C-197/86

OPINION OF SIR GORDON SLYNN —CASE 197/86

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 17 September 1987

My Lords, University to read electrical engineering, the course beginning in the autumn of 1984.

Before going to Cambridge, he was This reference for a preliminary ruling employed from 9 January 1984 as a trainee under Article 177 of the EEC Treaty from engineer with Ferranti plc in Edinburgh. His the Court of Session, Scotland, raises employment was full-time, salaried important issues as to the rights of a person employment described as 'pre-university to vocational training in a university, and in industrial training' and national insurance particular as to rights to a maintenance contributions were paid. After a 12-week grant. It is the last in the series of five cases induction course, he was set to work and in the others of which I have already given 'carried out electrical engineering tasks of a Opinions which in part deal with the practical nature which the company matters in issue. I shall make reference to required to be carried out as part of its those Opinions to avoid repetition. The normal trading activity', in the words of the agreed relevant facts stated, if I may say so, Order for Reference. It was a pre-condition with the utmost clarity, in the Order for of being accepted for such training that he Reference can be summarized as follows. should have been awarded a university place. He left Ferranti for Cambridge on 14 September 1984.

performance when employed in the earlier member. To become a corporate member, part of 1984 being taken into account. further requirements of practical training and experience must be met. The candidate must also satisfy a 'professional test' comprising a written submission recording his experience and an interview in relation to that submission. While a person may Cambridge University recommends but does carry on business in the United Kingdom as not require electrical engineering students to an engineer and use the title 'engineer' obtain industrial experience before starting without possessing any formal qualifications the course. However, it is obligatory to and without being a member of a particular acquire eight weeks experience before the institution, a person registered in the end of the second year. professional engineers' section of the Engin­ eering Council's register is entitled to use the title 'Chartered Engineer' and the desig- natory letters 'C.Eng.' provided that he is a member of a nominated institution. The petitioner's intention is to qualify and Corporate membership of the Institution of to work as an electrical engineer and to Electrical Engineers entitles a person to be become a member of the professional body so registered. for electrical engineers, the Institution of Electrical Engineering.

OPINION OF SIR GORDON SLYNN — CASE 197/86

(3) although resident within the European 2. He shall enjoy the same social and tax Community and the child of an EEC advantages as national workers. national, neither of his parents was employed in Scotland on, or had been in employment in Scotland for an aggregate period of not less than one 3. He shall also, by virtue of the same right year during the three years preceding, and under the same conditions as national the 'qualifying date' (in casu 30 June workers, have access to training in voca­ 1984). tional schools and retraining centres.'

BROWN v SECRETARY OF STATE FOR SCOTLAND

Anicie 12 of Regulation No 1612/68 (a) vocational training falling within the provides : scope of the EEC Treaty for the purpose of Article 7 thereof as inter­ preted in Case 152/82 Forcheri v Belgium and Case 293/83 Gravier v City of Liège; 'The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training and courses under the same conditions as the nationals of that State, if such children are residing in its territory.'

My views are set out in my Opinions in those cases, particularly that in Belgium, and 'Does a course of full-time study in engin­ I do not repeat them here in extenso. eering at a university leading to the award Briefly, they are that a university course of a degree which enables the holder of the constitutes vocational training if it 'prepares degree to satisfy the educational for a qualification' or 'provides the requirements for associate membership of necessary training and skills' for a particular the professional body for electrical profession, trade or employment, even if it engineers which in turn may enable him, includes 'an element' of general education. after completion of further practical In answer to the Court's written questions experience, to be registered as a professional the German Government appeared to accept engineer and to use the title "Chartered that all forms of university level education Engineer" constitute either or both of: which prepare for a profession or

OPINION OF SIR GORDON SLYNN —CASE 197/86

employment is vocational training and the 'Chartered Engineer'. It seems clear that the Danish Government equally accepted that degree which entitles him to associate all training conferring competence in an membership is an integral part of the full occupation over and above general qualification in addition to being a training education is vocational training. for the particular profession.

On the agreed facts set out in the Order for Reference it appears prima facie that the petitioner's course satisfies the test which I As to the second part of the first question have set out as being the basis of Gravier in the petitioner and the Commission take the respect of the profession of electrical engin­ view that no distinction can sensibly be eering. It gives him in large measure the drawn between 'vocational training' and the necessary training and skills to be an elec­ phrase 'training in vocational schools' in trical engineer, to be employed in electrical Article 7 (3) of Regulation No 1612/68. engineering and, if his degree is at the The United Kingdom considers that the required level, to become an associate Court may well so conclude. In my view member of the professional institution which any educational establishment providing one enables him to proceed to full membership. or more courses in vocational training It is not in my opinion decisive against him should be regarded pro tanto as a 'voca­ that the course does not give him tional school' for the purposes of Article 7 immediately or directly the qualification of (3).

