C-316/85

OPINION OF MR LENZ —CASE 316/85

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 14 January 1987 *

Mr President, entitled to reside with a worker who is a Members of the Court, national of a Member State and is employed in the territory of another Member State.

CENTRE PUBLIC D'AIDE SOCIALE DE COURCELLES v LEBON

lation No 1251/70. After apparently always Liège where the respondent was habitually having previously lived with her parents, she resident when she made the claim that was worked in France from 1979 to 1981 and competent. Since the Courcelles Centre did then in February 1982 returned to Belgium. not immediately forward the application to It seems that at first she lived for a few Liège (in accordance with a Royal Decree weeks with her parents; as from May she of October 1974 a social welfare office was in Namur (where she was registered as which considers it is not territorially seeking employment); in December 1982 competent is required to forward the she was admitted to hospital and from application made to it within three days), January to October 1983 she received the question also arose before the cour du treatment in a day centre in Liège (staying travail whether there was a right to compen­ during the week at a hostel for the homeless sation. That depended on the question in Liège and returning at the weekend to whether the authority in Liège ought to her parents' home in Courcelles). have granted the minimex.

8. The matter came on appeal before the '(1) Where a national of a Member State of cour du travail (Labour Court), Mons. In a the European Economic Community judgment of 18 October 1985 the cour du has settled with his family within the travail found that it was not the Courcelles territory of another Member State and Centre but the corresponding authority in remains there after having obtained a

OPINION OF MR LENZ —CASE 316/85

retirement pension, do his descendants argument at the hearing. For the precise who were living with him retain the content of those observations I refer to the right to equality of treatment granted Report for the Hearing. by Regulation No 1612/68 when they have reached the age of majority, are no longer dependent upon him and do not have the status of workers? B — Analysis

(2) If so, do such descendants continue to retain that right where they no longer 12. 1. The Belgian and Netherlands live with the migrant worker and have Governments suggested taking the questions returned to the Member State of which in a different order and in particular dealing they are nationals and have lived there with the fourth question first. There are independently for a certain period, good reasons for doing so as essentially it either for more than one year or for might seem appropriate first to consider the more than two years (see Article 5 of problem whether the respondent has a claim Regulation No 1251/70)? to equal treatment in her own right as a worker.

CENTRE PUBLIC D'AIDE SOCIALE DE COURCELLES v LEBON

minimex she was in any event over 21 years guaranteed income for old persons under of age. Belgian law); Case 94/84, which I have already mentioned, is of relevance for relatives in the descending line (it was concerned with bridging maintenance for young workers who find no work on the 15. The Netherlands Government rightly conclusion of their school education or their observed that according to the system of apprenticeship). In that case decisive Regulation No 1612/68 descendants of influence was clearly exercised by the workers who are not themselves workers consideration that discrimination against and who reside with the worker only on the such dependents of migrant workers would basis of Article 10 of the regulation, have no adversely affect the right of freedom of claim to absolute equality of treatment with movement but that does not apply in the the nationals of the State of residence. It is case of more distant relatives who do not simply provided in Article 12 that children satisfy the conditions of Article 10 (1). of a migrant worker are to be admitted to the general educational, apprenticeship and vocational training courses of the State of employment on the same conditions as the nationals of that State while Article 11 17. If the facts are such as described in the provides that dependent children of a first question, that is to say the case of a migrant worker who are under the age of person who is not herself a worker, is more 21 years have the right to take up any than 21 years of age but is not maintained activity as an employed person in the State by a worker, then it is clear that in the of employment. absence of a right of residence on the basis of Regulation No 1612/68 there is no claim to equal treatment under that regulation.

OPINION OF MR LENZ — CASE 316/85

the family are concerned is determined by- It also finds it significant in this connection Regulation No 1612/68. that Article 5 of Regulation No 1251/70 provides that the person entitled to the right to remain may exercise it within two years from the time of becoming entitled to do so.

19. 3. Since the second question arises only in the event that the first question is answered in the affirmative, there is no need to discuss it in view of the conclusion which 21. The Commission on the other hand I have just reached. If, however, one does considers that the question should be not adhere too closely to the actual wording answered in the affirmative. In other words, of the question, one may gain the it should be accepted that a descendant of a impression that, at least tacitly, the migrant worker may, if after reaching the following further, and broader issue is age of 21 he is supported, following a broached, one which is certainly of period of independence, reacquire the relevance to the case in the main position under Article 10 (1) of Regulation proceedings. That is the question whether a No 1612/68 (right of residence and claim to descendant who was maintained by a equal treatment) even where he resides with migrant worker (and thus had a right of a former migrant worker who has exercised residence pursuant to Article 10 (1) of his right to remain under Regulation No Regulation No 1612/68 and a claim to 1251/70. Let me say straightaway that it equal treatment) may, after temporary inter­ seems to me the Commission has put ruption of the cohabitation (while he forward solid reasons for its view which resided abroad and was independent), should be adopted by the Court in its reacquire the status required for the preliminary ruling. application of Article 10 (1). That must in any event be discussed.

