C-3/90

BERNINI

OPINION OF M R ADVOCATE GENERAL VAN GERVEN delivered on 11 July 1 9 9 1 *

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OPINION OF MR VAN GERVEN —CASE C-3/90

finance as a non-national, Mrs Bernini lation (EEC) No 1612/68 on the ground ought to have resided in the Netherlands that Mrs Bernini is no longer a member of whilst according to the Minister she was the family of a migrant worker within the resident in Naples. meaning of Article 10(1) of that regulation nor complies with the residence requirement laid down in Article 12.

3. Mrs Bernini appealed against that minis- terial decision to the College van Beroep 4. The national tribunal has referred the Studiefinanciering, that is to say the court following five questions to the Court for a making the reference. In her appeal she puts preliminary ruling: forward the argument that, as a result of her training period from 21 March to 31 May 1985, she became a migrant worker and is therefore entitled to study finance '1. Must a person such as Mrs Bernini, under Article 7 of Regulation (EEC) No where that person has been employed in 1612/68. In the alternative she submits that one Member State (in this case, the the award to her of study finance for the Netherlands) as a trainee in the studies commenced by her constitute a framework of training be regarded, on social advantage in favour of her father subsequently going to study in the within the meaning of Articles 7 and Member State of which he or she is a Articles 10 to 12 of Regulation (EEC) No national, as a migrant worker falling 1612/68. Finally, she relies on Article 12 of within the scope of Articles 48 and 49 of that regulation which, she says, gives her the EEC Treaty and of Regulation direct entitlement to study finance as the (EEC) No 1612/68? child of a migrant worker.

3. What criteria should be applied in order 5. May the grant of study finance (such as to determine whether a child of a that established by the Netherlands Wet national of a Member State who is or op de Studiefinanciering) to a child of a has been employed in the territory of worker within the meaning of Article 7 another Member State is "residing" of Regulation (EEC) No 1612/68 be within that other Member State within considered a social advantage within the the meaning of Article 12 of Regulation meaning of Article 7(2) of that regu- (EEC) No 1612/68? In that connection, lation where the worker in question is it possible that a child who has would otherwise himself have to bear remained outside that other Member wholly or in part the maintenance and State for some years in order to pursue tuition costs of that child and where his studies may none the less be such a grant therefore demonstrably regarded as residing there? entails a financial saving for the worker in question?

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OPINION OF MR VAN GERVEN — C A S E C-3/90

requirement of residence in the Member In those circumstances I must first examine State on children of its own national whether the Court is competent under workers?' Article 177 of the EEC Treaty to rule on the questions referred to it.

5 — Judgment in Case 244/80 Foglia v Novelk [1981] ECR 3045, paragraph 18. 6 — Judgment in Case 338/85 Pardini v Ministero del Commercio con ľtetero [1988] ECR 2041, paragraph 8; see also the decision of the Court in Case C-286/88 Falciola 6. At the hearing the Netherlands [1990] ECR 1-191, paragraph 7, and also the judgment in Foglia v Novello cited above in footnote 5, paragraphs 14 Government confirmed that it had in fact to 15. altered its position as described above and 7 — Judgment in Case 126/80 Salonia v Poidomani and Giglio that the study finance applied for by Mrs [1981] ECR 1563, paragraph 6; see also the judgment of 19 December 1968 in Case 13/68 Salgoil [1968] ECR 453. Bernini in her capacity as the child of a 8 — Cf. paragraph 9 of the judgment in Pardini v Ministero del worker had in the meantime been granted. Commercio con Vfetero, cited above in footnote 6. 9 — See paragraph 6 of the judgment in Salonia v Poidomani and Giglio, cited above in footnote 7, and paragraph 8 of 4 — Case C-308/89 Di Leo [1990] ECR 1-4185. the Falciola decision cited above in footnote 6.

