C-235/87

OPINION OF SIR GORDON SLYNN — CASE 235/87

O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 14 July 1988

My Lords, to express themselves vocally as well as physically.

Miss Matteucci, the plaintiff in the Article 4 of the 1956 agreement provides proceedings before the Belgian Conseil that 'each Contracting Party shall grant to d'État by which this reference under Article nationals of the other party scholarships to 177 of the EEC Treaty is made, is an Italian enable them to undertake or continue national. She was born in 1960 in Belgium studies or research in the other country or where her father, an Italian migrant worker, to complete their scientific, cultural, artistic had settled. H e has since been resident in or technical education'. Relying on the Belgium as apparently has her mother. Miss nationality condition contained in that Matteucci received the whole of her article, the CGRI, the second defendant in education in Belgium. Since 1983, she has the national proceedings, refused to pass on been employed as a teacher of a discipline her application to the German authorities called 'rhythmics' at the Centre Culturel in (who, it appears, were to make the final Namur. She continued to study and selection from the candidates). Miss completed a course in rhythmics at an Matteucci's challenge of that refusal the institute in Brussels in 1985, being placed in Conseil d'État has held to be admissible. It the top 2 % of students. dismissed her case against the Communauté française, the first defendant.

condition of access to vocational training, deal with the freedom to provide services, where the same fee is not imposed on the Commission taking the view that the students who are nationals of the host matter could be resolved by reference to Member State, constitutes discrimination on Articles 7 and 48 of the Treaty and to the grounds of nationality contrary to Article 7 Regulation. In my Opinions in Gravier of the Treaty' (paragraphs 25 and 26). and in Case 263/86 (Belgium v Humbel Vocational training was defined as 'any [1988] ECR 5365, at p. 5375), I expressed form of education which prepares for a the view that education provided by the qualification for a particular profession, State was not a service within the meaning trade or employment or which provides the of those articles because it was not provided necessary training and skills for such a 'for remuneration'. I remain of that view in profession, trade or employment.. . , the absence of further argument to the whatever the age and the level of training of contrary. the pupils or students, and even if the training programme includes an element of general education' (paragraph 30).

OPINION OF SIR GORDON SLYNN — CASE 235/87

Different considerations apply if the CGRI and the French Government contend non-nationals in question can derive rights that Article 12 is inapplicable because she is from Article 48 of the Treaty as specifically herself a worker. The Commission's position implemented by the Regulation. is that she can claim both under Article 7 as a worker in her own right and under Article 12 as the child of a migrant worker.

Article 7 of the Regulation provides that a worker who is a national of a Member State in the territory of another Member State Article 7 of the Regulation confers rights on 'shall enjoy the same social and tax 'workers'. The order for reference does not advantages as national workers' (paragraph find specifically that she is a worker, merely 2) and 'shall also, by virtue of the same that she has taught rhythmic dance at right and under the same conditions as Namur since 1983 and that she continued national workers, have access to training in her studies at any rate until 1985 by when vocational schools and retraining centres' she had applied for the course in issue. (paragraph 3).

MATTEUCCI v COMMUNAUTÉ FRANÇAISE OF BELGIUM

Even if she was not so dependent, it seems In Lair, the Court accepted that a main- to me that Article 48 in paragraphs 3 (a) tenance and training grant for university and (b) gives her the right, even though studies leading to a professional qualifi- already in Belgium, to accept an offer of cation constituted a social advantage within employment actually made and to move the meaning of Article 7 (2) since social freely within Belgium for that purpose. The advantages are 'all those which, whether or right of the children of migrant workers to not linked to a contract of employment, are take up employment in the Member State generally granted to national workers where they live seems to me (despite the primarily because of their objective status as limitation in Article 11 to dependants and workers or by virtue of the mere fact of children under 21) to be recognized also by their residence on the national territory and Article 1 of the Regulation which provides the extension of which to workers who are that: 'Any national of a Member State shall, nationals of other Member States therefore irrespective of his place of residence, have the seems suitable to facilitate their mobility right to take up an activity as an employed within the Community' (Case 122/84 person, and to pursue such activity, within Scrivner v Centre public d'aide sociale de the territory of another Member State . . . '. Chastre [1985] ECR 1029).

OPINION OF SIR GORDON SLYNN — CASE 235/87

It is argued, however, that even if Miss Matteucci is a worker and the course of studies proposed is linked to her previous If it is such an establishment, then for the employment, the scholarship should not be reasons I gave in my Opinions in Lair and regarded as a social advantage; it is not a Brown I consider that maintenance grants general measure but one of only three given are covered and that, particularly in view of annually. I do not accept this limitation. In the restrictive nature of 'vocational school', Case 65/81 (Reina v Landeskreditbank there is no obligation to show that the

MATTEUCCI v COMMUNAUTE FRANÇAISE OF BELGIUM

course to be followed is connected with the second paragraph of Article 12 showed that worker's previous activity as a worker, given the article was 'intended to encourage the aim of the Regulation to improve special efforts, to ensure that the children workers' living and working conditions and may take advantage on an equal footing of to promote their social advancement (the the education and training facilities third recital thereto), given the express available' (paragraph 8). It deduced that the reference in Article 7 (3) to retraining, and article therefore referred 'not only to rules given the Court's acceptance in Lair that relating to admission, but also to general periods of professional activity can be measures intended to facilitate educational interrrupted by periods of training, attendance' (paragraph 9). retraining and refresher courses.

