C-292/89

OPINION OF MR DARMON — CASE C-292/89

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 8 November 1990 *

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employment. It was under such legislation provisions laid down by law, regulation or that the relevant deportation order was administrative action governing the issued. The second question seeks to employment of nationals of that State'. establish what weight the national court Article 5 of the regulation, which, like should attach to the declaration contained Article 1, also occurs in Title I 'Eligibility in the minutes of the meeting of the Council for employment', provides that 'a national at which Directive 68/360/EEC was of a Member State who seeks employment

5. Mere exegesis of the wording of Article an activity as an employed person' in the 48 of the EEC Treaty might lead one to territory of another Member State. doubt whether a national of a Member State According the second recital in the seeking employment in the territory of preamble, that regulation sets out to adopt another Member State has the right to stay 'provisions (. . .) to enable the objectives there by virtue of the freedom of movement laid down in Articles 48 and 49 of the of workers. According to Article 48(3)(a), Treaty in the field of freedom of movement the right to move freely within the territory to be achieved'. Consequently, the case of a of Member States to which Article 48(3)(b) national of a Member State seeking refers is for the purpose of accepting 'offers employment in the territory of another of employment actually made', which is not Member State comes under the free the same as looking for employment. movement of workers. This being the case, However, the Community legislature, which does such a national have a right to reside in is responsible for bringing about, by the territory of the State where he is seeking progressive stages, freedom of movement employment? for workers, 4does not seem to have kept to such an exegesis, which would in fact have given rise to a quite narrow, quite unreal

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Member State may claim the benefit of said States (...) to whom Regulation Article 48(3)(b) of the Treaty, that is to say, No 1618/68/EEC applies'. Consequently, 'move freely' within that territory. But can Community nationals seeking employment, the right to move be equated with a right to who fall, as I have already mentioned, stay? As far as the Treaty itself is within the field of application of Title I of concerned, the right to move within the Regulation No 1612/68, should, prima territory in question is set out in Article facie, be concerned by the conditions 'as 48(3)(b), quoted above, whilst the right to provided in [the] Directive'. Is this the case stay appears in Article 48(3)(c) and is stated in practice? to be for the purpose of employment. Regu­ lation No 1612/68 does not, on the face of it, enable Community nationals seeking employment to be counted among those who qualify for that right to stay. Those provisions of the regulation that refer to 9. According to Article 3 of the directive, seeking employment are to be found, as has 'Member States shall allow the persons already been mentioned, in Title I, which is referred to in Article 1 to enter their expressly entitled 'Eligibility for territory simply on production of a valid employment' whereas actual employment is identity card or passport'. There is no doubt dealt with in Title II. However, it must not that Community nationals seeking be overlooked that the question of the employment in another Member State have movement and residence of persons qual­ the right to enter that State as provided in ifying for free movement by virtue of the Article 3. One aspect of their right of freedom of movement of workers is the movement has crystallized. But what of the subject of special rules in the shape of 6 actual right of residence? Directive 68/360, cited above. Does this measure of secondary legislation contain more precise details concerning the point at issue?