CENTRE PUBLIC D'AIDE SOCIALE DE COURCELLES v LEBON

23. The Commission also convincingly years begins to run when they are taken into argued that since the former migrant the household, and, as the case may be, are worker's right to remain is expressly supported by him. It thus does not neces­ mentioned in Article 48 (3) (d) of the EEC sarily follow that a member of the family Treaty it can have no lesser rank than the must have lived with the worker when his worker's right to freedom of movement. It right to remain arose. must therefore be considered that in this connection, too, namely as regards the possibility of the family living together again, there is no justification for a restrictive interpretation. It would be incom­ prehensible if it depended on whether a 25. With regard to the second question it member of a family entitled to remain had may thus be said that the fact that the over a certain period exercised bis right to respondent (who moreover was obviously freedom of movement. Moreover, it cannot already living with her father at the be ruled out that a restrictive interpretation beginning of his retirement) was for some of the right to remain would have adverse time not entitled to reside in Belgium effects on the right to freedom of movement pursuant to Article 10 (1) of Regulation No for it may be assumed that workers 1612/68 does not mean that she may not frequently remain where they have worked reacquire a right to reside as a member of for the longest period and that they prefer the family of a migrant worker even if she not to exercise their right of freedom of once again fulfils the conditions of Article movement if in the case of any activity 10 (1) after the period of her independence. pursued abroad they can do so only subject to considerable restrictions.

OPINION OF MR LENZ —CASE 316/85

31. Had such an obligation been intended it efforts made, no occupation can be found could easily have been expressed in the and there is no other income, the wording of Article 10 and there would not Commission goes on to say, however, that simply have been a reference to dependents such criteria cannot be decisive in view of (just as in Council Directive 68/360/EEC of the difficulties of appraisal involved. The 15 October 1968 provision is made, in 'factual situation' is the decisive factor so relation to Article 10, simply for the that Article 10 (1) also covers indolent production of a document issued by the members of the family if they are supported. competent authority of the State of origin testifying to dependency). It must moreover not be overlooked that the German Government's view would make national law the criterion since that determines the personal relations of the worker to the members of the family referred to in Article

It is hard to duration and amount of maintenance) and imagine, however, that, in relation to a since there would also be a risk of abuse factor which is of considerable importance (establishing a right of residence by for freedom of movement, such a situation temporary payments to members of the should be accepted. It follows that 'the family and thus making it possible to obtain provisions on persons who have a right of social assistance by artifice), the criterion is residence in Article 10 of Regulation No to be found in rights and duties in the 1612/68 apply uniformly and equally in all matter of maintenance and there can be no Member States'. 7 question of the provision of support if the recipient is in a position to obtain income by 7 — See my Opinion in Case 59/85 State of the Netherlands v Ann Florence Reed [1986] ECR 1283, particularly at p. working. 1290 et seq, paragraphe B.II.1.(d).

33. In that respect the Commission has shown that under Belgian law the minimex consists, normally, of small sums of money which accordingly are often no more than 37. That concern does not however, in my supplementary payments which do not opinion, necessarily entail a restrictive remove the necessity for substantial contri­ application of Community law as advocated butions from relatives who provide support. by the German Government. The risk in Thus it cannot be said that those who claim point can largely be met by national rules such benefits are not at the same time on social assistance, for example by making supported from other sources. it depend on whether the applicant can claim maintenance from members of the family or is in a position to maintain himself by accepting reasonable employment. Belgian law seems in fact to have such 34. Reference may also be made to the provisions for Article 6 of the Law of 7 case-law of the Netherlands Hoge Raad August 1974 refers to proof of willingness according to which social assistance to work and that the person concerned may payments of the amount of the minimex do be required to make claims for maintenance not preclude the recipient from being against certain relatives. regarded as in need for the purposes of the law on maintenance (see the judgment of 28 August 1939, Nederlandse Jurisprudentie, pp. 818 and 819).

