C-184/99

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6. By decision of 29 January 1999, the provisions contained therein, any discrimi- CPAS withdrew his entitlement with effect nation on grounds of nationality shall be from 1 January 1999, on the ground that prohibited.' 'the person concerned was an EEC national enrolled as a student'. The plaintiff insti- tuted legal proceedings challenging that decision.

9. Article 8 of the EC Treaty (now, after amendment, Article 17 EC) reads:

7. The defendant, the governments of Bel- gium, Denmark, France, Portugal and the United Kingdom, the Council and the Commission have taken part in the proce- dure before the Court. I shall return later to '(1) Citizenship of the Union is hereby the pleas in law and arguments of the established. parties.

Every person holding the nationality of a Member State shall be a citizen of the I I I— Relevant legislation Union.

2. ...' '(1) Any Belgian having reached the age of majority, who is actually resident in Belgium and who does not have ade- quate resources and is not able to obtain them either by his own efforts 11. The following are also relevant to this or by other means, shall be entitled to a case: minimum means of subsistence.

(b) Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on free- dom of movement for workers within The King shall determine the meaning the Community2 (hereinafter 'Regula- of the words "actually resident". tion No 1612/68)';

(c) Council Directive 93/96/EEC of 29 October 1993 on the right of resi- The same entitlement is granted to dence for students 3 (hereinafter 'Direc- minors treated as being of full age on tive 93/96'). account of marriage, and also to single persons who are responsible for one or more children.

(2) The Belgian domestic legislation (2) The King may, by decree deliberated by the Council of Ministers, extend the (a) The Law of 7 August 1974 application of this law, subject to such conditions as he shall set, to other categories of minors, and also to per- 2 — OJ, English Special Edition 1968 (II), p. 475. sons not possessing Belgian national- 3 —OJ 1993 L 317, p. 59. ity.'

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17. The first sentence of Article 55(3) and, if appropriate, order him to leave the states, in essence, that: country, if he finds that:

1. The Community national no longer meets the conditions set out in para- graph 1(1) and (3); Within three months following the applica- tion for a residence permit, the Community national must prove that he fulfils the conditions listed in paragraph 1. 2. The Community national (or a member of his family...) has been granted finan- cial assistance by a CPAS the total amount of which, calculated over a period of 12 months preceding the month in which the order to terminate the residence was made, is more than three times the monthly amount of the 18. Article 55(4) provides, in essence, that: guaranteed minimum means of subsis- tence (calculated in accordance with the Law of 7 August 1974...), and the assistance has not been not paid back within six months of the last monthly instalment thereof.

20. The referring court proceeds from the 21. The referring court therefore wishes to following premisses: ascertain whether the principles laid down in Articles 6 and 8 of the EC Treaty are to be interpreted as precluding national legis- lation which restricts the right to a non- contributory social benefit, such as the 'minimex', to nationals of another Member State who are covered by Regulation — in its judgments in Hoeckx 4 and Scriv- No 1612/68, and as requiring the right to ner, 5the Court held that the Belgian such benefits to be extended to all citizens 'minimex' constitutes a 'social advan- of the Union. tage' within the meaning of Council Regulation (EEC) No 1612/68 6from which a migrant worker who is a national of another Member State residing in the territory of the State paying the benefit may not be exclu- 22. Should those questions be answered in ded; the negative, a further question occurs to the referring court, which it submits to the Court in the alternative. Since the present case concerns a student, reference must be had to Directive 93/96 8 on the right of residence for students. Article 1 of that directive recognises the right of residence — on the entry into force of the Maas- for any student who, by means of a tricht Treaty, the rights recognised declaration or by such alternative means under the Treaty were extended to all as he may choose that are at least equiva- citizens of the European Union and lent, provides an assurance that he has were no longer confined to 'workers' sufficient resources to enable him and his only; family to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

where, after he has been recognised as 2. In the alternative, are Articles 6 and 8a having a right of residence, it becomes of the Treaty and Directive 93/96 of apparent that, contrary to his declaration, 29 October 1993 on the right of resi- the student is not able to meet the costs of dence for students to be interpreted to his upkeep. Do the provisions of Commu- the effect that, after a student's right of nity law allow a student whose right of residence has been acknowledged, they residence has been recognised to be exclu- allow him to be subsequently barred ded subsequently from entitlement to a from entitlement to non-contributory non-contributory social benefit such as the social benefits, such as the minimum 'minimex' payable by the host State? If so, means of subsistence, payable by the the referring court submits, it must also be host country, and, if so, is that exclu- ascertained whether the same provisions sion general and definitive in nature?' are to be interpreted as meaning that that exclusion is of a general and definitive nature, that is to say that the entitlement in question could not be recognised in any circumstances, not even where the person concerned had acted in good faith or where a new factor had emerged or there had been a change in circumstances beyond the VI — Pleas in law and arguments of the control of the student concerned. parties

