C-357/89

Mr President, Between her arrival in the Netherlands and Members of the Court, commencing her studies, more specifically from 5 to 21 March 1986, the plaintiff worked as a waitress for 12 days, five hours per day, under what is known as an 'oproep- contracť ('on-call contract'). She did not officially apply for a residence permit until 1. The Netherlands College van Beroep 11 December 1987 and it was issued to her Studiefinanciering (Study Finance Tribunal) on 9 March 1988 on the basis of the fact has asked the Court for a preliminary ruling that she was living with her Dutch husband pursuant to Article 177 of the EEC Treaty whom she had married on 16 October on the interpretation of Articles 7 and 48 of 1987. the EEC Treaty as well as Article 7(2) of Council Regulation (EEC) N o 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475). The questions were raised in an action brought by Ms V. J. M. Raulin, the plaintiff, against the Minister van Onderwijs 3. On 5 December 1986 the plaintiff en Wetenschappen (Minister for Education submitted, pursuant to the Wet op de and Science), the defendant, concerning the Studiefinanciering (Law on Study entitlement of a student from another Finance — "WSF') of 24 April 1986, » an Member State to the award of Netherlands application for study finance to the Minister study finance. van Onderwijs en Wetenschappen ('the Minister') in connection with her studies at the Gerrit Rietveld Academic 2 On 11 May 1987 this application was rejected for the period from October 1986 to December 1987 on the grounds that the plaintiff was The facts and procedure not of Netherlands nationality and did not belong to the group of people treated as Netherlands nationals under Article 7 of the WSF. On 3 July 1987 the plaintiff lodged a formal objection with the same Minister against the aforementioned rejection of her application, and on 25 September 1987 the 2. The plaintiff, who is of French Minister rejected her objection, again on the nationality, settled in the Netherlands at the ground that the plaintiff could not be end of 1985 without registering at the Aliens' Office and without a residence 1 — Nederlands Staatsblad 1986, 252. This law came into force permit. On 1 August 1986 she began a on 1 October 1986. For a brief summary see the Report full-time course of studies (visual arts) at the for the Hearing, p. 1-1030. 2 — The WSF makes a distinction between a non-recoverable Gerrit Rietveld Academie in Amsterdam. basic grant, awarded regardless of the financial situation of the students' parents, and supplementary finance, which usually consists of an interest-bearing loan. The plaintiff * Original language: Dutch. applied for both a grant and supplementary finance.

5. Does the requirement that a migrant 2. Is the fact that a person has exercised or student have a residence permit in order sought to exercise an economic activity to qualify for a system of allowances for for only a short time, for example in the the cost of studies in a situation in which framework of an " oproepcontracť' no such requirement is imposed on ("on-call contract"), relevant to the students of the host State constitute answer to the question whether the acti­ discrimination prohibited under Article 7 vities are on such a small scale as to be of the EEC Treaty? regarded as purely marginal and ancillary so that the provisions on freedom of movement for workers do not apply? 6. Does a national of a Member State who 3 — Article 3(1) of lhe Royal Decree of 22 September 1986 is admitted to vocational training in (Nederlands Staatsblad 1986, 477) provides, pursuant to Article 7 of the WSF, inter alia that: another Member State derive from the The following persons shall be treated as Netherlands relevant provisions of Community law a nationals for the purposes of study finance pursuant to Chapters II and I I Iof the l a w . . . right of residence in that other Member c) persons... over 21 who have been authorized to reside State in order to be able to undertake in the Netherlands pursuant to Article 9 of the Vreem­ delingenwet (Aliens' Law) . . . . vocational training there? If so, may that Article 9 of the Vreemdelingenwet of 13 January 1965 {Nederlands Staatsblad 1965 40) sutes that: person exercise the right of residence Foreigners in possession of a residence permit shall be whether or not a residence permit has allowed to stay in the Netherlands until the said permit expires. been issued by that other Member State?

