C-224/98

4. The observations submitted make it 2. On the basis of the above facts the clear that the Court has essentially to deal Tribunal du travail de Liège (Liège Labour with two issues in this case. In the first

1 — Original language: Dutch. 2 — OJ, English Special Edition 1968 (II), p. 475.

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instance it must consider whether, and if so teaching establishment run, subsidised or in what capacity, Ms D'Hoop can invoke recognised by a community'. Community law in her particular circum- stances, namely the fact that a benefit is being denied her not on grounds of nationality, nor of residence, but rather because she completed her secondary edu- cation at an educational establishment in another Member State. Secondly, the Court must consider whether Ms D'Hoop is the victim of unjustified discrimination on grounds of nationality within the meaning 6. In its judgment in Commission v Bel- of Article 12 EC. gium 4in 1996, the Court of Justice ruled that this requirement discriminates against the children of migrant workers and there- fore infringes Community law, specifically Article 39 EC and Article 7 of Regulation No 1612/68.

I I — National law

8. Ms D'Hoop is a Belgian national. After spending two years at the European School in Brussels, she completed her secondary 'Given that the Court of Justice has already education in Lille in France. The French interpreted Article 48 of the EC Treaty and Community in Belgium recognised her Article 7 of Regulation No 1612/68 to diploma obtained in France as equivalent mean that Article 36 of the Royal Decree to the Belgian higher school leaving certifi- of 25 November 1991 cannot prevent a cate, which entitles students to go on to dependant child of a Community migrant university. Ms D'Hoop subsequently worker who has completed his secondary attended university in Belgium until education in an establishment in a Member 23 September 1995. From 27 September State other than Belgium from being eli- 1995 to 26 June 1996 she was registered as gible to receive the tideover allowance, are a job-seeker with an employment agency. those provisions to be interpreted as mean- ing that Article 36 of the aforesaid Royal Decree also cannot prevent a Belgian stu- dent who has completed his secondary education in an establishment in a Member State other than Belgium and is seeking his first employment from being eligible to receive the tideover allowance?' 9. On 20 June 1996 Ms D'Hoop applied to the Office national de l'emploi, (the National Employment Office, hereinafter 'ONEM') for a tideover allowance. Her application was rejected because, so far as is relevant here, she had not completed her secondary education at an educational 11. Ms D'Hoop appealed against that rul- establishment established, recognised or ing. In its judgment of 16 March 2001, the subsidised by a community, as required Cour du travail (Higher Labour Court) in under Article 36(l)(l)(a) of the Royal Liège held that although the amendment to Decree of 25 November 1991. Article 36 of the Royal Decree of 1991 made by the Royal Decree of 13 December 1996 came into effect only on 1 January 1997, that is to say, after the application for the tideover allowance had been made, in the circumstances and in the light of established case-law, the amendment should be applied. This is also not disputed 10. Ms D'Hoop appealed against this by the parties. The Cour du travail further decision to the Tribunal du travail de Liège. upheld the ruling of the Tribunal du travail In its ruling of 17 June 1998 the Tribunal de Liège and remitted the case to it.

IV — Appraisal 16. Under the Court's established case-law, a young person seeking his or her first employment does not have the status of worker within the meaning of the term in Community law. In its judgment in Com- A — The scope of the Treaty mission v Belgium, the Court held that the

6 — It is common ground that the granting of a tideover allowance such as that at issue i n the main proceedings 14. In order to determine whether Ms does as such come within the material scope of the Treaty. D'Hoop's situation is indeed covered by The Court has, moreover, already ruled that the Belgian tideover allowance involved in this case is a social advan- Community law and whether she can tage within the meaning of Article 7(2) of Regulation No 1612/68. See Commission v Belgium, cited above, therefore invoke the principle of Commu- paragraph 25.

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17. The case-law cited in this context is to my mind to be interpreted in the following 19. Ishall also proceed on the basis that the way. The Community term 'worker' is provisions on free movement of workers interpreted widely, but there are clear are not applicable to this case. limits. A young person whose gainful employment is so minimal as to be purely marginal and ancillary cannot be regarded as a worker within the meaning of Article 39 EC. 9A fortiori, a young person who has never worked at all cannot be 20. The question also arises as to whether Ms D'Hoop, as a recipient of education 7 — With reference to the award of a student grant, the Court refers to Case 197/86 Brown [1988] ECR 3205, paragraph 21, and, with reference to State funding, to Case C-357/89 Raulin [1992] ECR I-1027, paragraph 10. 10 — By analogy with Case C-90/97 Swaddling [1999] ECR 8 — Commission v Belgium, cited above, paragraph 40. I-1075, to which the Commission refers in its written 9 — See for example Raulin, cited above, paragraph 13. observations.