25. The plaintiff in the main proceedings 24. The referring court submits the follow- has not submitted any observations. ing questions to the Court for a preliminary ruling:

27. On the first question, the defendant takes the view that, as Community law stands at present, Articles 6 and 8 of the EC Treaty cannot be interpreted as mean- 28. As regards the judgment in Martinez ing that a citizen of the Union may claim Sala, 13 referred to by the national court, such a social benefit. The Belgian rules are the defendant argues that the circumstances therefore consistent with Articles 6 and 8 a in that case were fundamentally different, of the EC Treaty. Article 8a provides that so that the principles established there every citizen of the Union has the right to cannot be applied to this case. The plaintiff, move and reside freely within the territory who has been residing in Belgium for four of the Member States 'subject to the years for the sole purpose of pursuing his limitations and conditions laid down in studies there, does not fall within the scope this Treaty and by the measures adopted to of the provisions on workers. give it effect'. That phrase shows that Article 8a does not have direct effect and that it must be given effect in such a way as to observe the limitations laid down in the Treaty and in secondary legislation. Those limitations include Directives 90/364/ EEC, 9 90/365/EEC 10 and 90/366/EEC, 11 now Directive 93/96. Those three directives 29. On the second question, the defendant qualified and limited freedom of movement takes the view that a student is excluded by means of the requirement that a person from non-contributory social benefits prove that he has sufficient resources and throughout the period of his residence in that capacity. The phrase 'during his period of residence' in the directive implies, for a 9 — Council Directive 90/364/EEC of 28 June 1990 on the right student, that the condition of sufficient of residence (OJ 1990 L 180, p. 26). resources applies throughout the entire 10 —Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons period of his residence. who have ceased their occupational activity (OJ 1990 L 180, p. 28). 11 —This directive was annulled by judgment of the Court in Case C-295/90 Parliament v Commission [1992] ECR I-4193 and was readopted, on a different legal basis, in the 12 — See the sixth recital in the preamble to Directive 93/96. form of Directive 93/96. 13 — Cited in footnote 7 above.

35. As for the nature of the benefit, the Belgian Government submits that it is a social benefit which is granted only in the last resort. All other sources available (2) The Belgian Government under maintenance and social security legislation must have been exhausted first. Only a student who fulfils those conditions is eligible for the benefit. 32. In order to further clarify the facts, the Belgian Government submits that the plaintiff did not apply for a residence permit until 25 October 1998 and that the permit was issued to him on 21 January 1999. Prior to that date, he was therefore 36. With regard to the reference for a residing unlawfully in Belgian territory. preliminary ruling, the Belgian Govern- Also on 21 January 1999, the plaintiff ment argues that the principle of equal applied for a certificate of residence as a treatment is applicable to facts which fall student and, on that occasion, made a within the scope of the Treaty. The Court declaration that he had sufficient resources. has accordingly held that access to voca-

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14 — See Case 197/86 Brown [1988] ECR 3205, in particular the Opinion of Advocate General Slynn at 3224, and Case C-357/89 Raulin [1992] ECR 1-1027, in particular the 15 — See Article 1 of Directive 93/96. Opinion of Advocate General van Gerven at 1-1040. 16 — Case 39/86 [1988] ECR 3161.

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40. Should the Court of Justice find, how- the basis of Regulation No 1612/68. Nei- ever, that a student who is a Community ther Article 6 nor Article 8 of the EC national is, in his capacity as such, entitled Treaty supports a different conclusion and to social benefits in the same way as the Treaty of Amsterdam has done nothing students who are nationals of the host to alter that fact. Citizenship of the Union State, the Belgian Government asks that the carries no new rights. As is clear from their effects of the Court's judgment be limited in wording, those provisions have no inde- time, for reasons of legal certainty and in pendent meaning. 1 8The Danish Govern- order not to undermine the system for ment emphasises that it does not share the financing social benefits. view expressed by the referring court that the Maastricht Treaty extended the rights provided for in the Treaty to all citizens of the Union.

