C-39/86

Mrs Lair challenged the University's refusal in the Verwaltungsgericht (administrative court) at Hanover, claiming that periods of retraining and unemployment during which She then began a degree course in Romance she was entitled to unemployment benefit and Germanic languages and literature at must be regarded as the equivalent of the University of Hanover. She had applied periods of employment in calculating the for an education grant which was refused by relevant five years. She says further that a decision of 18 September 1984. Her since persons whose parents have worked in objection to that refusal was dismissed by the Federal Republic for three years, the University on 19 October 1984 on the including periods of unemployment, are grounds that foreigners could only be given entitled to grants, it is discriminatory (it education grants if they had been engaged seems between non-nationals) contrary to in full-time employment in the Federal Article 7 of the EEC Treaty to refuse her a Republic for at least five years and had grant unless she has been employed for five therefore paid tax and social security contri­ years. She also claims that education grants

OPINION OF SIR GORDON SLYNN — CASE 39/86

are a social advantage within the meaning The following questions are therefore now of Article 7 (2) of Regulation No 1612/68 before the Court: (Official Journal English Special Edition 1968-69, p. 45).

LAIR v UNIVERSITÄT HANNOVER

Article 7 of Regulation No 1612/68 reads has recently underlined this in Case 316/85 as follows (as far as is relevant): Centre public v Lebon ([1987] ECR 2811), in holding that a person seeking work and the children of a worker do not have rights under Article 7.

'1 . A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of It is clear law, however, that 'worker' must employment and work, in particular as be interpreted as a matter of Community regards remuneration, dismissal, and should law: the concept does not vary from he be become unemployed, reinstatement or Member State to Member State and cannot re-employment. be restricted by national measures (Case 75/63 Hoekstra v Bestuur der Bedrijfsve- reniging voor Detailhandel en Ambachten ([1964] ECR 177). Even though the rules on freedom of movement of workers 'cover only the pursuit of effective and genuine 2. He shall enjoy the same social and. tax activities to the exclusion of activities on advantages as national workers. such a small scale as to be regarded as purely marginal and ancillary' and 'guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity' the concept 3. He shall also, by virtue of the same right of 'worker' must be broadly construed and under the same conditions as national (Case 53/81 Levin v Staatssecretaris van workers, have access to training in voca­ Justitie [1982] ECR 1035, at p. 1050). In tional schools and retraining centres.' Case 66/85 Lawrie-Blum v Land Baden- Württemberg ([1986] ECR 2121) the Court specified that the essential characteristic as to whether a person is a worker is that during a certain period of time he performs It appears that no fees are payable in respect services for and under the direction of of Mrs Lair's course. The 'education grant' another in return for remuneration. which she seeks is intended solely for her maintenance and takes the form of a loan repayable within a certain number of years after the end of the course.

worker'. She thus at this period was entitled That seems to me to involve that he must to excercise the rights given by that regu­ have exercised his right to move to take up lation unless it is justified to impose a limit employment and be in the host State in the of five years' employment before she can capacity of a worker as well as doing a qualify as a worker. genuine and effective job (Levin) which satisfies the necessary characteristics of an employment relationship (Lawrie-Blum). If he is there as such a worker the collateral intentions behind his going (e. g that he wants his wife and children to be in a particularly agreeable area or near to a Whether five years can be justified as an particular educational institution) are absolute yardstick in deciding whether a irrelevant. But if he goes there not genuinely person really is a worker for the purposes of in the capacity of a worker but, e.g., in the regulation is discussed in the reference order to become a student or to gain a and has been much debated in these short, useful experience before his studies proceedings. It is convenient to deal with begin, then it does not seem to me that he is this argument first before turning speci­ to be regarded as a worker for the purposes fically to the terms of Article 7 (2) and of Article 7 (2) and (3) of the regulation, Article 7 (3). even if during that period he is doing genuine and effective work which satisfies the test in Lawrie-Blum. Rights under those provisions are given only to persons in a Member State genuinely in the capacity of a worker.