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21. Bearing in mind inter alia the signifi- cance of trans-national education in Com- munity policy-making as envisaged in what was Article 128 of the EEC Treaty, and the implications for free movement of persons, the Court in 1985 in Gravier observed that 'access to and participation in courses of instruction and apprenticeship' fall within the scope of Community law. 11 The provi- sion of education is undeniably a service within the meaning of the Treaty, and a student or pupil can therefore be regarded 23. In circumstances where education is as the recipient of an education-related paid for entirely or primarily by students or service in such a case. their parents, rather than by the State, the application of the provisions governing services is thus not automatically excluded. In the present case there is insufficient information on the file to determine whether Ms D'Hoop's education in France was provided for consideration, for example at a private establishment run on a commercial basis. 14 22. Article 50 EC, however, requires that services be normally provided for remun- 12 — For an example of the settled case-law, see Case 263/86 eration. This must be taken as meaning that Humbel [1988] ECR 5365, paragraphs 17 to 19. 13 — The fact that pupils or their parents may be required to pay fees or a contribution to costs is irrelevant, according to the Court; see Humbel, cited above, paragraphs 18 and 19. 11 — Case 293/83 Gravier [1985] ECR 593, paragraphs 19 to 14 — During the oral proceedings Ms D'Hoop's counsel was 25. unable to answer a question relating to consideration.

24. However, if one assumes that Ms for both the insured persons and the service D'Hoop did receive a private education in providers. 16 France for which consideration was pro- vided and that Articles 49 and 50 therefore apply, it is then necessary to ascertain whether there is any restriction on the freedom to supply services where the com- pletion of secondary education in one's own country is a precondition governing eligibility for a tideover allowance. The Court has consistently ruled that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the 26. However, in these circumstances a provision of services within one Member direct link can be shown between the State. 15 national rules imposing the prior authori- sation requirement and the consultation of providers of medical services established in other Member States. In the present case there is no such direct link. The effect of the provision in this instance can only be indirect and marginal. From the point at which pupils opt to pursue and complete their secondary education in Belgium or in another Member State, it will normally be some years before they may come up

with a requirement imposed by health assurance providers on those insured with 16 — See Case C-158/96 Kohll [1998] ECR 1-1931, paragraph 35, and in Smits and Peerbooms, cited above, paragraph them, namely that prior authorisation 69. See also in another context, concerning the free movement of employed and self-employed persons, Case would have to be sought if such persons C-370/90 Singh [1992] 1-4265, at paragraph 19: 'A wished to consult providers of medical national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an services in another Member State. The employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on view of the Court is that this constitutes a returning to the Member State of which he is a national in barrier to the freedom to provide services order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.' 15 — See Case C-157/99 Smits and Peerbooms [2001] ECR 17 — In the context of the free movement of goods, see Case I-5473, paragraph 61. C-44/98 BASF [1999] ECR 1-6269, paragraph 21.

27. Ms D'Hoop, in my opinion, also falls 2. The Treaty provisions on citizenship outwith the scope ratione personae of the Treaty provisions on the movement of workers, and it does not appear that she could successfully invoke the Treaty provi- sions on services on the basis of the information available. 29. The Commission and counsel for Ms D'Hoop have examined the issue in the light of the provisions on citizenship of the Union enshrined in Articles 17 EC to 22 EC since the Treaty of Maastricht. As a national of a Member State who was legitimately resident in another Member State for educational purposes, Ms D'Hoop argues that she should fall within the scope ratione personae of those Treaty provi- sions. Article 17 EC attaches to the status of citizen of the Union the rights and duties imposed by the Treaty. These include the right under Article 12 EC not to be dis- criminated against on grounds of national- ity within the scope ratione materiae of the Treaty as applicable when the discrimina- tory provision was implemented. 19 28. However, the case-law cited is not without significance. These and other decisions illustrate a development in Com- munity law which concerns the scope of the Treaty as it applies to free movement of persons and education. This development 30. This approach was challenged at the flows in part from the extensive interpre- hearing by counsel for the Government of tation of the original EEC Treaty by the the United Kingdom of Great Britain and Court, which brought within the Treaty's Northern Ireland, who averred that Ms scope interests which are not primarily D'Hoop cannot in this case invoke provi- economic, such as access to education, sions on citizenship of the Union. She with the result that the fundamental prin- would be able to do so had she followed ciple outlawing discrimination by reason of a vocational training course in another nationality applies. Those who drafted the Member State, since such training does Treaty and the Community legislature 18 come within the scope of Community have acted on these rulings by granting to powers. However, the general course of Community citizens a number of rights not study undertaken by Ms D'Hoop in France directly related to economic interests. This is not covered by these Community powers, offers another angle from which to analyse according to the United Kingdom Govern- the question referred for preliminary ruling. ment.