41. The Belgian Government contends, finally, as an entirely subsidiary point, that, ultimately, any right to equal treatment may not go further than the right of a national student to payment of the mini- mex. A student who is a Community 43. With regard to the second question, the national must at least satisfy the same Danish Government submits that Directive stringent conditions. 93/96 requires that a student have sufficient resources. Only then does he enjoy a right of residence. That right lapses when he no longer has sufficient resources. This follows from the sixth recital in the preamble to, and Article 1 of, the directive. Sufficient resources are therefore a condition of the right of residence. (3) The Danish Government

45. Even if the plaintiff falls within the 47. On the other hand, such comprehensive scope ratione materiae of the Treaty, that equal treatment is not readily compatible does not affect payment of the 'minimex'. with the rights attached to nationality. In this case, the 'minimex' is intended to be Furthermore, the French Government also paid as a maintenance grant for students, refers to the reservation contained in Arti- which, in accordance with the case-law of cle 8a of the EC Treaty, the substance of the Court, does not fall within the ambit of which is given concrete expression in the principle of equal treatment as regards Directives 90/364, 20 90/365 21 and access to vocational training. Nor does 93/96 22 on the right of residence. More- Article 8a of the Treaty change the legal over, Directive 93/96, in the form of position of students. This follows from the Directive 90/366, was annulled by the qualification contained in the wording of Court on the ground that it had been the provision itself. It does not afford adopted on a defective legal basis. 23 It was students an independent legal status. It is then adopted on the basis of the second perfectly consistent with Articles 6 and 8 a paragraph of Article 7a of the EC Treaty of the Treaty, and with Directive 93/96, for (now Article 14(2) EC), which defines the students to be excluded from the social internal market by reference to the provi- benefit at issue. sions of the Treaty. This does not imply absolute equal treatment. In the view of the French Government, the plaintiff in the main proceedings cannot claim equal treat- ment within the meaning of Regulation No 1612/68.

the Member States to resolve, as indeed the that Community law does not give a clear Member State in question did in the answer to the question whether the status circumstances which gave rise to the main of worker is retained in such circumstances. proceedings. The right of a student to a There is, however, some evidence which non-contributory social benefit cannot be points towards an affirmative answer to asserted on the basis of Articles 6 and 8 of that question. The Portuguese Government the EC Treaty and Directive 93/96. refers to the judgment in Lair, 31 according to which the status of worker is not necessarily linked to the continued exis- tence of an employment relationship. If the plaintiff was a worker for three years, he must retain his status as such, since the contrary situation would constitute (5) The Portuguese Government unequal treatment in relation to unem- ployed persons, who, in accordance with Regulation No 1612/68, 32 are to enjoy the same social advantages as national work- 49. The Portuguese Government first of all ers. The judgment in Lair is to be construed examines in detail the question whether the to that effect also. grant of the 'minimex' under Belgian law constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 and concludes that it does. It then addresses the question whether the plaintiff had the status of worker originally and, if so, whether he has retained it. The correct meaning of 'worker' in Community law, it contends, depends on the subject- matter in question. The Portuguese Gov- ernment uses the term as it was defined in 51. As regards the criterion of continuity the judgments in Laivrie-Blum, 27 Lair, 28 between occupational activity and study, Raulin 29 and Martinez Sala. 30 the Portuguese Government examines two alternatives: if there is substantive continu- ity between the two, the plaintiff is entitled to the social advantage at issue. If, on the other hand, no such continuity can be 50. The Portuguese Government submits established and the plaintiff has studied in that, as it is not absolutely clear whether order to acquire a qualification in another the plaintiff abandoned his occupational sector of activity, he must none the less be activity altogether in his fourth year of regarded as a worker by virtue of the study, it has proceeded from the assump- judgment in Lair, 33 which states that the tion that he stopped working in order to element of continuity is not essential where obtain a vocational qualification. It is true the worker has involuntarily become unem-

52. In view of that assessment, further examination of citizenship of the Union is purely academic. The Portuguese Govern- 54. The United Kingdom Government ment submits in this respect that, in the takes the view that any discrimination EEC Treaty, free movement of persons was against the plaintiff does not pose a pro- established on economic grounds. That blem since it does not fall within the scope right was further developed by the direc- of the Treaty. Article 6 of the EC Treaty is tives on the right of residence. 34 The right subordinate to the specific prohibition of of residence, it contends, was linked only to discrimination laid down in Article 48 of certain economic conditions, such as the the EC Treaty and to the regulation existence of sufficient financial resources. adopted in implementation of that article, Under the Maastricht Treaty, the right of Regulation No 1612/68. Article 8 of the residence evolved yet further, and, under EC Treaty does not extend the scope of Article 8 a of the EC Treaty, brought about Article 6. Even if Article 6 were to be a qualitative change in the status of citizens applied independently, it could not be of the Union under Community law. Citi- extended to facts which are excluded from zenship of the Union took on greater the scope ratione personae of the Treaty. significance, in contrast to the perception That, moreover, is consistent with the of individuals as purely economic factors judgment in Martínez Sala. 36In that case, which had underlain the EC Treaty. The the appellant was already entitled to the conditions on which freedom of movement benefit in question under national law. may depend are now no longer economic in Article 6 merely permitted her to fulfil the nature, as they still were in the 1990 additional requirement of producing a directives. 35 The only 'limitations and residence permit. It was indisputable that conditions' attached to freedom of move- she was lawfully resident in Germany, even ment now are those imposed on grounds of though the German authorities failed to public policy, public security and public issue her with the document she had health. Regulation No 1612/68 is therefore requested. applicable to all citizens of the Union residing in the territory of a Member State, whether or not they are bound by a contract of employment. 55. The plaintiff in these proceedings, on the other hand, has no entitlement under 34 — Directives 90/364 (cited at footnote 9), 90/365 (cited at footnote 10) and 93/96 (cited at footnote 11). 35 — Directives 90/364 (cited at footnote 9), 90/365 (cited at footnote 10) and 90/366 (cited at footnote 11). 36 — Case C-85/96, cited at footnote 7.