11. Article 6(3) of the directive provides for a more limited right of residence where a 'the right of nationals of a Member State to worker is employed for a period exceeding enter the territory of another Member State three months but not exceeding a year, in and reside there for the purposes intended which case the host Member State is to issue by the Treaty — in particular to look for or a 'temporary residence permit, the validity pursue an occupation or activities as of which may be limited to the expected employed or self-employed persons period of the employment'. Moreover, (...) — is a right conferred directly by the under Article 8 'Member States shall, Treaty, or, as the case may be, by the without issuing a residence permit, provisions adopted for its implementation'. 8 recognize the right of residence in their territory' of certain categories of persons in short-term employment or residing some of the time in the territory of a Member State other than the Member State in which they More recently in the judgment of 23 March are employed or engaged in seasonal work. 1982 in Levin 9the Court stated that However, as far as the right of residence is concerned, no provision of the directive covers Community nationals seeking employment. '. . . the rights deriving from the principle of freedom of movement for workers and more particularly the right to enter and stay in the territory of a Member State are (...) linked to the status of a worker or of a 12. Consequently, perusal of the legislation person pursuing an activity as an employed 10 suggests that a Community national seeking person or desirous of so doing'. employment in the territory of another Member State is entitled, having regard to the express provisions of Regulation No 1612/68, to move within the territory 14. In view of those judgments, it would of that State, as provided in Article 48 of appear to me to be incorrect to argue, as the the Treaty, and that Directive 68/360 German Government does, that a formally sanctions his right to enter that Community national seeking employment in territory. In contrast, no provision of that directive, or of any other piece of 7 — Judgment of 8 April 1976 in Case 48/75 Rover [1976] Community legislation, has formally ECR 497 provided for a right of residence for such a 8 — Paragraph 31, my emphasis Community national. Must the conclusion 9 — Judgment of 23 March 1982 in Case 53/81 Levin v Slaats-

another Member State has no right to stay 'the persons referred to by Article 1 (of in its territory. In my estimation, the Court Directive 68/360), that is to say nationals of has accepted that such a right exists in a Member State who move to another principle, but without specifying its formal Member State in order to find employment, source. In view of the apparent silence of have a minimum period of three months in Directive 68/360, it is more tempting to which to do so; if at the end of that period seek that source in Articles 1 and 5 of they have not found employment, their stay Directive 1612/68 in conjunction with in the territory of that other State may be Article 48(3) of the Treaty. It also still has terminated. However, if during that period to be determined whether the right of the abovementioned persons become residence in question to which the Court dependent on public support (social has referred is embodied in the right to assistance) in that other State they may be move within the territory or whether it is in requested to leave its territory'. some way a necessary corollary thereto. But another observation has to be made, too: the right of residence of a Community 17. That declaration was made by the national seeking employment in another Council, not by one or more Member Member State which has been held to exist States. It was adopted unanimously by the in principle has not been expressly dealt members of the Council. On 17 April 1989 with by detailed rules of Community law, the Council authorized its production in the specifically in secondary legislation. In High Court of Justice, Queen's Bench particular, neither the Treaty nor Directive Division, but it had already been taken into 68/360 formally specify whether the right of account by the Court of Justice in the residence in question is subject to a time- 12 13 judgments in Levin and Lebon. limit. Indeed, precisely this question is raised by the national court. Consequently, the Court must take the process of legal analysis beyond the mere letter of the legis­ 18. When that declaration was adopted, the lation mentioned so far and beyond the proceedings of the Council were governed concise words of its previous judgments. by 'provisional rules of procedure'. According to the first paragraph of Article 18 thereof the principle was that 'the deliberations of the Council shall be covered by the obligation of professional secrecy', while the second paragraph of that article 15. It is at this point that the question arises made it clear that the Council might as to the potential role, in the interpretation 'authorize the production of a copy or which the Court is asked to give, of the extract from its minutes for use in legal declaration in the minutes of the Council 4 proceedings'. 1 Those provisions were taken meeting at which Regulation No 1612/68 over verbatim in Article 18 of the Rules of and Directive 68/360 were adopted. Procedure adopted by the Council on 15 24 July 1979. In contrast, the provisions of Article 7(1) of the latter rules, according to which minutes are to be drawn up of

each meeting of the Council, indicating in Member States represented on the Council, general in respect of each item on the but on a declaration of the Council as a agenda the decisions taken and 'the whole. After stating that it followed from statements made by the Council and those the general structure both of the General whose entry has been requested by a Programmes drawn up in implementation of member of the Council or the Commission', Articles 54 and 63 of the Treaty and of the are new inasmuch as the provisional rules of directives issued in implementation of those procedure to which I have averted made no programmes, that the field of application, mention of statements of the Council. ratione personae, of the measures for Accordingly, the Rules of Procedure in securing freedom of establishment and force when the regulation and the directive freedom to provide services was to be of 15 October 1968 were adopted gave no determined on each occasion without particular status to declarations of the distinction based on the nationality of those Council, simply dealing with the concerned, the Court added that, in so far confidential character of the minutes in as the practice of the profession of which such declarations were entered. veterinary surgeon was concerned, this idea Consequently, it appears difficult to infer was therefrom the essential information as to the legal effects of the declaration in question. 'fully confirmed by a declaration concerning the definition of the persons covered by the