Entitlement to the award of study finance on 7. Does a system of study finance (such as the basis of status as a migrant worker the Netherlands WSF), in which no distinction is made between an allowance for the cost of access to the course and an allowance for main- tenance costs, fall wholly or in part 5. Article 7(2) of Regulation (EEC) No within the scope of the EEC Treaty (and 1612/68 states that a national of a Member in particular Articles 7 and 128 thereof)? State who is working in another Member State shall enjoy, in the territory of the latter Member State, the same social and tax advantages as national workers. 4 The Court has consistently held that study finance must be considered to be a social advantage If it falls within the scope thereof only in within the meaning of that provision. 5 In part, does the fact that the system of the present case, however, the question is study finance does not make the whether the plaintiff can in actual fact be aforesaid distinction mean that a regarded as a migrant worker within the national of another Member State who, meaning of Article 48 of the EEC Treaty for example, goes to undertake voca- and, in particular, within the meaning of tional training in the Netherlands should Regulation (EEC) No 1612/68. Did she be granted the entire amount of the ever possess this status (the first and second allowance towards the education contri- questions) and, if so, did she subsequently bution (as for example referred to in retain that status during her studies at the Article 12(l)(c) of the Netherlands Gerrit Rietveld Academie (the third and WSF) or only (a proportionate part of) fourth questions)? the amount to which the person concerned would otherwise have been entitled if the provisions of the WSF .concerning the amount of study finance 6. As already mentioned, between her to be granted were applied to him in arrival in the Netherlands at the end of their entirety?' 1985 and the start of her studies on 1 August 1986, more specifically from 5 to 21 March 1986 inclusive, the plaintiff worked as a waitress for 12 days, five hours

a day, that is to say a total of 60 hours. The otherwise national legislation would be able work was performed under what is known arbitrarily to exclude certain categories of as an 'on-call contract' ('oproepcontraď), persons from the scope of the EEC Treaty. 8 which the plaintiff concluded with Furthermore, the Court has always stressed Parkhotel Exploitatie Maatschappij BV for that the concept cannot be interpreted the period from 5 March to 3 November restrictively, because it defines the scope of 1986. By its first question the national court one of the fundamental freedoms wishes to know whether the nature of the guaranteed by the EEC Treaty. 9 The Court activities of an 'on-call worker' (¿oproep- has consistently held 10 that a migrant kracht) prevents such a person from being worker includes anybody pursuing (or considered to be a worker within the wishing to pursue 11 ) effective and genuine meaning of Article 48 of the EEC Treaty. paid activity which is not on such a small scale as to be purely marginal and ancillary. Furthermore, the Court has held that the concept of worker must be defined in accordance with objective criteria which distinguish the employment relationship by As stated in the order for reference, an reference to the rights and duties of the 'on-call' contract is a very widespread way persons concerned. The essential feature of of employing workers in certain sectors of an employment relationship is that for a activity in which the volume of work certain period of time a person performs depends on the weather or is seasonal. By services for and under the direction of its very nature, work under an on-call another person in return for which he contract is sometimes undertaken only on a receives remuneration. 12 According to the very small number of days per week and/or during a few hours each day. The employer is obliged to pay wages and grant social advantages only in so far as the on-call worker, after having been called on to do so by his employer, has performed work. 6 8 — See, for example, the judgments in Case 75/63 Hoekstra However, if that work is performed, then, (née Unger) [1964] ECR 177, Case 53/81 Levin [1982] ECR 1035, paragraph 11, Case 66/85 Lawrie-Blum [1986] according to the national court, there may ECR 2121, paragraph 16, and, more recently, in Case 344/87 fieöray [1989] 1621, paragraph 11. be said to be the supply of an economic 9 — See the judgments in Levin, paragraph 13, Lawrie-Blum, service for and under the direction of paragraph 16, and Bettray, paragraph 11, cited in footnote another person for which remuneration is 8. received. 7 According to the plaintiff, this 10 — See judgments in Levin, paragraphs 16, 17 and 21, and Bettray, paragraph 13, cited in footnote 8, as well as the activity conferred on her the status of a judgments in Case 139/85 Kemp/ [1986] ECR 1741, paragraph 14, Case 197/86 Brown [1988] ECR 3205, migrant worker within the meaning of paragraph 21, and Case 196/87 Steymann [1988] ECR Article 48 of the EEC Treaty and the 6159, paragraph 13.

case-law of the Court, the nature of the activities on such a small scale as to be legal relationship between the employee and regarded as purely marginal and ancillary", the employer is of no consequence as and adds that the essential feature of an regards the status of worker. 1 3 employment relationship is that 'for a certain period of time' a person performs services for and under the direction of another person in return for which he receives remuneration. 17 Is that the case when a person works only 60 hours?