dependency, as reference to the laws of the concept of 'dependency'; this follows from Member States shows). an interpretation of the concept of 'dependency' on the basis of national law, or should one prefer this, of a general principle of law. I refer to German, French, Spanish, Netherlands and Greek law under 39. The only question which arises in the which the dependency of members of the present case in relation to Article 10 (1) is family is variously related to capacity for essentially whether it is of decisive work and whether the acceptance of importance that a member of the family employment can be expected. Reference could obtain the necessary means through may also be made to Italian and Portuguese his own work and whether there can be said law under which a corresponding idea is to be dependency for the purposes of that expressed in the criterion whether the provision only if it is shown that the physical and intellectual capacities of the member of the family who is being person concerned enable him to maintain supported can find no work in spite of himself. In addition there is Danish social serious efforts on his part. law (I have no information on the relevant legal provisions in the other Member States) in which unjustified refusal to work is relevant. 40. It seems to me, if I may say so at once, that this question must indeed be answered in the affirmative. For the purposes of Article 10 (1) it is a question not only of actual dependency (such as that of a member who prefers to be idle) but also, to 43. (e) In my opinion the only answer use the words of the question, of objective which can be given to the third question is circumstances independent of the will of the that dependency for the purposes of Article person concerned which make it necessary 10 (1) of Regulation No 1612/68 is not for him to have recourse to the support of purely a matter of actual payments to meet the worker. a substantial part of daily needs; it is more important to consider whether, because of need, such necessity exists and cannot be met by taking up suitable employment in spite of serious efforts to find it. 41. It must indeed be admitted that this is certainly not expressly stated in Article 10 (1) (although it could have been without major difficulty). It must however be recognized that such considerations are obvious in a regulation which is concerned 44. 5. The fourth question is concerned with with the freedom of movement for workers whether the respondent in the main and which is also intended, as is apparent proceedings has a claim to equal treatment from Article 11, to enable members of the in her own right as have workers under family of the workers to obtain employment Community law. It asks what factors must in the State of employment. be present for that purpose, whether it is sufficient that there should be an intention to acquire the status of a worker or whether serious and genuine efforts must be shown 42. Secondly, it may be said that the factor in that direction even to the extent of referred to is also indissociable from the producing an offer of employment.

46. First it is clear that the production of an offer of employment cannot be required. In that respect reference may be made to Article 5 of Regulation No 1612/68 which 48. (b) However, it is also clear, as the provides that a national of a Member State Netherlands and German Governments who seeks employment in the territory of stress and the Commission agreed at the another Member State is to receive the same hearing, the foregoing observations which assistance there as that afforded by the arose from the wording of the fourth employment offices in that State to their question basically do nothing towards own nationals seeking employment. That resolving the problem with which the main means that personal contacts with such proceedings are concerned. It is concerned offices must be possible without there with equality of treatment in connection already being an offer. It is also significant with the grant of social advantages and the that under Article 3 of Directive No fourth question is in particular concerned to 68/360/EEC the production of a valid ascertain whether the respondent may claim identity card or passport is sufficient for them directly on the basis of Article 7 of entry. It is significant in addition that the Regulation No 1612/68 and not only Member States adopted an interpretative through her father's claim to equality of declaration at the meeting of the Council treatment as a former migrant worker. at which Regulation No 1612/68 and Directive 68/360/EEC were adopted to the effect that 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 (judgment in Case 53/81 8). 49. In that respect it is important to note that the wording of Article 7 of Regulation No 1612/68 refers to the actual pursuit of an activity. It is significant in any event that wherever in Title I to that regulation a person seeking work is referred to it is made 47. On the other hand a simple statement clear and the expression 'worker' is not of intention to seek work is equally insuf­ used. It is also appropriate to mention, as ficient. That is apparent from paragraph 21 the Netherlands Government has done, the of the judgment I have just cited where it is fact that in the description of the nature of stated that the advantages which the right to freedom of movement in Article Community law confers in the name of 48 of the Treaty there is at most (as in freedom of movement may be relied upon paragraph (3) (a)) reference to offers of employment but it is nowhere stated that 8 — Judgment of 23 March 1982 in Case 53/81 Levin v Staats- persons seeking work are to be treated as secretarisvan Justitie[1982] ECR 1035 at p. 1043. workers for the purposes of that provision.

(ii) they are dependent after reaching the age of 21 years.

(2) Descendants who have resided with a former migrant worker may reacquire the right to equality of treatment pursuant to Regulations (EEC) Nos 1612/68 and 1251/70, which they have lost as a result of ceasing to reside together with the migrant worker (as a result of returning to their home country and living independently) if they fulfil the conditions laid down in Article 10 (1) of Regulation (EEC) No 1612/68 (dependency) and Article 3 of Regulation (EEC) No 1251/70 (residing with the former migrant worker).

(3) For the status of 'descendants who are dependents' it is not sufficient that the migrant worker should actually satisfy their needs but it is also of importance

CENTRE PUBLIC D'AIDE SOCIALE DE COURCELLES v LEBON

that such needs cannot be obviated by serious efforts to find suitable employment.

(4) In order to enter the territory of another Member State a national of a Member State who intends to acquire the status of worker does not need to produce an offer of employment; he must, however, prove the seriousness of his intention. To establish a right to residence, with which a claim to equality of treatment as a worker is associated, serious and genuine efforts to find employment are not sufficient; the pursuit of an activity as a worker is necessary.