22. In the judgment of 15 April 1986 in 26 July 1966 that: 20 Commission v Belgium, the Court had to answer the following argument put forward 'The scope and effect of the [said decision] by the defendant Member State. Since, must be assessed in the light of its terms and according to a statement inserted in the therefore cannot be restricted by reser Council minutes when Directive 21 vations or statements which might have been 77/187/EEC of 14 February 1977 was made in the course of drawing up the adopted, Member States undertook to

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This is because, under the Treaties, no competence is conferred on the Council to give interpretations of the treaties. Of course, for 'the true meaning of rules of Community the purposes of its own legislative activity it law can be derived only from those rules falls to it to interpret the treaties in order to themselves, having regard to their context' determine the context of its action. But it cannot transform the means into an end so as to formulate interpretations which would subsequently be regarded as binding on the Court of Justice or on the national courts. and that meaning 'cannot therefore be Besides, I consider that a declaration made affected' by a statement such as that 22 by the Council after the event concerning a invoked by Belgium. measure of secondary legislation adopted in the past could not claim the credit which attaches solely to documents preparatory for the adoption of such a measure and which

It means 23 — Judgment of 23 February 1988 in Case 131/86 United that it is impossible for the Council to Kingdom v Council [1988] ECR 905. 24 — Paragraph 26. supplement, by means of a declaration 25 — Paragraph 27. entered in its minutes, provisions of the

relevant measure of secondary legislation. 28. Analysed thus, the declaration referred Such a declaration cannot constitute a to in the national court's second question parallel means of legislation. This would, does not seem to me to afford the slightest indeed, be the outcome if the content of useful guidance for determining the extent such a declaration were to be allowed to be to which Community law provides for a added to the provisions of a regulation or a right of residence on the part of Community directive or to fill a lacuna therein, if it were nationals seeking employment in the to be accepted that it was possible for rules territory of another Member State.

In fact, in its minutes. This is all the more incon the declaration embodies, or rather sets out ceivable in my view because in principle to embody, exhaustive legal rules on the Council minutes are secret and only the residence in question, thereby filling a gap Council can authorize their production in in the Community rules which do not national judicial proceedings. provide, whether in the Treaties or in secondary legislation, for a time-limit or for any limit as to financial cover by way of public assistance. This form of 'parallel

provisions. It must be added, in order to take account of the judgment in the case of Vincent Auer, cited above, that such a declaration cannot be the only reference and that it must be used in conjunction with others, in the sense that it can be verified whether it confirms the interpretation 29. If reference may not be made to that ensuing in other respects from the tenor of declaration, it must be observed that, even the provisions in question and from their after recourse to the resources of interpret context. ation, no provision of Community law can

be regarded as governing the right of could no longer rely on being a Community residence which the Court has recognized as national seeking employment for the existing in principle. Must it therefore be purposes of the rules on the free movement concluded that this situation leaves each of workers would be peculiar to each Member State free to settle these rules in its Member State, the point would be reached territory as far as it is concerned? The where persons in identical situations might case-law of the Court seems to answer this be treated differently as regards the question unambiguously in the negative. In enjoyment of rights arising under the the field of the free movement of workers, freedom of movement of workers; in other the Court stated in the judgment of words, there would be variation from one 26 19 March 1964 in Hoekstra (née Unger) Member State to another in the field of that the terms 'worker' and 'activity as an application ratione personae of the relevant employed person' may not be defined by Community rules, contrary to the case-law reference to the national laws of the of the Court. The fact that, as the Court Member States but have a Community was informed at the hearing, a number of meaning. The Court repeated that view in Member States apply the same minimum the judgment in Levin (cited above), adding time-limit of three months, thus complying that: with the political agreement represented by the declaration adopted by the Council, does not alter in that respect the legal analysis resulting from the case-law. Besides, the application by the United Kingdom of a minimum time-limit of six 'If that were not the case, the Community months seems to me to provide a perfect rules on freedom of movement for workers illustration of the risks which I mentioned would be frustrated, as the meaning of of a right of residence with a non-uniform those terms could be fixed and modified content, albeit coming under a fundamental unilaterally, without any control by the freedom under the Treaty, that of the free Community institutions, by national laws movement of workers. Consequently, which would thus be able to exclude at will reference to national laws is absolutely certain categories of persons from the inconceivable in the field with which we are benefit of the Treaty'. 27 concerned.