national law to the benefit claimed. Both has no claim to equal treatment on that the CPAS and the referring court have ground either. deemed the plaintiff to be a student, not a worker. There is no reason to call that assessment into question. The status of student within the meaning of Directive 93/96 and the status of worker are 57. In answering the second question, the mutually exclusive and remain so for the United Kingdom Government points out entire duration of the training. A part-time that the wording and meaning of Directive job to finance study is not capable of 93/96 40 expressly show that a student has establishing a person's status as a worker. no entitlement to maintenance allowances. In such circumstances, the occupational In the view of the United Kingdom Gov- activity is purely ancillary to the studies. ernment, Article 8a of the EC Treaty is not Its irregularity and limited duration make it capable of creating for students an inde- difficult to regard the occupational activity pendent right of residence the limits of in question as 'effective and genuine' within which go beyond those laid down in the meaning of case-law. 37 Directive 93/96. Even if Article 8a of the EC Treaty did support an independent right of residence, however, an entitlement to social benefits could not accrue on that basis alone. Moreover, Article 8a of the EC Treaty is not directly applicable. The right of residence is subject to a reservation and the Council may, under Article 8a(2), 56. The right of residence for a student adopt provisions with a view to facilitating under Directive 93/96 is, in accordance the exercise of the rights referred to in with Article 1 thereof, subject to condi- paragraph 1. tions, such as, for example, the requirement to have sufficient resources to finance his studies. A student who has to work in order to finance his studies by definition does not have sufficient resources. In any event, the plaintiff lost his status of worker once he ceased his employment and applied for the (7) The Council 'minimex'. In concluding its examination of the first question, the United Kingdom Government points out that assistance granted to students likewise does not fall 58. In its brief written observations, the within the scope of the Treaty, by virtue of Council submits that the benefit sought by both the case-law of the Court 38 and the plaintiff cannot be claimed under Directive 93/96, 39 and — without reach- Regulation No 1612/68. That regulation ing a final conclusion as to the nature of the applies exclusively to workers. The plain- 'minimex' — it submits that the plaintiff tiff, however, is a student. Moreover, there is no reason to call into question the validity of Regulation No 1612/68. 37 — See Case C-357/89, cited at footnote 14, paragraph 14. 38 — See Case 39/86, cited at footnote 16, and Case 197/86, cited at footnote 14. 40 — See Article 3 of, and the seventh recital in the preamble to, 39 — See the seventh recital in the preamble to the directive. the directive

(8) The Commission purposes of study, the status of worker may still be retained; indeed it can even take precedence over the right of residence as a student. 59. In its submissions, the Commission proceeds from the premiss that the plaintiff would have received the benefit claimed if he had been a Belgian national. The application of the principle of equal treat- ment under Article 6 therefore depends on 61. As regards the rights attached to the whether the contested benefit falls within status of student, the Commission submits the scope of the Treaty. There is no doubt that the right of residence as a student does that it falls within the scope ratione mate- not necessarily carry with it any other riae of the Treaty, since it is a social rights, such as entitlement to social bene- advantage within the meaning of Arti- fits. As defined by the case-law of the cle 7(2) of Regulation No 1612/68. As Court, the right of residence for students is regards the scope ratione personae of the the expression of the principle of equal Treaty, it is necessary first of all to examine treatment in the context of access to the specific areas in which Community law vocational training. However, it does not applies, such as freedom of movement for seem entirely out of the question that a workers and students' rights, before the student in the plaintiff's situation should general provisions on European citizenship have at least partial access to 'minimex' can be considered. benefits. The case-law of the Court states that, in principle, students from another Member State are to have access to assis- tance accorded to national students in so far as the assistance granted is intended to cover enrolment fees and other costs of 60. Even though it is ultimately a matter access to the course. 43 In that context, for the referring court to decide whether partial entitlement to the 'minimex' is the plaintiff was a worker, the Commission conceivable. proceeds on the assumption that, on the basis of the criteria established by the case- law of the Court, 41 the plaintiff must be regarded as a worker within the meaning of Community law. An occupational activity which for three years enabled the plaintiff to pay for his accommodation, upkeep and 62. The Commission submits that Article 8 studies can hardly be regarded as 'purely of the EC Treaty is not directly applicable marginal and ancillary' within the meaning since it refers to rights 'conferred by this of the judgment in Levin. 42 Even if the Treaty'. It does not in itself confer entitle- occupational activity is interrupted for the ment to social benefits. However, nor does any such right accrue even when Article 8 is read in conjunction with Article 8a or Article 6 of the EC Treaty. Article 8 a of the 41 — See Case 53/81 Levin [1982] ECR 1035, paragraphs 16,17 and 21; Case 139/85 Kempf [1986] ECR 1741, paragraph 14; Raulin, cited at footnote 14 above, paragraph 10; and Lair, cited at footnote 16 above, paragraph 29 et seq. 42 — Case 53/81, cited at footnote 41, paragraph 16. 43 — See Raulin, cited at footnote 14 above, paragraph 28.

