C-9/88
ECLI:EU:C:1989:322
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LOPES DA VEIGA v STAATSSECRETARIS VAN JUSTITIE
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 13 July 1989 *
Mr President, Police at The Hague. An administrative Members of the Court, appeal made on 21 October 1985 was also rejected on 17 January 1986. On 11 February of the same year, Mr Lopes da Veiga appealed against that last decision to the Raad van State.
1. The Raad van State (State Council) of the Netherlands has referred to the Court for a preliminary ruling two questions concerning the interpretation, with regard to freedom of movement for workers, of the 3. The Netherlands legislation on the status Act concerning the Conditions of Accession of aliens (Vreemdelingenwet and Vreemde- of the Kingdom of Spain and the lingenbesluit, Article 91 , paragraphs (1) and Portuguese Republic and the Adjustments to (5)) provides that any alien who is a the Treaties of 12 June 1985 (hereinafter national of a State which has acceded to the referred to as 'the Act of Accession'). ' European Economic Community and in respect of which the Treaty of Accession or the provisions implementing that Treaty provide for transitional arrangements is to be treated as a Community national enjoying preferential status only in so far as 2. The facts related in the decision that status ensues from the transitional requesting the preliminary ruling are as measures. Moreover, aliens employed on follows. Mr Lopes da Veiga, a Portuguese board vessels flying the Dutch flag are not national, has been employed since 12 March obliged to hold residence permits inasmuch 1974 as a seaman on board vessels flying the as presence on board a Dutch vessel sailing Dutch flag and operated by a shipping on the high seas is not considered to company, Poseidon BV, based at Delfzijl in constitute residence within Netherlands the Netherlands. Those vessels call on territory for the purposes of the legislation average once or twice a month at ports in relating to the status of aliens. Persons the Netherlands. On 31 March 1983 Mr coming within that category are authorized Lopes da Veiga registered himself in the to stay in the Netherlands during their population register of the municipality of periods of leave. The Hague. He spends his periods of leave in the Netherlands. In its observations the Commission points out that Netherlands income tax and social security contributions 2 are deducted from his wages. On 12 April 4. Before the Raad van State, the 1983, Mr Lopes da Veiga applied for a Netherlands State Secretary for Justice residence permit. His application was argued that Mr Lopes da Veiga did not refused on 28 August 1985 by the Head of work in the territory of the Netherlands and that, under the transitional provisions laid * Original language: French. down in the Treaty of Accession, freedom 1 — OJ L302,15.11.1985, p. 23. of movement for workers would not apply 2 — Observations of the Commission, at p. 2 of the French translation. until 1 January 1993.
OPINION OF MR DARMON — CASE 9/88
5. The Raad van State has therefore of the EEC Treaty is only to apply, in referred to the Court for a preliminary relation to freedom of movement of ruling two questions which in substance workers between Portugal and the other seek to determine, first, whether Article 7 et Member States, subject to Articles 216 to seq. of Regulation (EEC) No 1612/68 219. Article 216(1) defers until 1 January 3 (hereinafter referred to as 'the regulation') 1993 the application in Member States of apply to a national of a State which has Articles 1 to 6 of the regulation in respect of acceded to the Community who is employed Portuguese nationals. An interpretation a on board a vessel flying the flag of a contrario therefore leads to the conclusion Member State by an employer established in that Article 7 et seq. of the regulation, which that State but who does not hold a are not referred to in Article 216(1) of the residence permit and, secondly, whether Act of Accession, have been applicable since such a national may rely on Article 4 of the entry into force of that Act on 1 January Directive 68/360 (hereinafter referred to as 1986. That interpretation is supported by
4 'the directive'). the fact that Article 217 of the Act of Accession lays down special provisions for the application until 31 December 1990 of Article 11 of the regulation, which leads to the inescapable conclusion that Article 7 et 6. In my view, the first question appears in seq. already apply. fact to raise three separate points: Do the transitional arrangements laid down in the Act of Accession allow an individual to rely on the provisions of Community law relating to freedom of movement for 8. The Court has itself already adopted workers in the situation arising in the such a line of reasoning. In its judgment of present case? Must a person who works on 30 May 1989 in Commission v Hellenic board a sea-going vessel flying the flag of a Republic, which concerned the corre Member State for an employer established sponding provisions in the Act concerning in that State be considered as working in the Conditions of Accession of the Hellenic the territory of a Member State? Finally, Republic to the European Communities and how does the fact that no residence permit the Adjustments to the Treaties, 5the Court has been issued by the responsible authority held that: of that State affect the situation?