cannot be to confer greater rights on a procedure for finding the plans incompatible person who has never been employed in the with the common market, or of failure on State in question than on the person who is the Commission's part to take such action, employed there on temporary or seasonal the Court pointed out that according the work. Article 6(3) of Directive 68/360, cited wording of Article 93 of the Treaty the above, provides that the right of residence Commission had to be informed of aid plans of a worker employed for a period 'in sufficient time to enable it to submit its exceeding three months but not exceeding a comments' and that if it considered the plan year in the service of an employer in to be incompatible with the common market another Member State can be limited to the it was bound to initiate the contentious expected duration of that employment. procedure 'without delay', since the Article 8 of the directive also gives rise to Member State concerned could not put the limitations as to the right of residence of proposed measures into effect until that certain categories of worker in view of the procedure had resulted in a final decision. temporary or seasonal nature of their The Court went on to observe that whilst

the Commission could not be regarded as acting with proper diligence if it omitted to define its attitude within a reasonable period. The Court concluded that it was appro priate to be 'guided by Anieles 173 and 175 31. We have now reached the conclusion of the Treaty which, in dealing with that it is necessary to limit to some extent comparable situations, provide for a period 29 the right of residence of a Community of two months'. When that period had national seeking employment. But how can expired, the Member State concerned might that limitation be determined? Would it be implement the plan after giving prior notice conceivable for the Court itself to determine to the Commission. the maximum time-limit beyond which a Community national who has not yet found employment in another Member State may no longer rely on a right of residence there? Rejecting the idea of fixing a time-limit ex nihilo, which falls within the competence of the legislature, it may be asked whether the approach which the Court adopted in the judgment of 11 December 1973 in Lorenz 28 32. However, in this case application of might not afford a solution. Asked about similar reasoning would come up against a the effects, in the context of the prior major difficulty owing to the absence of any control of State aid, of delay on the part of clearly comparable situation to be used as the Commission in submitting its comments the basis, as the period provided for in on aid plans notified to it or in initiating the Articles 173 and 175 were used to determine the reasonable time imposed on the 28 — Judgment of II December 1973 in Case 120/73 Lorenz v Germany [ 1973] ECR 1471 29 — Paragraph 4.

Commission under Article 93. The right of 33. I would add that it would appear to me residence of a Community national seeking to be difficult to accept the reference to the employment in another Member State does three-month period made in the Council not lend itself readily to useful comparisons minutes. Apart from the fact that it would in the field of Community law. Reference, be inconsistent to end up by giving legal as suggested by the United Kingdom, to the effects to a declaration which, as I have three-month period laid down in Article 69 already stated, seems to me to be devoid of

host State. I would point out, moreover, For my part, I am unwilling to do that. that persons with no entitlement to unem ployment benefit in their Member State of origin — because, for instance, they are seeking their first jobs — may perfectly well be entitled to reside in the host State as 34. Consequently, there are no incon persons seeking employment. Moreover, the testable references which would enable a three-month period referred to in Article concept of a reasonable period to be 8(1)(a) of Directive 68/360, to which the adopted without abandoning the task of United Kingdom also refers, does not seem specifying it completely to the Member a more convincing guide. The fact that the States. Admittedly, in previous judgments Member States, without issuing residence the Court has also referred to reasonable permits, recognize that workers pursuing an periods without specifying them by means activity as employed persons have a right of of comparisons with periods lawfully and residence where the activity is not expected expressly laid down. For instance, in the to last for more than three months does not, judgment of 7 July 1976 in Watson and to my mind, provide logical support for a Beimanti the Court stated, as regards the solution under which a person who has been period within which the arrival in a Member seeking employment in another Member State of nationals of another Member State State for three months and a day no longer must be reported, that has the right to stay there.