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I am thus proceeding on the assumption that the questions raised in connection with those 9. It. is has already been stated that in the other grounds are, or may be, connected context of the technical training which with the facts or with the subject-matter of preceded her university studies, Mrs Bernini the main proceedings (still pending before worked for a period of ten weeks from 21 the national court) and I shall therefore March to 31 May 1985 as a paid trainee answer them below. As regards questions 3 with a furniture manufacturer in the and 4, which the national court no longer Netherlands and that she consequently considers essential for the dispute pending considers herself to have acquired the status before it, there is no longer any connection of a migrant worker. so that those questions do not call for a

8. Article 7(2) of Regulation (EEC) No remuneration. 12 1612/68 provides that a national of a Member State who works in another Member State is to enjoy in that State the same social and tax advantages as national workers. In accordance with the settled In the Lawrie-Blum and Brown v Secretary case-law of the Court study finance must be of State for Scotland judgments the Court regarded as a social' advantage within the meaning of that article. 10 In the first and 11 — Judgments in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1053, paragraphs 16, 17 and 21; in second questions submitted the national Case 139/85 Kemp/ v Staatssecretaris van Justitie [1986] ECR 1741, paragraph 14; Case 197/86 Brown v Secretary tribunal raises the point whether a student of Stau for Scotland [1988] ECR 3205, paragraph 21; Case such as Mrs Bernini ever had the status of 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621, paragraph 13 and Case 196/87 Steymann v Staats- secretaris van Justitie [1988] ECR 6159, paragraph 13; see also my Opinion delivered m Case C-357/89 Raulin [1992] 10 — See e. g. the judgment in Case 39/86 Lair v Universität von ECR 1-1027, at p. 1-1040, at paragraph 7. Hannaver [1988] ECR 3161, paragraphs 19 to 24 and, specifically in regard to study finance for studies pursued 12 — See the judgment in Case 66/85 Lawrie-Blum v Land abroad, the judgment of 27 September 1988 in Case Baden Württemberg [1986] ECR 2121, paragraph 17, and 235/87 Mattateci v Communauté. Française of Belgium the Bettray and Brown v Secretary of State judgments cited [1988] ECR 5589, paragraph 11. above in footnote 11, at paragraphs 12 and 21 respectively.

At the hearing the representative of the Netherlands Government referred in that connection to the judgment of the Court of 31 May 1989 in the Bettray v Staatssecretaris In the first question submitted the national van Justitie case. 1 5 In that judgment the tribunal wishes to know whether a period of Court held that, notwithstanding the fact ten weeks' salaried employment completed that employment is performed for and by a trainee in the context of occupational under the direction of another person and training is sufficient to confer on that that remuneration is received therefor, such person the status of migrant worker. work 'cannot be regarded as an effective and genuine economic activity if it constitutes merely a means of rehabilitation or reintegration for the persons concerned and the purpose of the paid employment... is to enable those persons 10. It is for the national tribunal, having sooner or later to recover their capacity to regard to the actual circumstances, to assess take up ordinary employment or to lead as whether the work performed during a normal as possible a life' (paragraph 17). certain period is genuine and effective and That case involved work performed in the not. on such a small scale as to be purely context of 'social employment' by persons marginal and ancillary. As I have stated in who as a result of factors inherent in them my opinion of today's date in the Raulin are not in a position to perform work over a case (C-357/89), it must examine whether long period under normal conditions and the employment relationship was not of who, it should be understood, are not 16 such short duration that the person available on the labour market. In its judgment the Court paid much heed to the 13 — The Lawńe-Blum judgment (cited in footnote 12) involved fact that Mr Bettray was not selected on the a preparatory period which formed part of teacher training basis of his capacity to perform a certain and consisted m the giving" of 11 hours lessons per week. At paragraph 19 of that judgment the Court stated that: the activity but that, on the contrary, it is the fact that teachers' preparatory service, like apprenticeships activities which are chosen in the light of in other occupations, may be regarded as practical prepa­ ration directly related to the actual pursuit of the occu­ the capabilities of the persons who are going pation in point is not a bar to the application of Article 48(1) if the service is performed under the conditions of an to perform them in order to maintain, activity as an employed person. re-establish or develop their capacity for 14 — The Brown judgment (cited in footnote 11) concerned work (paragraph 19). activity as an employed person described in the order for reference as pre-university industrial training (paragraph 3). Nevertheless, tlie Court decided that, by virtue of this activity which constituted genuine and effective salaried 15 — Cited above in footnote 11. employment, Brown had acquired the status of migrant 16 — See also the Opinion of Mr Advocate General Jacobs of 8 worker (paragraphs 20 to 23). March 1989, at p. 1637.