I reject the argument advanced that the reference in Casagrande to 'general If Miss Matteucci is not a worker at all but measures' renders Article 12 inapplicable to is a dependant seeking to rely on Article exceptional or limited scholarships. I 7 (2) through her father, then it seems to consider that the phrase was intended to me that she is entitled to the benefits of the comprehend all State measures relating to Belgian educational system on the same educational attendance, and not only to basis as the children of Belgian workers in those of wide application. Belgium, subject to the argument, which I deal with later, based on the fact that the course does not take place in Belgium.

particular vocational course, or even for the Commission's submission to the effect general university education, then, as the that a child of a migrant worker can always Commission contends, the child of a rely on Article 12 to claim to be admitted to migrant worker has the same right and on the State's educational, apprenticeship and the same terms. This principle should apply vocational training courses under the same from the beginning of school to the conditions as the nationals of that State, if completion of the types of education the child is resident in that State. It may specified and is not necessarily excluded seem strange that a child of a migrant because at some stage the child has been worker who is an adult should, on the basis employed. of the Commission's argument, acquire rights to education not open to workers in the light of the Court's judgments in Lair and Brown according to which the rights to education under Article 7 (2) are limited to courses where there is a link between the previous occupation and the studies in question. On the other hand if mobility and integration of workers and their families is to be encouraged, discrimination on the grounds of nationality against the children of migrant workers is clearly contrary to the If the child is a worker and can successfully intention of the Regulation. claim the benefits of Articles 7 (2) or 7 (3) then he does not need to claim as a child. If he works occasionally but does not qualify as 'a worker' then, as I see it, he can claim as a child. The difficult question arises if he is a worker but cannot show that the proposed course is linked to his previous employment for the purposes of Article 7 (2) or if he fails in his claim as a worker for some other reason.

In my opinion, it is clear that if one Member State arranges for its nationals to undertake courses in another Member State, To the extent that such agreements are not which if they were held in that Member compatible with this Treaty, the Member State would constitute social advantages State or States concerned shall take all (Article 7 (2)), training in vocational appropriate steps to eliminate the incompati- schools or retraining (Article 7 (3)), or bilities established . . . " general education, apprenticeships or voca- tional training courses (Article 12), then those courses, albeit held in another Member State, respectively fall within Articles 7 (2), 7 (3) or 12. They are to be seen as part of the educational system of the State. The argument that Article 12 cannot apply because the child will no longer be resident in the State is untenable. Residence in the Member State is a condition of This article is, in my view, clearly not acceptance for the course not for its relevant since it only applies to treaties completion. Were it otherwise no child between Member States and third countries, could claim to take part in a university which is not the case here. course held, for example, partly in an English and partly in a French university or institution providing vocational courses.

It is plain, as the Commission accepts, that cultural exchanges and agreements between Member States to achieve such exchanges The last problem, raised by the CGRI and can make a significant contribution to the French Government, relates to the fact mutual understanding and to the devel- that these scholarships are made available opment of inter-Member State relations. On under a bilateral treaty pre-dating the the other hand, and even though culture, Treaty of Rome and styled a 'cultural like education, may not be specifically agreement'. The French Government seeks referred to in the Treaty, Treaty provisions to rely on Article 234 of the Treaty which may still have their effect (Casagrande, para- provides : graphs 12 and 13; Gravier, paragraph 19).

In my opinion, even though fully accepting In Member States, Community law has that Member States may wish to arrange primacy; if discrimination on the grounds of exchanges of students who can both bring nationality is outlawed in a particular area, their own national culture and absorb that the Member State against which an indi- of the Member State to which they go, vidual can insist on the rule of non-discrimi- nationality per se cannot be accepted as the nation being applied must avoid taking steps test in connection with vocational training which discriminate on grounds of as defined in Gravier or the other courses nationality. referred to in Articles 7 and 12 of the Regu- lation. 'Cultural' in relation to this kind of agreement is in any event an elastic term. Where the exchange is of students of, e.g. technology or science, 'cultural background' may be less important than attainments in technology or science for the purposes of deciding candidates for the exchange. However, even if it is wished to let those with a background in Belgium see Germany and those with a background in Germany see Belgium and to bring the cultures of those States with them, it seems to me that it cannot be said of a candidate born and wholly educated in Belgium, that she cannot be eligible for such a scholarship, solely on the grounds of her nationality, on the basis that she is not someone who has experience or understanding of Belgian culture. Whether or not (i) migrant workers' Whether there is a better candidate is a children resident in Belgium could rely on wholly different question. Article 12 as against the Federal Republic of Germany, a matter I considered in Humbel, and whether or not, (ii) as the Commission argues it has, the Federal Republic has a duty under Article 5 of the Treaty to do nothing to obstruct the performance of its obligations under Article 12 of the Regu- lation by Belgium (and, therefore, to evaluate on their merits all candidates put forward by Belgium whatever their nationality), it seems to me that, if Miss Matteucci can otherwise rely on Articles 7 or 12 of the Regulation, she is not to be denied by the mere fact that the scholarship in question is provided for study in Germany pursuant to an international agreement between Belgium and Germany. Nor do I think it an answer to Miss Different issues may arise in respect of Matteucci's claim that the scholarships scholarships provided unilaterally by one are provided under an 'international Member State or in respect of arrangements convention' between two Member States made otherwise than by Member States, which was entered into before the EEC issues which it does not seem to me arise on Treaty was signed. the present reference.