But where, as in this case, it is a question as 36. Consequently, one may legitimately ask to whether or not a person qualifies for the whether the only outcome compatible with right of residence provided for in principle the present state of Community legislation by Community law and, not, as in the case and justified by the heed which must of Watson and Belmann, a question of the certainly be paid to the development of the extent to which rules governing the exercise employment market over the last two of that right which do not directly call in decades might not lie in the adoption of a question the right of residence conferred by realistic approach to the time-limit for the the Treaty may be applied under national right of residence. Would not an approach legislation, it seems to me that the legal be possible whereby this right is vested in a disadvantages of referring to limits, the Community national seeking employment in reasonableness of which is more in the the territory of another Member State so nature of a wish than a definition, are long as he is actively, persistently and excessive. In reality the national legislature seriously engaged in this endeavour? In that would be left with the barely disguised task light, repeated failure to make himself of determining the extent of the right of available to take up offers corresponding to residence of persons seeking employment, his personal abilities and skills might, for which would mean the Court's turning its example, be taken into account by the back on its former statements about the national authorities so as to prompt them to need for a Community definition of the ask him to leave the country, without his field of application of the rules on the free entitlement under the host State's legislation movement of workers. to public assistance being able to justify such a measure independently of the consider­ ations connected with the fact that he is not actually looking for employment.

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residence should in some way be linked with bility of an abuse, from the point of view of 'effectively and genuinely seeking an social advantages, of a protracted stay in effective and genuine activity'. Would there another Member State does not seem to be be serious obstacles to adopting such an capable of paying a determining role in analysis? shaping the solution to be adopted in this case.

34 — Judgment of 18 June 1987 in Case 316/85 Centre public d'aide sociale de Courcelles v Lebon [1987] ECR 2811, point 41. Moreover, I take the view that even if it 3 of the operative part. 35 — Cf. the judgment of 2 February 1989 in Case 186/87 were to involve the national authorities in Cowan Trésor Public [1989] ECR 195. more exertion than that involved in simply

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43. This latest position of the Council with regard to three particular categories of Community nationals does not appear to me to enable the requirements laid down by 42. Before bringing this Opinion to a close, Community law with regard to another it is necessary to advert to certain recent category, namely persons seeking legislative developments relating to the right employment, to be prejudged. Admittedly, of nationals of one Member State to reside as regards the latter category, the in another Member State. On 28 June 1990, declaration adopted by the Council on the Council adopted three directives on, 15 October 1968 did refer, at least by respectively, the 'right of residence', 36 the implication, to a requirement of sufficient 'right of residence for employees and self- resources. However, as we have seen, that employed persons who have ceased their declaration could not be taken into occupational activity' 37 and the 'right of consideration for the purposes of interpret­ residence for students'. 38 The first directive ing Community law with regard to the right provides that Member States are to grant of residence at issue in this case. I can see the right of residence to nationals of no legal reason for introducing, on basis this Member States who do not enjoy this right time of the directives of 28 June 1990, a under other provisions of Community law, requirement that Community nationals with provided that they are covered by sickness respect to whose right of residence the Council has as yet omitted to lay down any rules should have sufficient resources. 36 — Directive 90/364/EEC, OJ 199C L 180, p. 26 37 — Directive 90/365/EEC, OJ 1990 L 180, p 28. Besides, it would not be possible for the 38 — Directive 90/366/EEC, OJ 1990 L 180, p. 30. Court to lay down a requirement that a

39 — Case 139/85, cited above, paragraph 15.

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