I propose to examine each of those three questions in turn. 'Those [transitional] provisions sus pended . . . the operation of Articles 1 to 6 and 13 to 23 of Regulation No 1612/68 of the Council . . ., implementing the rights 7. An examination of the transitional guaranteed by Articles 48 and 49 of the provisions laid down in the Act of Accession Treaty, but not the application of Articles enables the first question to be answered 48 and 49, in particular, in regard to without any great difficulty. Article 215 of workers from other Member States who the Act of Accession provides that Article 48 were lawfully employed in the Hellenic Republic before 1 January 1981 and 3 — Regulation (EEC) No 1612/68 of 15 October 1968 on continued to be employed there after that freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475). date or those who were lawfully employed 4 — Directive 68 / 360 / EEC of 15 October 1968 on the there for the first time after that date.' abolition of restrictions on movement and residence within the Community for workers-of Member States and their families (OJ, English Special Edition 1968 (II), p. 485). 5 — OJ L 291, 19.11.1979, p . 17.
LOPES DA VEIGA v STAATSSECRETARIS VAN JUSTITIE
The Court concluded in that case that: consistently held that the concept of 'worker' has a Community meaning.
'Anicie 9 ... of Regulation No 1612/68 ... 12. Thus, in its judgment in Kempf, 9 the is applicable to such workers [from 1 Court held that: 6 January 1981]'.
' ... freedom of movement for workers forms one of the foundations of the 9. I would add that in its judgment in Community. The provisions laying down Peskeloglou, which was also delivered in that fundamental freedom and, more connection with the Act concerning the particularly, the terms "worker" and Conditions of Accession of the Hellenic "activity as an employed person" defining Republic, the Court held that the provision the sphere of application of those freedoms suspending the application of certain articles must be given a broad interpretation in that of the regulation derogated from the regard, whereas exceptions to and dero principle of freedom of movement for gations from the principle of freedom of workers and therefore required a restrictive movement for workers must be interpreted interpretation. strictly'.
7 10. As the Commission has observed, the 13. The Court has already had occasion to rationale of those transitional arrangements rule on the carrying on of professional acti is to prevent a sudden deterioration in the vities outside Community territory. In its 10 labour market due to large influxes of judgment in Walrave and Koch, the Court workers following accession by a new held that: Member State. That is why the suspension of Articles 1 to 6 of the regulation relates to the provisions of Title I on 'Eligibility for 'By reason of the fact that it is imperative, employment'; it cannot be extended to the rule on non-discrimination applies in Title II on 'Employment and equality of judging all legal relationships in so far as treatment'. As soon as the Act of Accession these relationships, by reason either of the has come into force workers who are place where they are entered into or of the nationals of the new Member State and who place where they take effect, can be located 11 are already employed in the territory of one within the territory of the Community'. of the Member States of the Community must be able to enjoy the freedoms which the Treaty guarantees. That case, the Court will recall, involved a provision in the rules of the Union cycliste internationale and one question raised was
11. The second point requires a definition 8 — Judgments of 23 March 1982 in Case 53/81 Levin v Staats- of the concept of a worker in the territory secretaris van Justitie [1982] ECR 1035. of 11 July 1985 in Case 105/84 Foreningen af Arbejdsledere i Danmark v of a Member State as used in particular in Danmols Inventar [1985] ECR 2639, and of 3 July 1986 in Articles 7, 8 and 9 of the regulation. It is Case 66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121, paragraph 16. unnecessary to recall that the Court has 9 — Judgment of 3 June 1986 in Case 139/85 Kempf v Staats- secretaris van Justitie [1986] ECR 1741, paragraph 13. 6 — Judgment of 30 May 1989 in Case 305/87, cited above. 10 — Judgment of 12 December 1974 in Case 36/74 Walrave v paragraph 16. Umon cycliste internationale [1974] ECR 1405. 7 — At p. 10 of the French translation. 11 — Paragraph 28.
