C-413/01

OPINION OF MR GEELHOED — CASE C-413/01

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 2 7 F e b r u a r y 2 0 0 3 1

I — Introduction become unemployed and the conditions on the job market have obliged him to under- take occupational retraining in another field of activity.

1. In this case the Verwaltungsgerichtshof wishes to ascertain from the Court whether an EU citizen may be regarded as a worker within the meaning of Article 39 EC on the basis of an employment relationship of limited duration in a Member State of which the person concerned is not a 3. The dispute in the main proceedings national, regard being also had to a number arose because in April 1996 the Austrian of specific activities carried on by the Bundesminister für Wissenschaft, Verkehr person concerned prior to commencement und Kunst (Federal Minister for Science, and following termination of the employ- Transport and Art) refused to grant study ment relationship. finance to an Italian national, Mrs Ninni- Orasche. She married an Austrian in 1993 and since then has been legally resident in Austria. In March 1996 she began studying romance languages in that country after having worked for two and a half months as a waitress/cashier in the summer of 2. If the answer is in the affirmative, the 1995. In the view of the Federal Minister, national court is then seeking clarification the person concerned did not satisfy the of the Court's case-law under which certain conditions laid down by the Court to be rights stemming from the status of a worker accorded the same treatment as an Austrian can also be enjoyed where the employment national. relationship is at an end. A migrant worker may, under certain circumstances, retain this status and thus entitlement to study finance under the same conditions as those which apply to national workers in the host Member State. The most important con- dition is that there is continuity between the occupational activity and the course of study or that the worker has involuntarily 4. Therefore, the essential question is whether Community law confers on Mrs Ninni-Orasche a right to equal treatment as 1 — Original language: Dutch. regards the grant of study finance. In the

8. Article 12 EC prohibits any discrimi- nation on the ground of nationality within the scope of application of the Treaty and without prejudice to any special provisions 5. The questions referred for a preliminary contained therein. ruling concern the freedom of movement for workers secured by Article 39 EC which entails the abolition of any discrimination on the ground of nationality as between workers of the Member States. Under A r t i c l e 7 ( 2 ) of R e g u l a t i o n ( E E C ) N o 1612/68 of the Council of 15 October 9. For the purposes of assessment Council 1968 on freedom of movement for workers Directive 93/96 of 29 October 1993 on the within the Community, 3a worker who is a right of residence for students 4is also of national of a Member State and has availed significance. The sixth recital in the pre- himself of the freedom of movement for amble thereto provides that 'beneficiaries workers is to enjoy in the host Member of the right of residence must not become State 'the same social... advantages as an unreasonable burden on the public national workers'. finances of the host Member State'. Under Article 1:

2 — Case C-184/99 [2001] ECR I-6193. 3 — OJ, English Special Edition 1968 (II), p. 475. 4 — OJ 1993 L 317, p. 59.

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10. The national legal framework is con- 12. The appellant in the main proceedings stituted by the Austrian Studienförderungs- is an Italian national and has been married gesetz 1992 (Law for the Promotion of to an Austrian since 18 January 1993. She Education), 5which contains the conditions h a s b e e n l i v i n g in A u s t r i a s i n c e relating to acquisition of the right to study 25 November 1993 and on 10 March 1994 finance. It appears from the case-file that received a residence permit valid until Paragraph 6 of this law sets out a number 10 March 1999. With this permit she also of objective criteria which must be satisfied acquired the right to take up and pursue activities as an employed person in the territory of Austria under the same con- 5 — BGBl. No 305, 1992. ditions as an Austrian worker.

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16. In March 1996 she began studying romance languages at the University of 18. Having regard to the case-law of the Klagenfurt, specialising in Italian and Court of Justice on Article 39 EC and French. On 16 April she submitted an Articles 7(2) of Regulation N o 1612/68 of application for study finance under the the Council on freedom of movement for Studienförderungsgesetz which was workers, and the relevance of these articles rejected by the Federal Minster for Science, to higher education, the Verwaltungsger- Transport and Art. In the view of the ichtshof considers that two questions of Federal Minister, the reference in Para- European law are important, that is to say graph 4(1) of the Studienförderungsgesetz whether the appellant is a (migrant) worker 1992 to the EEA Agreement relates to the within the meaning of Article 39 EC and, if principle of non-discrimination contained so, whether she gave up her job voluntarily in Article 12 EC, freedom of movement for or involuntarily.