31. The Court has held that the status of the European Union following a course of' citizen of the Union is 'destined to be the study in a Member State other than that of fundamental status of nationals of the which he or she is a national is entitled Member States'. 20 The application of the under Article 12 EC, read in conjunction provisions governing citizenship of the with Article 18 EC, to move and to reside Union depends on the legal context and freely in the territory of the Member States. facts of each case. It is my clear under- The Court's conclusion is based on the standing that Ms D'Hoop, a Belgian evolution in the Treaty brought about by national, availed herself in this instance of the incorporation of the Treaty provisions her right as a citizen of the Union to on citizenship, and on education and voca- freedom of movement and residence in tional training, as well as reference to the another Member State. Article 18 EC offers directive on rights of residence for students. citizens of the Union 'the right to move and Mr Grzelczyk was a French national fol- reside freely within the territory of the lowing a four-year course of study in Member States'. This freedom of move- Belgium. During the first three years he ment is more closely defined in secondary met his own living expenses, but in his Community law, specifically in the direc- fourth and final year he was unable to tives referred to as the directives on rights engage in employment due to the pressure of residence. These provisions enable of his studies. Without a minimum income citizens of the Union to take advantage of he would have been unable to retain a other rights conferred on them by Commu- Belgian residence permit. Following the nity law, including the freedom to reside in Court's interpretation of the abovemen- another Member State for educational tioned provisions in that case, Mr purposes. During her stay in France Grzelczyk's right to minimum subsistence Ms D'Hoop followed a course of study could not be made contingent upon com- recognised as equivalent in Belgium. She pliance with the requirement that he fall was therefore resident for a purpose spe- within the scope of Regulation No 1612/68 cifically envisaged by the Community legis- if such a requirement did not apply to lature, 21 and thus in my view comes within Belgian nationals. 22 the scope of the Treaty.

right to freedom of movement and the right EC, the same conclusion must apply of residence.23 On the contrary, in her regarding nationals who consider that they 'primary capacity' as a Community citizen have been the victims of unequal treatment she has exercised the very right granted precisely because they have availed them- under Article 18 EC which enables a Bel- selves of the right granted under Article 18 gian national to reside in France. She took EC in a way which is relevant to the advantage of the opportunity to spend four purposes of Community law. Normally, the years in secondary education in France and obtaining of a diploma in an educational concluded that period of study with a establishment in another Member State diploma which is recognised in Belgium as necessarily presupposes a period of resi- being equivalent to the Belgian higher dence in the Member State in which the school leaving certificate. The recognition educational establishment is located. of the French diploma by the authorities of the French-speaking Community in Bel- gium also flows from the Community-law obligation of mutual recognition of diplo- mas and other qualifications, a principle firmly enshrined in the Community. 24 35. Why Ms D'Hoop went to school in France and how she came to take advan- tage of the freedom granted under Article 18 EC to attend school in Lille are matters irrelevant in the present context: it may have been as part of an exchange programme or may have been at her own initiative. The right of residence is granted to every citizen of the Union, irrespective of status. 2 5Assuming that Ms D'Hoop was 34. Ms D'Hoop is being denied the right to legitimately resident in French territory — a tideover allowance purely on the grounds and this is not disputed in the case —, she of these activities. In my view, by analogy would accordingly come within the scope with the Court's reasoning in the Grzelczyk ratione personae of the provisions on judgment, we can only conclude that in the citizenship of the Union. 26 circumstances of the case Ms D'Hoop is entitled to invoke Article 12 EC outlawing discrimination on grounds of nationality. Where citizens of the Union are entitled to invoke the prohibition of discrimination against infringements of their right of residence within the meaning of Article 18 36. In this context, the United Kingdom's argument that this case does not involve 23 — The restriction on rights of residence referred to in vocational training, and that the Commu- Article 18 EC, which states that such rights apply 'subiect to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect', is also irrelevant in the present case. 25 — See Council Directive 90/364/EEC of 28 June 1990 on the 24 — For an overview of these principles I refer simply to the right of residence (OJ 1990 L 180, p. 26). judgment of 22 January 2002 in Casc C-31/00 Drcessen 26 — See also in this regard Martínez Sala, cited above, [2002] ECR I-663. paragraph 61.