It is also obvious that this approach will produce difficult cases; that is no novelty either for national administrations or courts. Until in relation to maintenance grants there is either a system of reciprocity between Member States or agreement that each If, as a matter of the practical application of Member State maintains its own students the regulation, it is right to take a specified when working in another Member State, test period as a guideline (as I think it is) to difficulties seem to be inevitable. see whether a person is a worker, then it seems to me that it cannot reasonably exceed one year. On any view a period of five years to prove that a person is there genuinely in the capacity of a worker cannot be justified. If, however, it is clear that even before that period (and this may well be the exceptional case) a person I do not find it possible to accept that moved to work and became a genuine working for however short a period is worker, and then decided to undertake necessarily sufficient to give rights to a vocational training, he has the rights maintenance grant under Article 7. It is conferred by Article 7 (3). If it is not clear, unacceptable that the person who honestly then a period of a year seems to me to be a says, 'I am going as a student' should get no reasonable prerequisite in order to decide maintenance grant under the regulation, the question whether he is a worker for the whereas the person who gets a job for a purposes of Article 7. day, or a week or a month, in order essen­ tially to be in the Member State to study should be able to say on day 1 or day 7 or day 31 : 'I am now a worker; pay me a grant under Article 7'.

The right under Article 7 (3) in the English text is the right under the same conditions as national workers to 'access to training in It is said, however, by the German vocational training schools and retraining Government, supported by the Danish centres'. It is, however, to be noted that, in Government, which have both submitted the other language texts, this reference to observations, that when she became a access apparently does not appear. Thus, the student the applicant ceased to be a worker French text reads: 'Il bénéficie également au so that at any rate during her period as a même titre et dans les mêmes conditions que student she no longer had any rights under les travailleurs nationaux, de l'enseignement the regulation. In reply to the argument that des écoles professionelles et des centres de the Court's case-law extends the benefit of réadaptation ou de rééducation'. The Article 7 of the regulation to former German text similarly reads 'Er kann mit workers and to the families of former or gleichem Recht und unter den gleichen deceased workers (e. g. Case 32/75 Cristini Bedingungen wie die inländischen Arbeit­ v SNCF [1975] ECR 1085) it is said that nehmer Berufsschulen und Umschulungs­ such indirect benefits are granted by zentren in Anspruch nehmen'. reference to the former worker's status as a worker.

It seems to me plain that such right, whether of access or training, is given to the worker. He can exercise it, and he is entitled to the full benefit of it, even if it Although it may well be that certain rights means that during the period of training he conferred by the regulation are not available ceases to work. To say that he can exercise to someone who is a student, whilst a the right by going to a vocational training student, it does not follow that a person school but that, the moment he does so, he who as a worker opts to become a full-time loses all the benefits conferred on national student has no rights under the regulation. workers deprives the provision of all It depends on the nature of the right content, indeed of all sense. It follows that conferred. if the worker goes to a vocational training

It is, however, sought to qualify any right given on the basis that it only applies where the course undertaken is connected with the Nor do I think that the provisions of Article work previously done. I do not find this 7 (3) are limited merely to the right to limitation in Article 7 (3) either expressly or attend a course shorn of any rights to a impliedly in relation to training in voca­ grant. If one of the conditions under which tional schools. Such a limitation as is a national worker can attend such a course suggested in my view conflicts with the aim is that he obtains a grant, then a grant is of the regulation which is directed to the one of the conditions available to the mobility of labour on equal terms and which worker from another Member State. This recognizes the 'close links' which exist approach seems to me to be entirely between freedom of movement for workers, consistent with the Court's decisions under employment and vocational training. Article 12 of the regulation, which gives a right to children of a national of one Member State employed, or who has been employed, in another Member State to be 'admitted to that State's general educa­ tional, apprenticeship and vocational training courses under the same conditions as the nationals of that State ... '. In Case Although the reasoning said to lie behind 9/74 Casagrande v Landeshauptstadt the refusal (that only those who contribute München [1974] ECR 773 the Court held