territory. In Lair the Court nevertheless minimum wage in the sector concerned. H added that abuses are not covered by Community provisions on the freedom of movement for workers and that abuse is involved if a person 'has entered a Member State for the sole purpose of enjoying, after It does not necessarily follow from the a very short period of occupational activity, above that an on-call worker who, like the the benefit of the student assistance plaintiff, worked a total of only 60 hours, system'. 20 must be regarded as a migrant worker within the meaning of Article 48 of the EEC Treaty and Regulation (EEC) No 1612/68. 1 5 The case-law 16 cited above requires that the activities pursued be effective and genuine, 'to the exclusion of From that it can already be deduced, in my view, that a relationship not really entered 13 — Judgment in Case 152/73 Sotgiu [1974] ECR 153, into for the purpose of pursuing occupa- paragraph 5, and the judgments in Lawrie-Blum, tional activity but for the sole purpose of paragraph 20, and Bettray, paragraph 16, cited in footnote 8. obtaining an advantage, such as study 14 — In the judgments in Levin, paragraphs 16 and 17, and finance, which does not stem from the Lawne-Blum, paragraph 21, cited in footnote 8, and in the judgment in Kempf, paragraph 14, cited in footnote 10, the employment relationship itself cannot confer Court held that people employed only on a part-time basis the status of migrant worker; furthermore, or who receive remuneration below the guaranteed wage in the sector concerned may nevertheless be migrant whenever work is performed for a very workers within the meaning of Article 48 of the EEC Treaty and Regulation (EEC) N o 1612/68, provided that the activity pursued is effective and genuine. 17 — The phrase 'for a certain period of time' is clearly not 15 — I am not referring here to the rights set out in Article used in the sense of 'for a stipulated period fixed in advance' (as opposed to a 'non-stipulated period') but in 48(3)(a), (b) and (c), and Articles 1 to 6 of Regulation the sense of 'for some period of time'. (EEC) N o 1612/68.

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OPINION OF MR VAN GERVEN —CASE C-357/89

In the present case the on-call contract was In the judgment in Lair,26 the Court stated concluded for a period of eight months that entitlement to the award of study (from 5 March to 3 November 1986), but finance 'does not depend on the continued it was prematurely terminated, or so I existence of an employment relationship' (paragraph 35), and that it is also 24 -— Köhler E.: Introduction in Blanpain R. and Köhler E. guaranteed to migrant workers who 'are no (eds.): op. cit. longer in an employment relationship' 25 — Blanpain R.: 'General Repon', and Weiss M.: 'German/ in Blanpain R. and Köhler E. (eds.): op. át, pp. 59 and 223 respectively. 26 — Cited in footnote 5.

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The rider added in the case-law of the Court that such a link need not exist when In this context, the national court refers to the migrant worker (always presuming that the third question it has submitted. If the the person involved had acquired such existence of a link between occupational status) is obliged to undertake occupational activity and training is demonstrated, must retraining for another sector, must also be the link — and here I quote — 'always be interpreted in a reasonable manner. As I see between the most recent occupational activity it, a migrant worker who interrupts his and the studies subsequently undertaken, or activity to undertake vocational training may it be between an earlier occupational which is to enable him, on the basis of the activity (whether or not in the host Member foreseeable developments in the sector of State) and the studies in question?*27 This is activity concerned, to secure his chances of

27 — Order for reference, p. 9, first paragraph, final sentence. 28 — However, see also footnote 30.

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O P I N I O N OF MR VAN GERVEN — C A S E C-357/89

16. The Court has consistently held that inequality of treatment of Community 15. The question remains whether, when nationals on grounds of nationality there has to be a demonstrable link between constitutes discrimination prohibited by the studies undertaken and the occupational Article 7 if'it falls within the scope of the activity previously performed, account may EEC Treaty, and that the conditions be taken only of the most recent occupa- governing access to vocational training do tional activity pursued in the host Member indeed fall within that scope. 31 State. 30 — If the third question were nevertheless linked to the acquisition of the status of worker (see footnote 28), I would share with the Commission the view that, given the aim of 'integration' referred to, in that case, too, only the occupational activity pursued in the host Member State must be taken into account (but then 'all' the activities Given the aim underlying Regulation (EEC) pursued in that Member Sute, not just the most 'recent activit/ pursued there, given that it is not a matter here of N o 1612/68 of promoting freedom of determining the continuity between the activity previously movement for workers within the pursued and the studies subsequendy undertaken). 31 — Sec the judgments in Case 293/83 Gramer (1985) ECR 593, paragraph 25, and Case 24/86 Blaizot [1988] ECR 29 — Furthermore, it is generally acknowledged that there is a 379, paragraph 24, as well as the judgments in Lair, causal link between a low level of education and long-term paragraph 12, and Broom, paragraph 15, cited in footnotes unemployment. 5 and 10 respectively.