11. Similarly in relation to a person who, as shows (which concerned a preparatory part of pre-university industrial training, period forming part of teacher training), the completes a remunerated period of ten trainee must perform services during the weeks with an undertaking, it may be said working period determined by an employer that he was not selected for that for and under the direction of that person employment on the basis of his skills but, on andj in consideration thereof, must receive the contrary, in order to develop his payments which may be regarded as capacity for work. remuneration for the services performed (and for the duties involved in the period of preparatory service) (paragraphs 17 and 18). If the services performed have no or only a slight economic value for the employer (e. g. if the trainee is placed with the employer only at the request of the educational estab- lishment and in accepting the trainee is in fact only acting out of benevolence or for Yet I can scarcely imagine that in Bettray reasons of public relations) and/or should the Court wished to go back on its decision the remuneration, if any, paid by him be in Lawrie-Blum (to which it moreover merely nominal, then there cannot in my expressly refers) and in Brown. In Bettray view be said to be an employment the Court begins its reasoning with a relationship such as to confer the status of reference to its settled case-law according to worker. 17 which the scope of Article 48 and thus the concept of worker must be interpreted broadly (paragraph 11) and reiterates that regard may not thereby be had to the level of productivity of the worker concerned (paragraph 15) or the sui generis nature of the employment relationship (paragraph 16). The scope of the Bettray judgment must Secondly, when the essential characteristics therefore be limited to the specific situation of an employment relationship are in fact of social employment and in that case, the found to exist, the national court, in re-habilitation of drug addicts. examining the question whether the employment relationship has been of suffi- ciently long duration in order not to be regarded as purely marginal and ancillary in the terms of the Court's case-law, may also take account of the actual nature of the training period, perhaps requiring a longer period in the case of work carried out as a trainee which by definition is intended to 12. However, that does not mean that, in develop skills in the workplace, than in the assessing whether a person has acquired the case of normal work. In the case of work status of worker, account may not be taken carried out as a trainee, a period of ten of work performed in connection with a weeks seems to me therefore to be (too) training period. In the first place the short. 18 national court must investigate whether the work performed in the training period 17 — In such a case, where the training period forms part of a course of studies, the trainee should be regarded as a reveals the essential characteristics of an migrant student (with the rights attached to that status) rather than as a migrant worker. employment relationship. For that 18 — In the Brown case (cited above in footnote 11) a period of requirement to be satisfied, as Lawrie-Blum 8 months was considered sufficiently long.

It appears from the terms of the question submitted that the national tribunal regards the requisite continuity between the purpose of the studies and the previous occupational 15. As to the second part of the question activity as subsisting in the case pending (concerning the period which may elapse before it. However, it wishes to know between the previous occupational activity whether a student also retains the capacity and the commencement of studies) I of migrant worker when he has become consider that the 'continuity' requirement voluntarily unemployed, for example by under the Court's case-law is satisfied only ceasing employment wholly of his own if the worker has given up his occupational volition in order to study (first part of the activity (or, if he is unemployed, has given question) and, if so, whether that is still the up his search for a job) with the actual case if he commences studies only some considerable time after cessation of 19 — I infer that from Advocate General Slynn's Opinion in which he noted that Sylvie Lair was in receipt of unem- employment (second part of the question). ployment benefit (at p. 3179 of the Opinion).

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In that case the Netherlands and German Governments used the same argument in order to show that the financing of (medical) studies abroad and in particular in the Member State of origin could not come 18. In Di Leo the Court held, in connection under Article 12 of Regulation (EEC) No with an Italian student residing in Germany 1612/68. The Court rejected that argument (the daughter of an Italian worker also in clear ternis and it may be deduced from resident in Germany) who wished to receive its reasoning that the same argument put her medical training at the University of forward in connection with Article 7(2) of Sienna, that under Article 12 she had a right the same regulation must also be rejected. 21 to financial assistance for training on the same footing as nationals of the Member 20 — In its observations to the Court the Commission, rightly, in my view, pointed out that in the present case only a State of residence even if the training was short period of time expired between employment and the undertaken in the Member State of which commencement of the relevant studies, namely five months, which then in part coincided with the university she was a national. The Court thereby vacation. implicitly acknowledged that the residence 21 — In paragraphs 14 and 15 of that judgment (see footnote 4 above) the Court borrowed arguments from its Matteuci requirement (the validity of which was not judgment (see footnote 10) given on Article 7(2) in coming in paragraph 16 to its conclusion in connection with Article 12. 22 — See paragraphs 5 and 6 above.