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19. Therefore, by order of 13 September 1.2.3 the fact that she attempted to 2001 the Verwaltungsgerichtshof requested find a new job in the period that the Court give a preliminary ruling on between the end of the short, the following questions: fixed-term employment rela- tionship and the time when she took up her studies?

'1. 1 Does the fact that an EU citizen works for a short period (two and a half months) that is fixed from 2. If she is a (migrant) worker under the outset in a Member State of Question 1: which she is not a national confer on her the status of a worker under Article 48 of the EC Treaty (now Article 39 EC)? 2. 1 Does the termination, by expiry of time, of an employment rela- tionship which is limited from the outset to a fixed term constitute a voluntary termination? 1. 2 When determining whether she is a worker in the above sense in such a case, are any of the following circumstances significant:

20. In the proceedings before the Court written observations were submitted by the 23. Furthermore, I consider that the Court Governments of Austria, Germany, the cannot merely give a limited answer to the United Kingdom and Denmark and by the questions referred by the national court. Commission. There was no hearing. The issues arising in the main proceedings concern not only whether Mrs N i n n i - Orasche is a migrant worker and whether the termination, by expiry of time, of a temporary employment relationship consti- tutes a voluntary termination. On the IV — Assessment question of whether C o m m u n i t y law confers on Mrs Ninni-Orasche a right of access to the system of study finance, in my view, the Court will, in giving its answer, A — Introduction inevitably also have to take account of factors of Community law which, strictly speaking, lie outside the scope of the 2 1 . As is evident from the description of the facts and the explanation which the 6 — See, amongst other authorities, Case C-3/90 Bernini [1992] Verwaltungsgerichtshof provided in the ECR I-1071, paragraph 25, in which it was held that study finance granted by a Member State to the children of reference for a preliminary ruling, the workers constitutes for a migrant worker a social advantage substance of the dispute concerns the w i t h i n the m e a n i n g of Article 7(2) of R e g u l a t i o n N o 1612/68 where the worker continues to support the question whether Mrs Ninni-Orasche is child.

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questions referred. In addition to the doc- concept has a Community meaning and trine of the abuse of Community law and must be interpreted broadly since it defines the application of Article 7(2) of Regu- the scope of one of the fundamental free- lation N o 1612/68 (Sections B and C), this doms guaranteed by the Treaty. 8 will include, in particular, the provisions relating to citizenship of the Union (Section D).

27. The scope of the additional require- ment that the activity be 'effective and genuine' is central to the first question. The Verwaltungsgerichtshof asks the Court to provide clarification of the relevance of the B — The first question concerning the duration of the employment relationship concept of 'worker' and the conduct of the person concerned prior to commencement and following termination thereof. 25. There is detailed case-law in which a number of objective criteria have been developed for determining whether or not 8 — See, for example, Case 139/85 Kempf [1986] ECR 1741, paragraph 13, and Case 66/85 Lawrie-Blum [1986] ECR a person is a 'worker' within the meaning 2 1 2 1 , paragraph 16. of the Treaty. As is well known, the 9 — See, inter alia, Lawrie-Blum cited in footnote 8, paragraph 17; Bernini, cited in footnote 6, paragraph 14; and Case C-357/89 Raulin [1992] ECR I-1027, paragraph 10. 10 — S e e , primarily, Case 152/73 Sotgiu [1974] ECR 153, paragraph 5. In that case the Court held that what is now 7 — In accordance with settled case-law such as, for example, Article 39 EC draws no distinction between terms of Bernini, cited in footnote 6, paragraph 19. employment under public law and those under private law.