OPINION OF SIR GORDON SLYNN — CASE 39/86

The question is thus whether the training sought here is in a vocational training school. I have come to the conclusion that 'vocational training' can take place in a university (my Opinions in Cases 293/85 Commission v Belgium, [1988] ECR 305, 328; and 24/86 BUizotv University of Liège and Others [1988] ECR 379, 395). In Brown both Germany and Denmark appear to accept this. If that is right a university in my view is pro tanto a vocational training school and I see no valid reason to apply Article 7 Article 7 (2) confers the right to enjoy the (3) to only some institutions of education same social advantages as national workers. where vocational training is given. There is The Court has in a number of cases no magic in the word 'school': within a construed such advantages as being those university the word is not uncommonly available to national workers by reason of found as being a part of the university as in their objective status as workers or by the 'law school' or 'medical school'. mere fact that they are residents in their national State and whether or not such advantages are directly related to the contract of employment (e. g. Case 261/83 Castelli v Office national des pensions pour travailleurs sakriés [1984] ECR 3199). The question is therefore whether if a national worker of one Member State goes to take up employment in another Member State and then begins a higher education course Whether the training is vocational training leading to a job qualification he can claim depends on the Court's test in Gravier as an educational grant as a social advantage

The word 'also' in Article 7 (3) ('également' in the French text) does not seem to me to I do not accept this argument although I exclude this result. It might well have been recognize its force. In the first place the thought that it was arguable that, although Court has given a broad meaning to 'social general education is a 'social' advantage, advantage' as I have no doubt the regulation vocational training is an 'employment' intended. Thus in Case 65/81 Reina v advantage, so that it was necessary to Landeskreditbank Baden-Württemberg [1982] protect against the latter being by interpre­ ECR 33, which covered childbirth loans to tation excluded from Article 7 (2) by national workers on demographic grounds, providing specifically for it in Article 7 (3). the Court accepted that 'the concept of social advantage referred to in Article 7 (2) of the regulation encompasses not only the benefits accorded by virtue of a right but also those granted on a discretionary basis'. Those benefits are obviously not limited to cash payments but they include them. Similarly, as already shown, Article 12 has In this context it is not relevant that the been given a wide construction (Casa- national legislation in question covers a class grande). It seems to me that educational of nationals as a whole and is not confined grants generally are perfectly capable of to national workers or their children (Case falling within 'social advantages' for 76/72 Michel S. v Fonds national de reclas- workers without giving a particularly wide sement social des handicapés [1973] ECR 457, meaning to that term. at p. 464).

Reliance was placed by the German Government on Regulation (EEC) No 1251/70 of 29 June 1970 (Official Journal 1970, L 142, p. 24). It is said that such a It is argued that this conclusion cannot be regulation does not confer upon students a right because educational and social policy right to remain in the territory of a Member remain within the sole control of Member State after having been employed in that States and the Community cannot interfere. State. Accordingly they cannot claim any rights as workers to stay and undertake studies. I do not find that regulation helpful. It seems to me to be dealing with specific situations where, for example, a worker has reached retirement age or has become inca­ pacitated and is permanently giving up work or where he works in another Member State whilst keeping his residence in the State in which he previously worked and to which It is true that Member States are left to he returns once a month. The absence of pursue such policies. The Court, however, students from such a regulation does not has made it abundantly clear that they must seem to me to bear upon the questions in be pursued in such a way as not to conflict this case. with Community provisions. Thus in Casa- grande the Court said: 'Although educa­ tional and training policy is not as such included in the spheres which the Treaty has entrusted to the Community institutions, it does not follow that the exercise of powers transferred to the Community is in some way limited if it is of such a nature to affect the measures taken in the execution of such Does the applicant have an additional right a policy as that of education and training' under Article 7 of the Treaty to this kind of (paragraph 6). Again in Reina, where demo­ grant? Such a right can only exist if the graphic policy was relied on and a Member principle stated in Gravier applies to main­ State's freedom to deal with it accepted, the tenance grants for vocational training. In Court said: 'This does not mean, however, my view it does not, for the reasons given in that the Community exceeds the limits of its my Opinion in Brown. Though having in jurisdiction solely because the exercise of its other cases taken the opposite view, in jurisdiction affects measures adopted in Brown the Commission, it seems to me, was pursuance of that policy' (paragraph 15). accepting this position. A fortiori Article 7 Accordingly childbirth loans were not to be does not apply to grants for non-vocational treated as excluded from the ambit of education.