64. For reasons of organisation, it is appro- priate to consider first whether the plaintiff 66. The Court has consistently held 44 that has the legal status of worker, since resi- freedom of movement for workers forms dence by reason of paid employment and one of the foundations of the Community. the attached rights and obligations involve The provisions laying down that funda- a special set of rules as distinct from the mental freedom and, more particularly, the general right of residence for citizens of the terms 'worker' and 'activity as an employed Union under Article 8a of the EC Treaty. person' defining the sphere of application There is also a special set of rules governing of those freedoms must be given a broad the right of residence for students referred interpretation in that regard. 45 In order to to in the second question. This follows be classified as a worker, a person must expressly from Article 1 of Directive 93/96, which states that the right of residence is to be recognised for any student who is a 44 — See Case 139/85 Kempf. cited at footnote 41, and Case C-3/90 Bermm |1992| ECR 1-1071. national of a Member State and 'who does 45 — See Kempf. cited at footnote 41. paragraph 13.

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pursue an activity which is effective and 68. The Belgian Government pointed out genuine to the exclusion of activities on that the plaintiff undertook a number of such a small scale as to be regarded as 'student jobs' (petits travaux d'étudiant). purely marginal and ancillary. The essential Student work, the Belgian Government characteristic of the employment relation- submits, is one of a number of special ship is that for a certain period a person employment relationships under Belgian performs services for and under the direc- law which are not to be regarded as normal tion of another person in return for which employment relationships. It did not spe- he receives remuneration. 46 cify which jobs are covered by such special relationships.

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insurance provision was made. It must be time employment relationship. In Levin, 50 stated, however, that the obligation to for example, the Court, in assessing whe- provide social insurance is not a decisive ther the activity in question was effective criterion for or against the plaintiff's status and genuine, recognised part-time employ- as a worker, since this case concerns the ment as establishing a person's status as a status of worker in the context of freedom worker, even though the objection had been of movement and not the meaning of raised in the proceedings that the income 'worker' in the context of Regulation from that employment was less than the (EEC) No 1408/71. 47 Consequently, the minimum guaranteed income in the sector fact that, as the Belgian Government concerned.51 observes, the plaintiff did in any event undertake 'student jobs' regulated by law cannot preclude his having the status of worker. The deciding factor is that, for a certain period, he performed for and under the direction of another person services in return for which he received remuneration and which do not appear to have been 73. Similarly, for the purpose of determin- 'purely marginal and ancillary'. 48 ing whether a particular activity was effec- tive and genuine, the Court did not at any rate rule out the possibility, in Kempf, 52 that part-time work of 12 hours a week as a music teacher, 53 and, in Meeusen, 54 that two hours' employment a week, could establish a person's status as a worker. In 71. An activity or a succession of individual Brown, 55the Court held that 'pre-univer- employment relationships which enable a sity vocational training' of approximately worker to support himself without external eight months was sufficient to confer on the assistance for a period of three years cannot person in question the status of worker. 56 under any circumstances be regarded as 'purely marginal and ancillary'.

75. Against that background, the plaintiff 1. a person who avails himself of the right can, on the face of it, be considered to fulfil of residence as a student must be the objective conditions for establishing the enrolled 'in a recognised educational status of worker. I shall come back later to establishment for the principal purpose the possible consequences of the end of the of following a vocational training employment relationship or the voluntary course there'; cessation of work.

76. It must now be examined whether a 2. he must be covered by sickness insur­ person in the plaintiff's situation also ance in respect of all risks in the host enjoys a right of residence in his capacity Member State; as a student.

