C-64/96

L A N D NORDRHEIN-WESTFALEN v UECKER A N D JACQUET » LAND NORDRHEIN-WESTFALEN

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 6 February 1997

1. Do third-country nationals married to Faculty of the University of Münster. For Community workers who have not exercised various reasons recited in clause 4 of the con­ their free movement rights under the EC tract, this was limited in duration to 30 Sep­ Treaty enjoy the same rights as such spouses tember 1994. Relying on both the judgment of Community workers who have? Is the of this Court in Spotti1 and Article 28 of the Court's existing case-law on reverse dis­ Agreement on the European Economic Area crimination still valid in 'a Community of 2 May 1992 (hereinafter 'the [EEA] which is on its way to the European Union'? Agreement'), 2 Mrs Uecker successfully chal­ These are in essence the questions which lenged the temporal limitation on her arise in references from a German labour employment relationship in proceedings court in litigation between two foreign- before the local labour court, which also language assistants and their employer. relied in its judgment on Article 11 of Coun­ cil Regulation (EEC) N o 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (herein­ after 'Regulation N o 1612/68' or 'the Regu­ lation'). 3 The Land Nordrhein-Westfalen appealed. I — Facts and procedural background

4. Mrs Jacquet is a Russian national, who has been teaching the Russian language in Does that right of the spouse who is not different capacities since 1988 at Bochum a national of a Member State to "take University; her husband is a German up any activity as an employed person" national who, according to the national file, throughout the territory of the Member has not worked outside the Federal Republic State concerned include the right, at any material time. O n 14 March 1994, with respect to the conditions of Mrs Jacquet signed an employment contract employment and work, in particular with the Land Nordrhein-Westfalen as a with respect to the conditions for an foreign-language assistant for Russian at effective temporal limitation of an Bochum University. According to clause 1 of employment relationship, to be treated the contract, this was limited in duration to by an employer in the Member State 30 September 1996 'in order to ensure the concerned in the same way as that present relations with the linguistic situation employer would have to treat the in the home country'. Relying inter alia on spouse who is a national of the Member Article 11 of Regulation N o 1612/68 and State? Article 7 of Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State, 4 Mrs Jacquet unsuccessfully challenged the temporal limitation on her employment relationship. She appealed.

3) If Question 2 is also answered in the affirmative: 4 — OJ, English Special Edition 1970 (II), p. 402.

10. Article 11 reads as follows: 8. Article 7(1) reads as follows:

'Where a national of a Member State is pur- 'A worker who is a national of a Member suing an activity as an employed or self- State may not, in the territory of another employed person in the territory of another Member State, be treated differently from Member State, his spouse and those of the national workers by reason of his nationality children who are under the age of 21 years in respect of any conditions of employment or dependent on him shall have the right to

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OPINION OF MR FENNELLY — JOINED CASES C-64/96 AND C-65/96

take up any activity as an employed person 12. The question of the interpretation of this throughout the territory of that same State, provision cannot be resolved on the basis of even if they are not nationals of any Member its wording alone, and, as the Court, faced State.' with such linguistic inconsistency, held most recently in Merck v Primecrown, it is there- fore appropriate to take account of 'the gen- eral scheme and the purpose of the regula- tory system of which the provisions in question form part'. 5 While it might be con- Ill — Analysis sidered somewhat surprising that the incon- sistency of the different linguistic versions of this important measure has not arisen expressly before the Court in the last 23 years, the matter is not of any great diffi- culty.

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L A N D NORDRHEIN-WESTFALEN v UECKER A N D JACQUET v L A N D NORDRHEIN-WESTFALEN

14. That Article 11 should be interpreted in 15. In my opinion, it follows that granting conjunction with the other provisions of the non-Community spouse of a Commu- Title III of Part I of the Regulation 6 is sup- nity worker the right of access to employ- ported by the case-law of the Court, particu- ment in the Member State of which the larly its judgment in Diatta. 7 The content worker is a national in circumstances such as and the objectives of the Regulation were those of the present cases would not advance identified in paragraphs 15 and 21 of that the objectives of either Regulation judgment as follows: N o 1612/68 or Article 48 of the Treaty, which it was adopted to implement; it would not, in the words of the fifth recital in the preamble, remove one of the Obstacles to the mobility of workers'. The absence of such a right of access to employment for the work- 'That regulation is one of the various mea- er's spouse does not have any effect on the sures intended to facilitate the achievement situation of a worker who does not exercise of the objectives of Article 48 of the Treaty. his rights of free movement. It must therefore enable a worker to move freely in the territory of the other Member States and to reside in their territory in order to work there.

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O P I N I O N O F MR FENNELLY — J O I N E D CASES C-64/96 A N D C-65/96

17. The interpretation of Article 11 I have 19. To unearth an explanation of why the suggested was clearly that adopted by the word 'another' does not appear in Article 11 Court in Goal. 10 There the Court identified to qualify the Member State of work of the the beneficiaries of Article 10(1) as being 'the Community worker would partake more of spouse of a worker who is a national of one legal archaeology than of interpretation. 12 It Member State and who is employed in the is in my view significant, however, that, territory of another Member State, and ... according to the second recital in its pre- those of his descendants who are under the amble, Regulation N o 1612/68 was adopted age of 21 years or are dependants' (emphasis with a view to 'perfecting] measures added). The Court went on to hold that adopted successively under Regulation '[P]ursuant to Article 11 of that Regulation, N o 15 on the first steps for attainment of the same persons have the right to take u p freedom of movement and under Council any activity as employed persons throughout Regulation N o 38/64/EEC of 25 March 1964 the territory of the State where the worker is on freedom of movement for workers within employed'. n the Community'. The equivalent provisions of the earlier measures, Article 12 of Regu- lation N o 15 of 1961 " a n d Article 18 of Regulation N o 38/64/EEC,. 14 each provided expressly that the right of access to employ- ment for the spouse and dependent children was subject to the condition that the worker be engaged in gainful activity in the territory of another Member State.