OPINION OF MR DARMON — CASE 9/88
whether it mattered whether the sports employment which formed the basis of that competition in question occurred within legal connection was carried on outside the Community territory or outside it. Community. In his Opinion which he 15 delivered in that case, Mr Advocate General Capotorti stated that the decisive 12 criterion was not the place where the 14. In its judgment in Prodest, the Court activity was carried out but the links existing confirmed that line of reasoning, explaining between the worker and the social security that institution of a Member State.
' ... activities temporarily carried on outside 16. It should also be mentioned that Regu the territory of the Community are not lation (EEC) No 1408/71 lays down special sufficient to exclude the application of that provisions in order to determine the social principle, as long as the employment legislation applicable to a person pursuing relationship retains a sufficiently close link an occupation on board a vessel flying the with that territory'. flag of a Member State (Article 13(2)(b) and Article 14(b)). The legislation relating to social security therefore necessarily applies The Court then went on to state that to workers on board sea-going vessels flying the flag of a Member State.
' ... a link of that kind can be found in the fact that the Community worker was 17. I have already pointed out in the engaged by an undertaking established in present case that Mr Lopes da Veiga was another Member State and, for that reason, employed by an undertaking established in was insured under the social security scheme the Netherlands, that he paid social security of that State, and in the fact that he contributions and income tax in that State continued to work on behalf of the and, finally, that he had registered himself Community undertaking even during his on the communal register at The Hague. 13 Those circumstances appear in my view to posting to a non-member country'. constitute a sufficient connection with the territory of a Member State and it is therefore immaterial that the activity was 15. In the field of social security, the Court, pursued on the high seas, that is to say, in its judgment in Bozzone, 14 a case outside the territory of the Community. concerning the refusal by a Belgian social security institution to take into account insurance periods completed by an Italian worker in the former Belgian Congo, 18. Moreover, the view expressed by the considered the application of Community Netherlands Government to the effect that law to be justified in view of the legal the carrying on of an activity on board a connection between the worker and the sea-going vessel precludes reliance upon the social security institution of the Member principle laid down in Article 48 of the State concerned, even though the paid Treaty and the legislation adopted for its implementation is quite separate from the existence of the transitional arrangements in 12 — Judgment of 12 July 1984 in Case 237/83 Prodest vCaisse primaire d'assurance maladie de Paris [1984] ECR 3153. the Act of Accession and would result in the 13 — Paragraphs 6 and 7 of the judgment. general exclusion, not only of the 14 — Judgment of 31 March 1977 in Case 87/76 Bozzone v Office de sécurité sociale d'Outre-Mer [1977] ECR 687, paragraph 21. 15 — [1977] ECR 687, at p. 706.