3. he must assure the relevant national The right of residence as a student authority, by means of a declaration or by such alternative means as he may choose that are at least equivalent, that he has sufficient resources to avoid 77. It is common ground that the plaintiff becoming a burden on the social assis­ resides in Belgian territory in order, inter tance system of the host Member State during his period of residence. 58 — An 'oproepcontracť. 59 — See Raulin, cited at footnote 14, paragraph 14. 60 — See Raulin, cited at footnote 14 above, paragraph 11. 63 — See Article 1 of Directive 93/96: "... the Member States shall recognise the right of residence for any student who is 61 — Case C-3/90, cited at footnote 44 above. a national of a Member State and who does not enjoy that 62 — See Bernini, cited at footnote 44, paragraph 17. right under other provisions of Community law...'

78. In this respect, the text of the directive 82. As regards the third condition, it can reiterates the criteria for non-discrimina- probably be assumed that the plaintiff did tory access to vocational training pre- not in fact submit a declaration as required viously established by the case-law of the during the first three years of studies, in all Court. 64 likelihood because he was not asked for one. The plaintiff did not apply for a residence permit until near the end of the third year of his studies. The fact remains, however, that for three years he fulfilled the condition, if not formally at least substan- 79. It can be assumed that the first condi- tively. He was able to obtain sufficient tion is fulfilled in the present case. The resources, by his own efforts, so as not to plaintiff is enrolled as a fully-registered have to rely on the social assistance system student at the University of Louvain-la- of the host Member State. Neuve. He is following a full-time course in physical education there. Moreover, he appears to be completing the course within the prescribed time. It is for that purpose that he applied for the assistance in ques- tion. 83. It is true that the United Kingdom Government has raised the objection that the plaintiff could not have submitted such a declaration since he had been forced to work in order to support himself, which 80. The Belgian Government has argued proves that he did not have sufficient that the plaintiff is not lawfully resident in resources. Belgian territory. However, it based that argument on the fact that he did not apply for a residence permit until 1998. On the other hand, he must have enrolled at the university in the proper manner, since, otherwise, the university would not have accorded him 'credit facilities to pay his tuition fees'. 84. The facts suggest the contrary, how- ever. For three years the plaintiff had sufficient resources and did not have recourse to the social assistance system of the State of residence. Moreover, there is no reason why the pursuit of an activity in 81. The second condition, requiring sick- order to support oneself should not be ness insurance cover, also appears to be recognised as an appropriate means of fulfilled. It has not been focused on in these obtaining resources. It is clear that for proceedings, and probably does not pose three years the plaintiff successfully man- any problems. aged to combine study with occupational activity. Otherwise, he would not in fact have endeavoured to obtain the end-of- 64 — See Rtiuhiiy cited ahove at footnote 14. paragraph 39. course qualification in his final year.

88. In so far as the declaration as to 87. However, in the first three years of his available means of subsistence is a stage studies, the plaintiff did not make a formal prior to the residence permit, the position here cannot in principle be any different. In

65 — See the first subparagraph of Article 1(1). 66 — See Article 1(1)(2). 68 — See Raulin, cited at footnote 14, paragraph 34. 67 — See in this respect the observations submitted by the 69 — See Raulin, cited at footnote 14, paragraph 36, which Commission in Case C-424/98 Commission v Italy [2000] contains further references. ECR 1-4001, paragraph 39. 70 — See Martinez Sala, cited at footnote 7, paragraph 53.

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90. The question now is what legal and factual consequences follow from that 'right of residence', which derives, on the 92. A problem might arise from the fact one hand, from occupational activity and, that different rights and obligations are attached to each legal basis. In those circumstances, the interests of free move- 71 — Case C-424/98 Commission v Italy, cited at footnote 67. ment dictate that the consequences more 72 — See Case C-424/98, cited at footnote 67, paragraph 44. favourable to the holder of the right of 7,3 — See Case C-424/98, cited at footnote 6 7 , paragraph 46. residence should apply. The objections

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raised at the hearing by the French and measured might be whether the vocational United Kingdom Governments, to the effect training was predominant. In a case such as that a foreign national who arrived in the this one, however, where the beneficiary host Member State as a student can, for the has supported himself independently for a duration of his course, rely only on his right number of years, application of that criter- of residence as a student and cannot change ion is unnecessary. his status as such without authorisation from the Member State, cannot be upheld. Where the legal and factual conditions for the enjoyment of a right of residence as a migrant worker are fulfilled, refusing to allow a person to rely on his status as such would amount to the unilateral introduc- Retaining the status of worker tion by a Member State of an obstacle to the free movement of workers.