nity therefore has no competence in this gian national who seeks his or her first area, is untenable. This position seems not employment and has concluded his or her only incorrect but also irrelevant. The secondary education at an educational distinction on the basis of the type of establishment in a Member State other education undertaken is not pertinent to than Belgium. the case, which is less concerned with education as such and more with the rights of young people as citizens of the Union to undertake part of their education in another Member State and to have this recognised as equivalent in their own country. 27 Further, as the Commission 38. This argument implies that there is no has stated, the term 'vocational training' transnational dimension to the case, with has since the Humbel judgment been the result that primary Community law in broadly construed, and may include sec- principle cannot be applicable. 29 However, ondary education. Moreover, as illustrated the facts cited above undeniably show that below, the Treaty provisions on education there is indeed an inter-State dimension to are no longer restricted to vocational the problem to which Community law has training but now cover education at every attached certain consequences. It is settled level, including intermediate education. case-law that the fact that Ms D'Hoop is invoking Community law against the State of which she is a national is not a conclusive factor in rendering the rule against discrimination inapplicable. The Treaty may not be interpreted in such a way as to preclude the application of Community law to a Member State's own nationals if they have been legitimately resident in the territory of another Member State and there pursued an activity relevant to Community law, with the result that, vis-à-vis their State of origin, they are in the same position as all other individuals enjoying rights and freedoms guaranteed 37. The ONEM in effect submitted that in by the Treaty. 30 the light of the judgment in Commission v Belgium it could be argued that this was a case involving reverse discrimination in what was otherwise a purely internal affair. It observes that the scope of the judgment in Commission v Belgium is clearly restricted to dependant children of Com- 39. It follows that Ms D'Hoop may, in her munity migrant workers living in Bel- situation, invoke the special rights, inter gium, 28 with the result that it does not cover reverse discrimination against a Bel- 29 — See for example Case C-97/98 Jägerskiöld [1999] ECR I-7319, paragraphs 42 to 45. 30 — See Case 115/78 Knoors [1979] ECR 399, paragraph 24, 27 — See Humbel, cited above, paragraphs 10 to 12. and also in particular Case C-19/92 Kraus [1993] ECR 28 — See paragraph 17 of the judgment. I-1663, paragraphs 15 and 16.

40. Prior to more detailed analysis of the applicability of Article 12 EC to the present case, I shall look at two legal developments 42. The Community has its own role to which may be of significance, albeit less play in this context. Article 3(q) EC immediate, to this case. The first is related requires the Community to make a con- to Community action in the field of edu- tribution to education and training of cation, training and youth (Articles 149 EC quality. Article 149(2) EC provides that and 150 EC), 31 and the second to the Community involvement is to be aimed at coordinated employment policy (Ar- developing the European dimension in ticles 125 EC to 130 EC inclusive). education and promoting the development of exchange programmes for young people. The Community institutions have under- taken a number of initiatives aimed at achieving this. The most significant and best known is the 'Socrates' programme, which brings together eight Community action programmes under one umbrella. 33 41. First, let us examine education, training One of these ('Comenius')34 is targeted and youth policy. Due to increasing market integration, greater attention is being devoted to education and the transnational 32 — See in this context the conclusions of the Presidency at the European Council meeting in Lisbon on 23 and 24' March aspects of policy in that area. The Member 2000, on 'employment, economic reform and social cohesion' (inter aha available via www.europarl.eu.int/ States increasingly recognise the import- home, under 'activities' and then 'summits'. ance of the generation, dissemination and 33 — Decision No 253/2000/EC of the European Parliament and the Council of 24 January 2000 establishing the second phase of the Community action programme in the field of education 'Socrates', OJ 2000 L 28, p. 1. 34 — Sec the Annex to the Decision, Point II, Action 1. 31 — Ms D'Hoop and the Commission relied on these provisions Admittedly, this action programme, unlike 'Erasmus' for and the interpretation thereof in support of their sub- higher education, does not deal with the mobility of missions. students.