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30. Young persons seeking their first job have not yet entered the labour market and thus have naturally not pursued any occu- pational activity which is effective and genuine. 1 1 On the other hand, the Court 32. Raulin concerned, inter alia, the ques- has ruled that the pursuit of a part-time tion whether a worker on an on-call activity as an employed person, 1 2whereby contract for eight months who worked as normally no more than even 10 hours a a waitress five hours a day for only twelve week are worked, 1 3does not as such days must be regarded as having exercised preclude classification as a worker. an activity which is purely marginal and ancillary. The Court held that the fact that the person concerned worked only a very 11 — See recent judgment in Case C-224/98 D'Hoop [2002] limited number of hours in a labour ECR I-6191, paragraph 18. Therefore, Community law on relationship may be an indication that the freedom of movement for workers is, in relation to national rules concerning unemployment insurance, by activities exercised are purely marginal and definition not applicable to them. 12 — Case 53/81 Levin [1982] ECR 1035, paragraph 17. 13 — Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 16. The case concerned the interpretation of Article 119 of 14 — Lawrie Blum, cited in footnote 8, paragraphs 19 to 2 1 ; the EC Treaty (now Article 141 EC). Bernini, cited in footnote 6, paragraph 15.

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that the host Member State cannot make the right to the same social advantages provided for in Article 7(2) of Regulation N o 1612/68 conditional upon a minimum period of prior occupational activity within the territory of that State. 18 33. Therefore, the broad interpretation of the concept of 'worker' means that the Court does not exclude the possibility that a trainee pursuing an activity as an employed person for 10 weeks, or an on-call worker who has ultimately worked for only 60 hours may acquire the status of a worker. 16The duration of the activities is not in itself decisive. Ultimately, the ques- tion whether or not the work undertaken was purely marginal and ancillary also turns on other factors, in particular the nature of the activities concerned (a train- ing period is serious only where a sufficient number of hours are completed in order to allow for familiarity with the work) 1 7and 35. It follows from the foregoing that an the nature of the employment relationship EU citizen who has undertaken actual work (the irregular nature of the services actually as an employed person for two and a half performed under a contract for occasional months can in principle be a worker within employment). the meaning of Article 39 EC. The case-file shows that during this period Mrs Ninni- Orasche pursued activities as a waitress/ 15 — Raulin, cited in footnote 9, paragraph 14. cashier and as the person responsible for 16 — S e e also Case C-22/98 Becu and Others [1999] ECR managing the stocks and for purchasing I-5665, paragraphs 25 and 26.

However, ECR 1621, paragraph 17, according to which work for the purposes of social employment cannot be regarded as an effective and genuine economic activity if it constitutes merely a means of rehabilitation or reintegration for the persons concerned and the purpose of the adapted 18 — Case 39/86 Lair [1988] ECR 3 1 6 1 , paragraph 44. employment is to enable those persons sooner or later to Emphasis added. See also Case 197/86 Brown [1988] recover their capacity to take up ordinary employment or ECR 3205, paragraph 22, and Case 157/84 Frascogna to lead as normal as possible a life. [1985] ECR 1739.

37. In my view, these facts are irrelevant in determining the status of a worker within 39. In concluding the assessment of the first the meaning of Article 39 EC. They are question, the issue of abuse must be unconnected with the abovementioned addressed. In its statement of grounds the objective criteria which under the case-law Verwaltungsgerichtshof pointed to the risk are to be used in determining whether a of abuse and the United Kingdom Govern- person has the status of a worker. Accord- ment in particular examined this matter in ing to settled case-law, Community law its written observations. The abuse, it does not impose any additional conditions claimed, is constituted by the fact that for a person to be classifiable as a worker Mrs Ninni-Orasche intentionally worked other than the objective criteria referred to for only a few months in order sub- above. 20Furthermore, the three factors are sequently to be able to have recourse, as a unconnected with the possible ancillary worker within the meaning of the Treaty, nature of the work undertaken. None of to the social advantages which are associ- them gives any insight into the substance of ated with study finance and which are the activities pursued and the nature of the granted solely to persons who previously employment relationship. enjoyed the status of a worker. Essentially, she is a student who is artificially and incorrectly trying to pass herself off as a 19 — The case-file does not show, inter alia, how many hours worker. The United Kingdom Government she worked in the two and a half months or whether, for example, she was available on the basis of an on-call points to a number of objective circum- contract. stances which, in its view, might indicate 20 — See, for example, Brown, cited in footnote 18, paragraph 22. that the person concerned did not pursue,