LOPES DA VEIGA v STAATSSECRETARIS VAN JUSTITIE
Portuguese national concerned in the 21 . The third point concerning the fact that present case but of all Community nationals, no residence permit has been issued may be from the enjoyment of the relevant dealt with more quickly. The Court has held freedoms guaranteed by the Treaty. In that in a line of decided cases that the issue of a respect, if the activity in question were residence permit is purely declaratory in assumed to have no connection with the nature. In its judgment in Royer, the Court territory of the Netherlands, it is difficult to stressed that the right of nationals of a see with what other territory it could be Member State to enter the territory of connected. another Member State and to reside there for the purposes intended by the Treaty
19. Mr Advocate General Mischo, in his 16 Opinion delivered in Case 3/87, did ' ... is acquired independently of the issue of wonder whether a residence permit by the competent authority of a Member State ... '
"... a worker who embarks, in one Member State, on a vessel registered in another and went on to add that: Member State in order to fish in waters beyond the 12-mile limit of that other Member State without ever going ashore, who is not affiliated to the social security 'The grant of this permit is therefore to be scheme of that country, who is paid in the regarded not as a measure giving rise to currency of his country of origin and who, rights but as a measure by a Member State at the end of his fishing trip, returns directly serving to prove the individual position of a to a port in his own country is actually national of another Member State with 9 exercising the right to move freely within regard to provisions of Community law'. 1 the territory of another State ... or to stay in another Member State for the purpose of 17 employment there ... ', 22. I accordingly take the view that the first question referred to the Court must be answered in the affirmative. but the circumstances in the present case are quite different from those in the case considered by Mr Advocate General 23. The second question relates to the Mischo. application of Article 4 of Directive 68/360. Article 218 of the Act of Accession provides that: 'In so far as certain provisions of [the] 20. Finally, I would point out that maritime directive ... may not be dissociated from transport is completely subject to the those of Regulation (EEC) No 1612/68 application of Articles 48 to 51 of the whose application is deferred pursuant to Treaty, as the Court has ruled in the case of Article 216, the Portuguese Republic and 18 Commission v French Republic. the other Member States may derogate from those provisions, to the extent necessary for 16 — The Queen v Minitlry of Agriculture, Fisheriesand Food, ex pane Agegate Limited; Opinion delivered on 18 November 19 — Judgment of 8 April 1976 in Case 48/75 [1976] ECR 497, 1988. paragraphs 32 and 33; see also the judgments of 14 July 17 — Paragraph 60 of the Opinion. 1977 in Case 8/77 Sagulo, Brenca and Bakhouche [1977] 18 — Judgment of 4 April 1974 in Case 167/73 Commission v ECR 1495, paragraph 4, and of 3 July 1980 in Case france [1974) ECR 359, paragraphs 32 and 33. 157/79 Regina v Pieck [ 1980] ECR 2171, paragraph 8.
OPINION OF MR DARMON —CASE 9/88
the application of the provisions for dero up an activity in that State as an employed gation which are laid down in Article person (Title I of the regulation) and the 216 ... '. I have already mentioned that right to reside in the territory of that State Article 216 suspends the application of Title in order to continue working there (Title II I of the regulation on 'Eligibility for of the regulation). Therefore, Article 4 of employment', but not that of Title II on the directive is linked both to the provisions 'Employment and equality of treatment', of Title I of the regulation and to those of subject to a number of special provisions for Title II. Since Title II is not affected by the the application of Article 11 of the regu transitional provisions laid down in the Act lation which are not relevant here. It is thus of Accession, those nationals to whom that necessary to examine whether or not Article Title applies must be able to rely on Article 4 of the directive, under which Member 4 of the directive, in accordance with Article States are required to issue residence 1 of the directive. permits to persons to whom the regulation applies (Articles 1 and 4 of the directive), is 25. I would point out, for the sake of affected by the suspension of Title I of the completeness, that the direct effect of regulation. Article 4 of the directive has been 2 recognized by the Court for a long time. 0 24. As far as this point is concerned, it seems to me that the issue of a residence 26. I therefore suggest that the Court permit confirms both the right to enter the should answer the second question along territory of a Member State in order to take those lines.
27. In conclusion, I propose that the Court should rule as follows:
'(1) Article 216(1) and Article 218 of the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties must be interpreted as meaning that Articles 7 to 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, may, subject to the interim conditions governing the application of Article 11 of that regulation as laid down in Article 217 of the said Act, be relied upon by a Portuguese national working as an employed person on board a vessel flying the flag of a Member State for an employer established in that State, even if no residence permit has been issued by the competent authority of that State.
(2) Such a national may rely on Article 4 of Directive 68 / 360 / EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families'.
20 — Cases 48/75, 8/77 and 157/79, already cited.