43. These programmes are implemented in parallel with enhanced mobility of young people, who are thus able to take advan- tage of freedom of movement between Member States. In the instant case, Ms D'Hoop exercised the rights to freedom of movement and residence which she enjoys as a citizen of the Union for precisely the objectives envisaged by the Treaty. It is significant that in her application, as cited in the order for reference, she states: 'with a 45. These objectives fit in neatly with those view to broadening my horizons and in the of the employment programmes established context of European integration, I was under Belgian legislation. Participants educated under the French system for four receive a cash allowance in addition to years.' For this reason too, her position the benefits from the scheme. The active should be treated as coming within the element in the Belgian unemployment scope rattorte materiae of the Treaty. insurance scheme involves inter alia pro- grammes under which employers receive financial incentives to take on young people in receipt of the tideover allow- ance. 37 Given the scope of the employment guidelines, the refusal to allow nationals access to the programmes purely because 44. A second and further argument can be they completed their education in another derived from the nature of the Belgian Member State appears problematic. Ms tideover allowance and the way it links in D'Hoop's own national authorities should to Community employment objectives. The Community's employment strategy encompasses programmes to combat youth 36 — See Decision No 2001/63/EC of the Council of 19 January unemployment which include measures to 2001 on Guidelines for Member States' employment policies for the year 2001, OJ 2001 L 22, p. 18 (especially enhance employability, including work Chapter 1 or the Annex), and Recommendation 2001/64/EC of the Council of 19 January 2001 on the experience for young unemployed people. implementation of Member States' employment policies (in particular paragraph 12 of the recitals, which states The coordinated European employment that, in order to tackle youth unemployment, all young people should have the opportunity to gain entry to the world of work before they nave been unemployed for six months). 35 — See in particular, in relation to the present case, Articles 2 37 — For a more detailed overview of the relevant Belgian and 5 of the current Community Action Programme legislation, see Commission v Belgium, cited above, in 'Youth' (Decision No 1031/2000/EC of the European particular paragraphs 3 to 8 and 38. That judgment was Parliament and the Council of 13 April 2000, OJ 2000 handed down at the time of the events in the main L 117, p. 1. proceedings in the present case.

49. I do not accept that view. Within the 38 — For the same test, see Grzclczyh, cited above, paragraph framework of non-discrimination rules in 39 — Sec Grzekzyk, cited above, paragraphs 30 to 32. The the Treaty, like cases must be compared Court has also consistently held that where Community with like. Thus, in Commission v Belgium, citizens in their status as recipients of services fall within the scope of the Treaty, national provisions may not the Court is implicitly comparing the discriminate against persons on whom Community law has conferred the right to equal treatment (see inter ALIA the requirements applying to children of judgment in Case 186/87 COWAN (1989) ECR 195). migrant workers with those applying to

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51. In this context, a comparison with Kraus is instructive. In that case, the German authorities refused to recognise a German national as being entitled, without prior authorisation, to use an academic title acquired through postgraduate studies in another Member State. No such prior authorisation was required where the aca- demic title had been obtained at a German

50. Belgian legislation places Ms D'Hoop at a disadvantage as compared with Belgian 41 — See, along the same lines, Joined Cases C-4/95 and C-5/95 Stöberand Piosa Pereira [1997] ECR I-511, paragraph 38. nationals who have completed their sec- See also Case C-322/95 lurlaro [1997] ECR I-4881. These ondary education in Belgium, inasmuch as judgments pertain to persons who have the status or employed or self-employed persons, but there is no reason eligibility for the tideover allowance is why they cannot equally be applied in the context of the provisions on citizenship of the Union. The right to conditional on secondary education having non-discrimination by reason of nationality enshrined in been undertaken and completed in Bel- Article 12 EC applies to all situations falling within the scope ratione matertae and ratione personae of the Treaty. In principle it makes no difference whether the scope of provisions is determined by the economic freedoms enshrined in the Treaty or the rights attached to citizenship of the Union. 40 — Commission v Belgium, cited above, paragraphs 16 to 30.

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university. The Court held that Articles 39 measure is also valid in regard to Mr EC and 43 EC constituted a barrier to this Angonese, since he, as an Italian national, type of provision, in the absence of justifi- had acquired his linguistic skills in another cation. The national measure could hamper Member State. 43 or render less attractive the exercise by Community nationals, including those of the Member State which had enacted the measure, of the fundamental freedoms guaranteed by the Treaty. 42

43 — See Case C-281/98 Angonese [2000] ECR I-4139, in 42 — See Kraus, cited above, paragraph 32. particular paragraphs 38 to 41.

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V — Conclusion

58. In the light of the foregoing, I propose that the question referred for preliminary ruling by the Tribunal du travail de Liège be answered as follows:

Article 12 of the Treaty precludes the denial of a tideover allowance under Article 36 of the Belgian Royal Decree of 25 November 1991, as amended by the Belgian Royal Decree of 13 December 1996, to a Belgian national who has completed her university studies in her own country and is seeking her first job there, on the ground that she completed her secondary education in another Member State, a diploma from which is recognised as being equivalent to the Belgian higher school leaving certificate, rather than in her own country.

I-6211