That interpretation of the expression 'residing' seems to be me to be in line with the Court's case-law in other fields of Community law, in which the term 'residence' is interpreted as the place where a person's permanent centre of interests is located. 2 4 Evidently not every temporary Entitlement to study finance on the basis of residence in another place can cause the the parent's status as a migrant worker permanent centre of interests to be trans­ ferred there. Whether that occurs is dependent, inter alia, upon the motives for the transfer and the nature of the activities carried on there, as well as the family situation of the person concerned. 2 5 In relation to students the fact that the change of residence is occasioned by, and limited to 20. In the fifth question the national tribunal the duration of, the studies is thus a seeks to ascertain whether the award of material factor. study finance to the child of a migrant worker may be regarded as constituting a social advantage within the meaning of Article 7(2) of Regulation (EEC) No 1612/68 in favour of the parent/migrant worker, if the parent would otherwise be 19. Consequently, the decision by the obliged to bear, wholly or in part, the costs Minister to go back on his earlier view and of maintenance and education of the child to grant Mrs Bernini financial assistance and, if so, whether the child can, in that after all, indicates that the Minister, in my case, claim itself study finance where view rightly, came to the conclusion that a national legislation confers that right only student retains her residence in the host on the child itself, and whether in that Member State in a case such as this, where connection it is material that the child is it is in particular clear that the student's resident in the host Member State, since the close family on which she is dependent national legislation imposes no residence

requirement on the children of national That seems to me to provide a reply to the workers. first part of the question. Contrary to the submissions made in this case by the Belgian and Danish Governments it is clear from the Deak judgment that social advantages conferred by the relevant national legis- lation on the child itself are to be regarded as a social advantage for the parent/migrant worker within the meaning of Article 7(2) on the ground that they are intended to facilitate the freedom of movement for 21. Social advantages within the meaning of workers within the Community. However, Article 7(2), mentioned above, comprise all that is only true, as is stated in Lebon, advantages 'which, whether or not linked to where the worker is still supporting the a contract of employment, are generally child. If that is in fact the case — and that is granted to national workers primarily for the national court to assess — then it because of their objective status as workers seems to me that the total amount of the or by virtue of the mere fact of their study finance must be regarded as a social residence on the national territory and advantage within the meaning of Article whose extension to workers who are 7(2). nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community. 2 7 On the basis of that consideration it was held in that judgment (paragraph 24) that a Member State whose legislation provides benefits for young persons seeking work on the grounds of their personal situation, 28 cannot refuse them to the dependent 22. The national tribunal also wishes to children of a worker who is a national of know whether the child of a migrant another Member State on the basis that the worker, in the event that the award of study children are nationals of a non-Member finance is a social advantage in favour of State. In the Lebon judgment the Court the parent within the meaning of Article stated that a social advantage provided for 7(2), can claim a grant in its own right, and, by the legislation of the host Member State in the affirmative, whether entitlement may which guarantees in general terms the subsist irrespective of any residence minimum means of subsistence can be requirement in the case of the child. refused to a child (in that case of more than 21 years of age) since 'that benefit does not constitute for the worker a social advantage within the meaning of Article 7(2) of Regu- lation No 1612/68, inasmuch as he is no longer supporting his descendant'. 29

In other words, only if the study finance in reside in the Member State awarding the question is to be regarded as a social study finance in question (in the same way advantage in relation to the parent/migrant as, following the Leak judgment, it is not worker himself within the meaning of subject to possession by the child of the Article 7(2) of that regulation, which is here nationality of one of the Member States: see the case, may his children claim the same paragraph 21 above). The fact that Article entitlement as the children of national 12 of Regulation No 1612/68 confers workers. certain advantages on children of migrant workers in connection with admission to general educational, apprenticeship and vocational training courses but on condition As an indirect entitlement on the part of the that the child is resident in the Member child to equal treatment, that is a conse- State in question cannot in my view restrict quence of the right of the parent/migrant the particular and wider scope of Article worker to study finance regarded as a social 7(2), where study finance granted pursuant advantage in his favour, the child's entitle- to national legislation may under that ment is not in my view subject to a provision be regarded as a social advantage requirement on the part of the child to in favour of the parent/migrant worker.

Conclusion

23. In the light of the foregoing, I propose that the Court should reply to the first, second and fifth questions submitted as follows:

1. A national of a Member State who works in another Member State as a trainee as part of his training must be regarded as a migrant worker within the meaning of Article 7 of Regulation (EEC) N o 1612/68, if his employment under the direction of the employer has a certain economic value for which he receives remuneration from the employer which is not merely nominal and the duration of the training period, having regard to the nature thereof and the possibilities for the trainee to familiarize himself with the work carried out, is sufficiently long in order not to be regarded as purely marginal and ancillary.