. However, the scope of those Justice a question as to the interpretation Community provisions is restricted to or validity of Community law within the nationals of Member States pursuing meaning of that article where that activities as employed or self-employed question is raised in interlocutory persons and moving from one Member proceedings provided that it is State to another for that purpose. As established that both parties may appeal long as no frontiers are crossed within or require proceedings to be instituted the Community national legislation on on the substance of the case in which the the admission and residence of aliens question provisionally decided in the continues to apply in full. To that extent summary proceedings may be re­ any differences in the legal situation of examined and referred to the Court nationals of the various Member States under Article 177." cannot be considered to be discrimi­ nation or "reverse" discrimination.

Second question The Netherlands Government adds that Article 10 of Regulation No 1612/68 covers the establishment of a worker only in a Member State other than that 1. The Governments of the Netherlands of which he is a national. The more and the United Kingdom submit that in favourable legal situation enjoyed by the situations of this kind Community law nationals of other Member States is a

The United Kingdom emphasizes that the purpose of the provisions of Article 48 et seq. of the EEC Treaty and of the directives and regulations issued to 2. The Commission considers first the implement them is simply to encourage question of "reverse" discrimination. The and facilitate movement of workers Court's case-law on this matter rests on between Member States of the the following principles : Community. More specifically, Regu­ lation No 1612/68 is intended to ensure that persons who have exercised the right to take up an activity as an employed (a) The free movement of persons, person in the territory of another which is considered to be a Member State are placed in the same fundamental feature of Community situation as the nationals of the Member law, cannot be fully attained if a State to which they have gone. That Member State may deprive nationals, emerges in particular from Article 10 of who have exercised the existing right that regulation which confers on certain to freedom of movement, of the members of the worker's family "the application of the provisions of right to instal themselves with a worker Community law. who is a national of one Member State and who is employed in the territory of another Member State". (b) A Member State may however legitimately prevent its nationals from attempting to abuse freedom of Underlying those provisions is the movement in order to avoid the assumption that a worker cannot exercise application of national laws. his right to freedom of movement if his family cannot join him. Where the worker remains in his own State, however, that is a matter quite outside (c) The existence and the degree of any the scope of Community law. discrimination may be determined within the scope of the specific articles of the Treaty only to the extent to which they give specific The United Kingdom adds that Article 7 expression to the general prohibition of the Treaty has no relevance in this contained in Article 7 of the Treaty.

Ill — Oral procedure However, that argument should be qualified in the sense that the prohibition of discrimination applies only to the At the sitting on 15 September 1982 the situations and persons covered by the following presented oral argument and principle of the free movement of replied to the Court's questions: B. R. persons, as defined in Article 48 of the Angad-Gaur of the Bar of The Hague, Treaty. That provision covers only for the applicants in the main workers who move from one Member proceedings, Mrs Morson and Mrs State to another for occupational Jhanjan; J. W. de Zwaan, acting as reasons. The distinction as to the Agent assisted by L. A. Geelhoed, "migration" of a worker may indeed appearing as an expert witness, for involve distortion in so far as a the Netherlands Government; and Netherlands national employed in J. Amphoux, acting as Agent assisted by another Member State may be joined by F. Herbert of the Brussels Bar, for his family and may return with them to the Commission of the European the Netherlands to seek or take up Communities. employment there. However, the resultant problems may be resolved only in the context of a generalized right of residence attaching to the status of citizen of the European Economic The Advocate General delivered his Community. opinion at the sitting on 6 October 1982.

JUDGMENT OF 27. 10. 1982 — JOINED CASES 35 AND 36/82

Decision

1 By judgments dated 15 January 1982 which were received at the Court on 21 January 1982 the Hoge Raad der Nederlanden [Supreme Court of the Netherlands] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions, which are the same in both joined cases, as to the interpretation of, first, the third paragraph of Article 177 of the EEC Treaty and, secondly, Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475).