BROWN v SECRETARY OF STATE FOR SCOTLAND

For the reasons given, on the basis that he Does Gravier cover tuition fees as opposed was undertaking vocational training, those to an enrolment fee? If it is a condition of fees were not payable according to the access to the national training that tuition Gravier decision, which as I have indicated fees be paid, in my view plainly yes. In in Blaizot I consider not to have merely a Gravier reference is made to an enrolment prospective effect but to cover students

OPINION OF SIR GORDON SLYNN —CASE 197/86

undertaking vocational training at the time The question is not an easy one, but for the of the Gravier judgment in respect of the reasons given in my Opinion tentatively in whole of their courses. They are, Gravier and below, I do not consider that accordingly, so far as paid, recoverable; if the conditions of access referred to in unpaid they are not payable. Gravier cover such grants.

Is such a result inconsistent with the contention of the Commission, and the concession of the Secretary of State, that for someone who is a worker there can be no discrimination as to maintenance grants The Member States which have submitted for vocational training for the purposes of observations, and the Secretary of State in Article 7 (3) of Regulation No 1612/68? In the national proceedings, insist that main­ my view it is not. There is in the regulation tenance grants do not fall within the a specific provision that a worker is entitled Gravier principle. In this case the 'by the same right and under the same Commission did not contend that they did conditions as national workers' to have so. Indeed, although it took a different either 'access to vocational training' or, as position in earlier cases, it seems to me that in the French text, simply 'l'enseignement it was ultimately accepting that they do not. des écoles professionnelles'.

BROWN v SECRETARY OF STATE FOR SCOTLAND

In the light of the French and other texts the social security system as a trainee than the English, I consider that 'access to electrical engineer for a period of eight vocational training' means the same as months before going to university; 'l'enseignement des écoles professionnelles' and covers not merely the right to attend but all aspects of the pursuit of a vocational course. Taking account of the objectives of (b) prior to entering the host State the the regulation as spelled out in the recitals, person concerned had already arranged it seems to me, for the reasons given in my that at the end of the period of eight Opinion in Lair, that the right and months he would take up full-time conditions referred to in Article 7 (3) studies in engineering at a university in include maintenance grants if they are given the host State; to national workers.

v Land Baden-Württemberg (judgment of 3 It is plain that for the 'purpose of Article 48 July 1986, [1986] ECR 2121) as a person 'worker' is to be given a broad meaning (see who 'for a certain period of Case 53/81 Levin v Staatssecretaris van time ... performs services for and under the Justitie [1982] ECR 1035, at p. 1050). It is direction of another person in return for equally clear that the work during his which he receives remuneration'. He was in period at Ferranti had the indicia of a the same position as the trainee teacher in contract of employment referred to in Lawrie-Blum, who was also undertaking Lawrie-Blum. For that purpose a worker 'practical preparation directly related to the may be part-time or receive less than the actual pursuit of the occupation in point'. minimum subsistence wage specified by the Moreover he was covered by the national national authorities. On the other hand social security system as a trainee engineer. Levin made it equally plain that the employment must be effective and genuine 'to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary' and that the rules as to freedom of movement for workers 'guarantee only the free movement of persons who pursue or are desirous of The petitioner and the Commission say that pursuing an economic activity'. this is enough. Once a worker, he is a worker for all purposes and no period can be prescribed before he can be regarded as a worker either for the purposes of Article48 or for the purposes of the regulation. His intentions in taking up this employment are irrelevant, as is the fact that it was from the A person who is a 'worker' for the purposes beginning intended to be for a limited of Article 48 is entitled to accept an offer of period before he began his university course. employment actually made and to move into a Member State for that purpose. The Court has accepted that he also has the right to go in search of employment (judgment of 18 June 1987 in Case 316/85 Centre public v Lebon [1987] ECR 2811). A person seeking work does not have rights under Article 7 (2) of the regulation and it does not seem to The United Kingdom, Germany and me to follow that even if a person has rights Denmark once again totally disagree with under Article 48 of the Treaty he necessarily that conclusion. The regulation is designed has all the rights conferred by Article 7 of to facilitate the taking-up of employment in, the regulation. and the integration of migrant workers into, the host Member State. To regard a short-term period of employment, even if taken as a means of supplementing income or as useful to his course, whether before going to university or during vacations, as In my opinion for the purposes of applying qualifying for student maintenance grants, for a student grant under Article 7 he must perhaps over a very long period, is, it is show that he does so genuinely in his said, to give a wholly unjustified interpre­ capacity as a worker and he must be in the tation to the object and purpose of Regu­ Member State in such capacity and for the lation No 1612/68. purpose of being a worker.