18. There is then the sixth question, the first 17. Given, as I have already said, that, part of which asks in essence whether the according to the case-law of the Court, the right of residence in the Member State in conditions of access to vocational training which the course of training is pursued (and fall within the scope of the EEC Treaty and for the duration thereof) also constitutes that study finance, in so far as it is intended part of the 'conditions of access to voca- to cover enrolment fees or other costs tional training'. In my estimation the answer pertaining to access to vocational training, is yes. The case-law cited above shows that forms part of such conditions of access, 32 it discrimination is prohibited not only with is clear that any discrimination on grounds regard to the actual or substantive of nationality is prohibited in this context. conditions of access (for example, as The answer to the fifth question must 33 — Judgment in Royer cited in footnote 11, paragraphs 32 and 33. See also the judgment in Joined Cases 389/87 and 32 — Sec the judgments in Lair, paragraph 14 , and Brown, 390/87 Echtcmach and Moritz [1989] ECR 723, para- paragraph 17, cited in footnotes 5 and 10 respectively. graphs 24, 25 and 26.

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OPINION OF MR VAN GERVEN —CASE C-357/89

Seen in this light, I believe that the grant of It also follows from the abovementioned a right of residence has a sufficiently direct case-law concerning the granting of a link with actual access to the course of residence permit (see point 17) that, in study, given that refusal to grant that right answer to the second part of the national makes it impossible to pursue the course in court's sixth question, the right of residence question. Thus, even if all the other access in question, which stems directly from conditions have been fulfilled, and in Article 7 of the EEC Treaty, may not be particular if admission and enrolment for made conditional on possession of a the course of study have been forthcoming residence permit. from the establishment concerned, and the enrolment fee has been paid by or for the student, the student will nonetheless be denied access to vocational training if he does not obtain a right of residence in the 20. Finally, the third part of the sixth Member State where the course is being question concerns restrictive conditions held. In this respect there is a clear which the authorities in the host Member difference between not recognizing a right State may attach to the right of residence of residence on the one hand and not (and to the corresponding residence permit). providing an allowance to cover main- tenance costs (to which the prohibition of

34 — As stated by Advocate General Sir Gordon Slynn in his It follows from the above that a person's Opinion in Case 197/86 Brawn [1988] ECR 3205, at p. 3230. right of residence — pursuant to Article 7 of

It follows from the case-law of the Court cited above that a migrant student enjoys the same rights concerning the award of Furthermore, Member States may subject study finance as a national of the Member the right of residence to specific conditions State in which he pursues his studies when in certain cases which, in accordance with such financial assistance is granted to cover the case-law of the Court, do not fall within enrolment fees or other costs, particularly the scope of that right to non-discrimi- tuition fees, charged for access to the natory access, particularly as regards course. Inasmuch as the assistance granted allowances for maintenance costs, again under the Netherlands system is intended to without prejudice to application of any cover those costs, migrant students from other provisions of Community law. This another Member State must be guaranteed view is confirmed in Council Directive treatment identical to that accorded to 90/366/EEC of 28 June 1990 35 on the students who are nationals of the host right of residence for students which, apart Member State, regardless of the method of from the condition that the student be calculating the assistance or the factors on enrolled in a recognized educational estab- which it is made conditional. On the other lishment for the principal purpose of hand, as Community law now stands, following a vocational training course there, migrant students cannot claim equal also requires that the student demonstrate treatment with regard to the allowance for that he has sufficient resources at his maintenance costs. It is, of course, for the disposal and is covered by sickness national court to determine what proportion insurance in respect of all risks in the host of the study finance covers enrolment fees Member State. This requirement comes or other costs of access to the course. under allowances for maintenance costs, for

3. and 4. A migrant worker retains the status of worker for the purposes of obtaining the advantages referred to in Article 7(2) of Regulation (EEC) No 1612/68 if he interrupts his work to undertake studies which are to enable him to improve his situation in the sector of activity in which he was most recently occupied in the host Member State or if he is obliged, given current or fore- seeable developments in the sector of activity in question, to undergo retraining for a sector of activity other than that in which he was working in order to secure his chances of employment.

5. Article 7 of the EEC Treaty precludes a national of another Member State who has come to undertake vocational training in the host Member State from being required to possess a residence permit in order to qualify for a system of allowances for the cost of studies from which national students benefit in so far as it covers enrolment and tuition fees.

6. A national of a Member State who has been admitted and enrolled for the purposes of pursuing vocational training in another Member State has,

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pursuant to Article 7 of the EEC Treaty, a right of residence and a right to be issued a residence permit confirming that right of residence in pursuance of his recognized entitlement to non-discriminatory access to vocational training. That right of residence (and the corresponding residence permit) may, without prejudice to application of any other provisions of Community law, be granted under restrictive conditions, that is to say accorded for and limited to the duration of the course of study and, as regards coverage of maintenance costs, made subject to related conditions.