MORSON and JHANJAN v STATE OF THE NETHERLANDS

Member State. They also relied on the prohibition of discrimination embodied in Articles 7 and 48 of the EEC Treaty.

5 The Hoge Raad, with which Mrs Morson and Mrs Jhanjan lodged appeals on a point of law in the interlocutory proceedings, considered that the decision to be given depended on the interpretation of provisions of Community law and submitted the following questions for a preliminary ruling:

" 1 . On an application for an interlocutory injunction, is the Hoge Raad obliged, pursuant to the third paragraph of Article 177 of the Treaty establishing the European Economic Community, when a question of interpretation within the meaning of the first paragraph of that article is raised in an appeal on a point of law, to refer the matter to the Court of Justice for a preliminary ruling, having regard to the fact that a judgment of the Hoge Raad delivered on an application for an inter­ locutory injunction is not binding on a court which later has to deal with the substance of the case. If this question cannot be answered generally in the negative or affirmative, what are the circumstances which determine whether such an obligation should be deemed to exist?

2. Does Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, whether or not in conjunction with other provisions of Community law, prevent a Member State from refusing to admit a relative mentioned in Article 10 (1) of the regulation, of a worker employed within the territory of that Member State, where the relative wishes to take up residence there with that worker, if the worker has the nationality of the State in which he works and the relative has another nationality?"

9 Therefore the specific objective underlying the third paragraph of Article 177 is preserved if the obligation to refer preliminary questions to the Court applies within the context of proceedings as to the substance even if that action is tried before the courts or tribunals belonging to a jurisdictional system different from that under which the interlocutory proceedings are conducted, provided that it is still possible to refer to the Court under Article 177 any questions of Community law which are raised.

10 The answer to the first question submitted by the Hoge Raad must therefore be that the third paragraph of Article 177 of the EEC Treaty must be

MORSON and JHANJAN v STATE OF THE NETHERLANDS

interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law is not required to refer to the Court a question of interpretation as referred to in the first paragraph of that article if the question is raised in interlocutory proceedings and the decision to be taken is not binding on the court or tribunal which later has to deal with the substance of the case, provided that each of the parties is entitled to institute proceedings or to require proceedings to be instituted on the substance of the case even before the courts or tribunals of another jurisdictional system and that during such proceedings any question of Community law provisionally decided in the summary proceedings may be re-examined and be the subject of a reference to the Court under Article 177.

Second question

15 It is however clear that Article 7 and Article 48 may be invoked only where the case in question comes within the area to which Community law applies, which in this case is that concerned with freedom of movement of workers within the Community. Not only does that conclusion emerge from the wording of those articles, but it also accords with their purpose, which is to assist in the abolition of all obstacles to the establishment of a common market in which the nationals of the Member States may move freely within the territory of those states in order to pursue their economic activities.

16 It follows that the Treaty provisions on freedom of movement for workers and the rules adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations governed by Community law.

17 Such is undoubtedly the case with workers who have never exercised the right to freedom of movement within the Community.

18 The answer to the second question submitted by the Hoge Raad must therefore be that Community law does not prohibit a Member State from refusing to allow a relative, as referred to in Article 10 of Regulations No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, of a worker employed within the territory of that State who has never exercised the right to freedom of movement within

MORSON and JHANJAN v STATE OF THE NETHERLANDS

the Community to enter or reside within its territory if that worker has the nationality of that State and the relative the nationality of a non-member country.

OPINION OF SIR GORDON SLYNN — JOINED CASES 35 AND 36/82

2. Community law does not prohibit a Member State from refusing to allow a relative, as referred to in Article 10 of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, of a worker employed within the territory of that State who has never exercised the right to freedom of movement within the Community to enter or reside within its territory if that worker has the nationality of that State and the relative the nationality of a non-member country.

Mertens de Wilmars O'Keeffe Everling

Pescatore Mackenzie Stuart Bosco Koopmans

Delivered in open court in Luxembourg on 27 October 1982.

For the Registrar H. A. Rühl J. Mertens de Wilmars Principal Administrator President