A person who has the fixed intention of schappelijk Welzijn [1985] ECR 973 and going to a Member State in any event as a 122/84 Scrivner vCentre public d'aide sodale student, and who has a place in a university de Chastre [1985] ECR 1027). But in or school for a fixed date and period, but deciding whether a person is such a worker, who in order to gain useful experience does if the matter is in doubt, it is in my view a short-term job, does not in my view permissible to have regard to the length of qualify under Article 7 (2) and (3) as a the period during which he claims to have person who can claim a grant in his capacity worked. That period must be reasonable for as a worker. In a sense the work is ancillary the purpose and it seems to me that a year to the course of study and although the is, if not an infallible yardstick, a reasonable collateral intentions of someone who is one for the purpose. doing a genuine job in his capacity as a worker have been said to be irrelevant, the Court's decisions do not in my view preclude an examination of the reasons for his being in a Member State and doing temporary work and of the real capacity in which he makes a claim for a grant. It seems I do not accept that the Court's decision in to me that a person who goes through the Case 157/84 Frascogna v Caisse de dépots et stages postulated in the question is going to consignations ([1985] ECR 1739) prevents university in the position of a student in the the imposition of a minimum period in ordinary course; he is in no real sense a order to decide whether a person is person who is exercising the rights of a genuinely in a Member State in his capacity worker to take up vocational training as a as a worker. That case was concerned with means of mobility or advancement. He does an old-age allowance for a person resident not go to the university in the latter in a Member State. She satisfied the age capacity. requirements and the Court's decision was to the effect that an additional residence requirement was unlawful. By analogy, once it is clear that a person is a worker for the purposes of Article 7 of the regulation, a minimum qualifying period is not acceptable. It is different to have regard to a period of work to decide the essential question as to whether the person is a worker for the purpose of Article 7 (2) and (3) of the regulation when dealing with student grants.

'Where a worker ceases employment in order to take up, and does take up, a degree course in electrical engineering with the intention of becoming and practising as an engineer, is he entitled under Article 7 (2) If Article 12 is read literally the petitioner of Regulation No 1612/68 to an allowance says that he qualifies in any event. His payable, under national law, to students in French mother, through whom he can respect of either or both of (a) tuition fees, claim, was employed in the United and (b) maintenance?' Kingdom and he is resident there. He further makes the point that it would be a great restriction on the mobility of labour if, when a parent and child lived for 15 years in one Member State and then moved to live in another Member State, the child In view of the answer I propose to the third could not return to reside for the purposes question, the fourth question does not call of study or if children subsequently born for a detailed reply. However, for the could not do so and be entitled to the rights reasons given in my Opinion in Lair, I conferred by Article 12. The United consider that a person who is a worker for Kingdom replies that the mother left the the purpose of Article 7 (2) and (3) is United Kingdom in 1965 before the United entitled to receive maintenance grants and Kingdom's accession and that her children to be charged or exempted from tuition fees cannot have rights conferred by Community on the same conditions as nationals, under law which hinge on her employment and paragraph (2) in respect of non-vocational residence in the United Kingdom before training or under paragraph (3) in respect of that time. Morever it cannot be right that training in vocational schools or retraining children whose residence has no connection centres. with the parent's employment in a Member State should be entitled to such rights if the object of Article 12 is to facilitate inte­ gration of a worker's family into the host State where he is or was employed.

(b) Such training is training in a vocational school for the purposes of Article 7 (3) of Council Regulation (EEC) No 1612/68.

(2) Article 7 of the EEC Treaty as interpreted in Case 293/83 Gravier v City of Liège prohibits discrimination on the grounds of nationality between nationals of the Member State where or from which the vocational training takes place and nationals of other Member States in respect of the payment to or on behalf of the person undergoing such training of tuition fees but not of main­ tenance.

(3) & (4) The term "worker" for the purposes of education grants falling within Article 7 (2) or 7 (3) of Regulation No 1612/68 does not include a person who enters a Member State and works for eight months prior to beginning on a certain date a university course for which he had already been accepted before entering that State in order to obtain experience in the field of his university studies and when the employer only agrees to give him such work

OPINION OF SIR GORDON SLYNN —CASE 197/86

on the condition that he has been accepted for admission to the university. Such person is not entitled to a grant under Article 7 (2) or 7 (3) of Regu­ lation No 1612/68, either for tuition fees or for maintenance.

(5) The child of a national of one Member State is not entitled to the benefit of Article 12 of Regulation No 1612/68 in respect of an educational grant when the relevant parent had ceased to work and reside in the host Member State before the child was born; nor is he so entitled when that parent worked in, but left, the host State before its accession to the European Economic Community.'