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LAND NORD RHEIN-WESTFALEN v UECKER AND JACQUET v LAND NORDRHEIN-WESTFALEN

In the first place, a Community national Community worker is pursuing an activity may, in situations of fact governed by Com- as an employed or self-employed person in munity law, rely upon rights deriving there- the territory of a Member State other than from even as against the Member State of that of which the worker is a national. which he is a national. As the Court held in Knoors, 'freedom of movement for persons, freedom of establishment and freedom to provide services ... which are fundamental in the Community system, could not be real- ized if the Member States were in a position to refuse to grant the benefit of the provi- 22. If the Court were to follow my recom- sions of Community law to those of their mendation that the first question be nationals who have taken advantage of the answered in the negative, it follows that, in facilities existing in the matter of freedom of accordance with the terms of the order for movement'. 15 The general rule was formu- reference, the second and third questions lated thus in Scholz: '[any] Community need not be answered. In explaining the rea- national who, irrespective of his place of soning behind the third question, however, residence and his nationality, has exercised the referring court raises a point of more the right to freedom of movement of work- general import which, if its views were ers and who has been employed in another upheld, could have an impact on the Court's Member State, falls within the scope of' answer to the first question, and which I Regulation N o 1612/68 and Article 48 of the therefore propose to deal with briefly. Treaty. 16 Secondly, it is clear from the case- law of the Court cited above, and in particu- lar the judgment in Diatta, that the rights which are granted under Article 11 of the Regulation are derived rights, and that the third-country spouse can only benefit from these where his or her spouse comes within a situation governed by Community law. 23. The matter is formulated in identical terms in both orders for reference as follows:

In this regard, the national court had earlier cerning the primacy of Community law, and referred to Spotti,17 where the Court had in particular Costa v ENEL,1S SimmenthalI9 held the application of Paragraph 57b(3) and Factortame 1. In Simmenthal, the of the German Hochschulrahmengesetz Court held that in accordance with this prin- (Framework Law on Higher Education) to a ciple Community provisions 'not only by contract between the Freistaat Bayern and a their entry into force render automatically foreign-language assistant of Italian national- inapplicable any conflicting provision of cur- ity to be incompatible with Article 48(2) of rent national law but — in so far as they are the Treaty; the temporal limitation on the an integral part of, and take precedence in, contracts at issue in the present cases was the legal order applicable in the territory of also based on Paragraph 57b(3) of the Hoch- each of the Member States — also preclude schulrahmengesetz. the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provi- sions'. 21 There is, on the other hand, noth- ing in the Treaty which would prevent a 24. The matter raised by the referring court Member State applying to a situation which concerns essentially the relationship between is purely internal and, therefore, outside the Treaty and provisions of national law the scope of Community law a national which are incompatible with it, following the provision whose application to a situation entry into force of the Treaty on European governed by Community law has been held Union. Given the answer I have proposed to to be incompatible with the Treaty. In my the first question, it is only if the Treaty on opinion, both the general scheme of the European Union had brought about a Treaty on European Union and the wording change in that relationship that the employ- of Article M, which provides that 'nothing ees in the present cases could rely upon in this Treaty shall affect the Treaties estab- Spotti to challenge the temporal limitation on lishing the European Communities' except their contracts. Whatever the significance for those provisions which specifically amend the application of Community law of the those Treaties, militate against the view that establishment of the European Union in the Treaty on European Union has modified accordance with Article A of the Treaty on the relationship between Community and European Union, it is clear that this did not, national law, as the referring court has sug- in any respect which is relevant to the gested. present proceedings, modify either that rela- tionship or the scope of the provisions of Community law concerning the free move- ment of persons.

27. In the light of the foregoing, I am of the view that the second and t h i r d q u e s - tions referred b y the Landesarbeitsgericht H a m m in each o r d e r for reference s h o u l d n o t be answered, and that the first question s h o u l d be answered as follows:

Article 11 of C o u n c i l R e g u l a t i o n ( E E C ) N o 1612/68 of 15 O c t o b e r 1968 o n free- d o m of m o v e m e n t for w o r k e r s w i t h i n t h e C o m m u n i t y s h o u l d be interpreted as m e a n i n g that w h e r e the spouse of a C o m m u n i t y w o r k e r is a national of a t h i r d c o u n t r y , t h e said s p o u s e can rely u p o n t h e rights conferred b y this p r o v i s i o n o n l y w h e r e the C o m m u n i t y w o r k e r is p u r s u i n g an activity as an e m p l o y e d o r self- e m p l o y e d p e r s o n in t h e t e r r i t o r y of a M e m b e r State o t h e r t h a n that of w h i c h the w o r k e r is a national.

22 — Case 247/86 Abatei v Novasam [1988] ECR 5987, para- graph 8 of the judgment. 23 — On the temporal application of the EEA Agreement, sec Case T-185/94 Ceotronics v Commission [1995] ECR 11-2795; the case is currently under appeal (see the Opinion of Advocate General Tesauro of 30 January 1997 in Case C-395/95 P [1997] ECR 1-2271).

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