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produce certain effects after the employ- In the field of grants for university educa- ment relationship has ended. 76 And indeed, tion, the Court makes eligibility for assis- in those cases in which the Court has tance subject to there being an element of hitherto had occasion to rule on the continuity between the previous occupa- relationship between occupational activity tional activity and the new course of study, and subsequent vocational training or in the sense that 'there must be a relation- study, 77 it has unreservedly recognised the ship between the purpose of the studies and status of worker as continuing to produce the previous occupational activity'. 82 Such effects. In Lair, it expressed this as follows: continuity is not, however, essential 'where '... there is a basis in Community law for a migrant has involuntarily become unem- the view that the rights guaranteed to ployed and is obliged by conditions on the migrant workers do not necessarily depend job market to undertake occupational on the actual or continuing existence of an retraining in another field of activity'. 83 employment relationship'. 78

In conclusion, the Court held that 'a 'Persons who have previously pursued in national of another Member State who the host Member State an effective and has undertaken university studies in the genuine activity as an employed person host State leading to a professional quali- (...), but who are no longer employed are fication, after having engaged in occupa- nevertheless considered to be workers tional activity in that State, must be regar- under certain provisions of Community ded as having retained his status as a law.' 79 worker and is entitled as such to the benefit of Article 7(2) of Regulation No 1612/68, provided that there is a link between the previous occupational activity and the studies in question'. 84

mine whether such a substantive link this instance, a connection between occu- existed. pational activity and study results, on the one hand, from the time factor itself and, on the other, from the fact that the occupational activity was pursued for the purpose of completing the study. A con- nection of purpose of this kind cannot in itself call into question the status of worker. 98. In the absence of any kind of substan- As long ago as its judgment in Levin, 87 the tive link, however, the question arises Court held that occupational activity does whether the status of worker may be not necessarily have to be the only purpose retained on other grounds. In order to of entry into the territory of a Member answer that question, it is necessary, first of State. There is therefore no need for any all, to examine the main differences and further criterion to be fulfilled in order to similarities between this dispute and the establish a link between occupational activ- cases in which the Court has required there ity and study. A person should therefore to be an element of 'continuity'. 85 retain his status as a worker even if his occupational activity is interrupted for the duration of his training, and, therefore, for the duration of his right of residence.

103. A person such as the plaintiff may therefore rely on Article 7(2) of Regulation No 1612/68. Moreover, a social benefit such as that at issue in the present case The status of student has been recognised by the Court as being a social advantage within the meaning of that provision. 88

105. The question whether the plaintiff in the main proceedings may qualify for the 'minimex' in his capacity as a student must be examined only in the event that his status as a worker is not recognised. The status enjoyed by students under Commu- nity law in the context of access to social 104. While the status of worker does there- advantages has already been broadly fore continue to produce effects even after defined by the case-law of the Court 89 the end of the employment relationship, and Directive 93/96 which codifies it. A those effects are none the less not unlim- Community national who wishes to study ited. Where the grant of a benefit is made in another Member State enjoys equal subject to further conditions, these must be treatment as regards access to vocational fulfilled. It is of course for the national training, 90 which also comprises university court alone to verify whether the conditions studies leading to a professional qualifica- laid down by national law, such as, for tion. 91 The right to equal treatment in example, the requirement under Arti- principle includes the assistance granted to cle 1(1) of the Belgian Law of 7 August cover enrolment fees and other costs of 1974 (see point 12) that a claimant has to access to the course, 'regardless of how be unable 'by his own efforts' to obtain the such assistance is calculated or the under- resources applied for, are met, and whether lying philosophy'. 92 that condition is fulfilled where the clai- mant voluntarily abandons an activity by 89 — Gravier cited at footnote 24; BLaizot, cited at footnote 25; Raulin, cited at footnote 14; and Lair, cited at footnote 16. 90 — See Gravier, cued at footnote 24. 88 — Hocckx, cited at footnote 4, ami Scrwncr, cited at root- 91 — See BLazot, cited at footnote 25. note 5. 92 — Randnr , cited at footnote 14, paragraph 28.

110. It is true that, in order to obtain a right of residence as a student, a person must be able to give an assurance as to the possession of means of subsistence. 96 It is Under the Court's present case-law, which legitimate to ask here whether proof of is based on the EEC and EC Treaties, a means of subsistence is a condition of the study grant in the form of a maintenance right of residence or whether recourse to allowance does not fall within the scope of the social assistance system of the host the Treaty. Education policy94 and social Member State constitutes a potential security95 have been deemed not to be ground for terminating the right of resi- covered by the Treaty, at least within the dence. On the basis of the judgment in Case relevant limits. C-424/98, 9 7 the latter interpretation appears to be correct. If that were the case, the existence of means of subsistence would not be an essential condition of the right of residence. However, the possibility of ter- minating residence as a result of recourse to the social assistance system is also an 108. The fact that the right of residence for instance of unequal treatment which is students has since been provided for in accepted by Community law and justified on grounds relating to the legitimate inter- ests of the State. 93 — See Lair, cited at footnote 16, paragraph 16. 94 — Gravier, cited at footnote 24, paragraph 19. 95 — See Case C-120/95 Decker [1998] ECR 1-1831, paragraph 21; and Case C-158/96 Kohll [1998] ECR 1-1931, 96 — See Article 1 of Directive 93/96. paragraph 17. 97 — Cited at footnote 67, paragraph 44.

