C-64/96

JUDGMENT OF 5. 6.1997 — JOINED CASES C-64/96 AND C-65/96

J U D G M E N T O F T H E C O U R T (Third Chamber) 5 June 1 9 9 7 '

In Joined Cases C-64/96 and C-65/96,

R E F E R E N C E S to the Court under Article 177 of the EC Treaty by the Landes- arbeitsgericht Hamm, Germany, for a preliminary ruling in the proceedings pend- ing before that c ourt between

Land Nordrhein-Westfalen

and

* Language of the case: German.

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

T H E C O U R T (Third Chamber),

composed of: J. C. Moitinho de Almeida (Rapporteur), President of the Chamber, C. Gulmann and J.-R Puissochet, Judges,

Advocate General: N . Fennelly, Registrar: R. Grass,

— the French Government, by Catherine de Salins, Head of Subdirectorate in the Legal Directorate of the Ministry of Foreign Affairs, and Claude Cha- vance, Foreign Affairs Secretary in the same directorate, acting as Agents, and

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— the Commission of the European Communities, by Peter Hillenkamp, Legal Adviser, and Pieter van Nuffel, of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 6 February 1997,

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

4 Ms Uecker and Ms Jacquet entered into contracts of employment with the Land Nordrhein-Westfalen on 24 September 1990 and on 14 March 1994 respectively t o work as foreign-language assistants, in Ms Uecker's case at the University of Mün- ster and in Ms Jacquet's case at the University of Bochum. For various reasons, and in particular in pursuance of Paragraph 57b(3) of the Hochschulrahmengesetz (Framework Law on Higher Education, hereinafter 'the H R G ' ) , those contracts were for a limited period, expiring on 30 September 1994 in Ms Uecker's case and on 30 September 1996 in Ms Jacquet's.

5 Paragraph 57b(3) of the H R G provides:

'An objective ground also exists for the engagement on a fixed-term contract of an instructor performing special duties who is a speaker of a foreign language where the instructor is mainly engaged to teach foreign languages (as a "foreign language assistant").'

6 Ms Uecker and Ms Jacquet brought proceedings before the Arbeitsgericht (Labour Court) Münster and the Arbeitsgericht Bochum respectively. Ms Uecker sought a declaration that the clause limiting the duration of the contract was invalid and Ms Jacquet sought a finding that there was an employment relationship not limited in duration between the parties.

; Referring to Case C-272/92 Spotti v Freistaat Bayern [1993] ECR 1-5185, Ms Uecker submitted in support of her action that Paragraph 57b(3) of the H R G was incompatible with Article 28 of the Agreement on the European Economic Area of 2 May 1992, which entered into force on 1 January 1994 ('the EEA Agreement'), and Article 48(2) of the Treaty. The fact that her contract of employment was con- cluded before the EEA Agreement entered into force was, she argued, irrelevant since it had to be interpreted in accordance with the case-law of the Court of Jus- tice.

n The Landesarbeitsgericht H a m m states in its orders for reference that it does not share the view taken by the Oberverwaltungsgericht (Higher Administrative Court) Münster on 12 February 1990 (12 A 2363/87 N V w Z 1990, p. 889), that Article 11 of Regulation N o 1612/68 does not apply where a foreign national not having the nationality of a Member State resides in a Member State with his or her spouse who is a national of that State and who exercises a professional or trade activity there, since it presupposes that the national of a Member State exercises a professional or trade activity and lives with his or her spouse in a Member State other than his or her State of origin. The Landesarbeitsgericht Hamm does not accept the assumption, underlying that view, that a national of a Member State cannot rely on the provisions of Community law on freedom of movement against his or her own State because the legal relations between a Member State and its nationals are irrelevant to Community law.

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

12 It observes, moreover, that it is doubtful whether the fundamental principles of a Community moving towards European Union continue to permit a rule of national law incompatible with Article 48(2) of the EC Treaty still to be applied by a Member State against its own nationals.

1 3 Taking the view that its decision would be dependent on the interpretation of pro- visions of Community law, the Landesarbeitsgericht Hamm stayed proceedings and referred the following questions to the Court for a preliminary ruling:

JUDGMENT OF 5. 6.1997 — JOINED CASES C-64/96 AND C-65/96

been held by the Court of Justice to be inapplicable against the latter persons therefore also inapplicable against the relevant Member State's own nationals and their spouses who are not nationals of a Member State?'

u By order of the President of the Court of 21 March 1996, these two cases were joined for the purposes of the written and oral procedure and of the judgment.

T h e first question

is The national court's first question is, in substance, whether a national of a non- member country married to a worker having the nationality of a Member State can ' rely on the right conferred by Article 11 of Regulation N o 1612/68 within that same Member State when the worker exercises a professional or trade activity there.

i6 It has consistently been held that the Treaty rules governing freedom of movement and regulations adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations governed by Community law and all elements of which are purely internal to a single Member State (Joined Cases 35/82 and 36/82 Morson andjhanjan v State of the Netherlands [1982] E C R 3723, paragraph 16; Case 147/87 Zaoui v Cramif[l987] E C R 5511, paragraph 15; Case C-332/90 Steen v Deutsche Bundespost [1992] E C R 1-341, paragraph 9; Case C-153/91 Petit v Office National des Pensions [1992] E C R 1-4973, paragraph 8; and Case C-206/91 Koua Poirrez v Caisse d'Allocations ľamiliales [1992] E C R 1-6685, paragraph 11).

2i To grant the spouse of a worker who is a national of a Member State the right to be employed in that State, in which the worker exercises a professional or trade activity, would not correspond to the objective of Article 48 of the Treaty which Regulation N o 1612/68 seeks to implement, namely in particular that of enabling a worker to move freely within the territory of the other Member States and to stay there for the purpose of employment.

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JUDGMENT OF 5. 6.1997 — JOINED CASES C-64/96 AND C-65/96

22 Finally, the national court asks whether the fundamental principles of a Commu- nity moving towards European Union still permit a rule of national law which is incompatible with Community law because it is in breach of Article 48(2) of the Treaty to continue to be applied by a Member State against its own nationals and their spouses from non-member countries.

23 I n t h a t regard, it m u s t b e n o t e d t h a t citizenship of the U n i o n , established b y A r t i c l e 8 of t h e E C Treaty, is n o t intended t o extend t h e scope ratione materiae of the Treaty also to internal situations which have no link with Community law. Furthermore, Article M of the Treaty on European Union provides that nothing in that Treaty is to affect the Treaties establishing the European Communities, subject to the provisions expressly amending those treaties. Any discrimination which nationals of a Member State may suffer under the law of that State fall within the scope of that law and must therefore be dealt with within the framework of the internai legal system of that State.

O n those grounds,

T H E C O U R T (Third Chamber),

in answer to the questions referred to it by the Landesarbeitsgericht Hamm by orders of 26 January and 1 March 1996, hereby rules:

A national of a non-member country married to a worker having the national- ity of a Member State cannot rely on the right conferred by Article 11 of Regu- lation (EEC) N o 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community when that worker has never exercised the right to freedom of movement within the Community.

Moitinho de Almeida Gulmann Puissochet

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