113. Freedom to provide services and citi- 115. In accordance with that broad inter- zenship of the Union fall to be considered pretation, persons who 'exercise their right as possible bases for asserting such a right to move and reside freely in another in this case. Member State are in principle entitled to treatment no less favourable than that accorded to nationals of that State ...'. 102 In response to the objection that the rules at issue in that case fell within the powers of (1) Freedom to provide services the Member States, the Court reiterated the limits which Community law sets to their powers in that respect, which consist in observance of the prohibition against dis- crimination and the prohibition against 114. As long ago as its judgment in restricting fundamental freedoms. 103 Cowan, 98 the Court of Justice conferred on a Community national staying in another Member State as a tourist a right 99 — See Cuwan, cited at footnote 98, paragraph 10. to victims' compensation under the general 101 — Case C-274/9C |1998| ECR I-7637. 101 — See Bickel Mid 1-rMiz, cited at footnote 100, paragraph principle of equal treatment on the ground 15. 102 — See Btckel ¿ml l-ninz, cited at footnote 100, paragraph 16. 103 — See ¡ìickel .imi l:niiiz, cited at footnote 100, paragraph 98 — Case 186/97 [1989] ECU 195.

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117. 'That characteristic is, however, absent in the case of courses provided under the national education system. First (2) Citizenship of the Union of all, the State, in establishing and main- taining such a system, is not seeking to engage in gainful activity but is fulfilling its duties towards its own population in the social, cultural and educational fields. Sec- ondly, the system in question is, as a general rule, funded from the public purse and not 119. Every person holding the nationality by pupils or their parents. of a Member State 108 is a citizen of the Union and every citizen of the Union has the right to move and reside freely within the territory of the Member States. 109 In Wickel and Franz, the Court expressly referred to citizenship of the Union in examining the legal basis for the plaintiffs' The nature of that activity is not affected by residence. 110 the fact that pupils or their parents must sometimes pay teaching or enrolment fees 107 —See Humbel, cited at footnote 104, paragraphs 18 and 19. 104 — Case 263/86 [1988] ECR 5365. 108 — See Article 8 of the EC Treaty. 105 — See Humbel, cited at footnote 104, paragraph 20 and 109 — See Article 8a of the EC Treaty. point 2 of the operative part. 110 — See Wickel and Franz, cited at footnote 100, paragraph 106 — See Humbel, cited at footnote 104, paragraph 17. 15.

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GRZELCZYK

122. Those limits include Council Direc- tives 90/364, 90/365 and 90/36 on the right 124. Article 55 of the Royal Decree of of residence, all three of which state that 8 October 1981 must be seen in that beneficiaries of the right of residence must context. Under paragraph 4(2) thereof, not become a burden on public finances. 112 the right of residence of a student who is That is why all three of them also provide a Community national and who is in that beneficiaries must have means of principle entitled to reside in Belgium may subsistence in order to exercise a right of be terminated where that student has residence. 113 The condition which the received a certain amount of financial Community legislation imposes on the assistance for a specified period and is not exercise of the right of residence, in con- able to repay that assistance within six junction with the requirement that public months. finances should not be unreasonably 'bur- dened' during residence, may be regarded

111 — Sec Article 8a of the HC Treaty. 112 — Sec the fourth recital in the preamble to Directive 90/364, 125. Within the context described, that cited at footnote 9, the fourth recital in the preamble to Directive 90/365, cited at footnote 10, and the sixth legal situation does not conflict with Com- recital in the preamble to Directive 93/96, cited at footnote 3. munity law. It can therefore be concluded 113 —See Article 1 of Directives 90/364, 90/365 and 93/96 that a Community national who enjoys a respectively. right of residence by virtue of citizenship of

It is not in principle compatible with Community law, in particular with the principles of European citizenship and non-discrimination enshrined in Articles 6 and 8 of the Treaty establishing the European Community (now Articles 12 and 17 EC), for entitlement to a non-contributory social benefit, such as that introduced by Article 7 of the Belgian Law of 7 August 1974 on the 'minimex', not to be available to all citizens of the Union. However, reliance on the principle of equal treatment is subject to strict limitations which apply in any event where recourse to the social assistance system constitutes a ground for terminating the right of residence.

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