and did not endeavour to pursue, employ- 4 1 . Therefore, in my view, status as a ment of an effective and genuine nature. 21 worker within the meaning of Article 39 EC is not precluded by the fact that an activity was pursued for a period of only two and a half months on a temporary contract if it is established that an effective and genuine activity was pursued. In that respect it is irrelevant that the person concerned took up the job only some years after his entry into the host State, that shortly after the end of her short, fixed- term employment relationship she obtained a diploma in the Member State of origin 40. It is settled case-law that the benefici- making her eligible for entry to university aries of the rights granted under the EC in the host Member State, or that she Treaty may not abuse such rights in order attempted to find a new job after her to evade the application of national law in employment had come to an end. an unacceptable manner. Whatever else is established in this case-law, 22 I, like the Commission, consider that the doctrine of the abuse of C o m m u n i t y law is not material to the answer to be given to the first question. It is directed at the criteria relating to status as a worker. The possible abuse by the person concerned of the rights conferred on a worker by Community law C — The second question concerning the must not be confused with the question right to study finance once a worker is no whether or not a national is a worker longer employed within the meaning of Article 39 EC. There can be abuse of a right only after it has been established that the person concerned is ratione personae a beneficiary under Com- munity law. 23 Therefore, this concept has more of a connection with the second 42. Once the employment relationship has question which concerns the possible grant ended, the person concerned as a rule loses to an EU national of a entitlement under the status of a worker and thus also the Community law. right to the same social advantages within the meaning of Article 7(2) of Regulation N o 1612/68. However, migrant workers 21 — In particular the short duration of the contract of are guaranteed certain rights linked to the employment, the fact that the person concerned did not come to Austria to work but only took up employment of status of a worker even when they are no short duration some years after entry into the State and the fact that shortly after the end of her working activities she longer in an employment relationship. 24If satisfied the conditions for entry into university and also the first question is answered in the affirm- made use thereof. 22 — See my Opinion of today's date in Case C-109/01 Akrich ative, the Verwaltungsgerichtshof is essen- [2003] ECR I-9607, I-9610, paragraph 96 et seq. tially asking in the second question whether 23 — See Lair, cited in footnote 18, according to which a national of a Member State may claim the rights conferred by Community law only in his capacity as a worker within the meaning of Article 39 EC and Regulation N o 1612/68 (paragraph 41). 24 — Case C-85/96 Martínez Sala [1998] I-2691, paragraph 32.

46. Furthermore, the Court has laid down 44. The referring court, the Commission a number of safeguards against abuse. A and the governments which have submitted worker does not gain access to the social observations analysed the specific con- advantages where he enters into an employ- ditions laid down by the Court concerning ment relationship for a particular period the right to equal treatment enjoyed by with a view subsequently to undertaking such migrant workers as regards access to university studies and where he would not the maintenance grant system. The relevant have been employed by his employer if he case-law consists in particular of the judg- had not already been accepted for admis- ments in Lair, Brown, Raulin and Bernini sion to university. In such circumstances, and may be summarised as follows. the employment relationship, which is the only basis for the rights deriving from Regulation N o 1612/68, is merely ancillary 25 — In Martínez Sala, cited in footnote 24, paragraph 25, the Court describes the settled case-law on the content of the to the studies to be financed by the grant. 28 concept of 'social advantage' referred to in Article 7(2) of Moreover, the Court has held that where it Regulation N o 1612/68 as follows: 'all the advantages which, whether or not linked to a contract of employment, may be established on the basis of objective are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the 2 7 — See, for example, Lair, cited in footnote 18, paragraphs 37 mobility of such workers within the Community...'. and 38. 26 — Lair, cited in footnote 18, paragraph 28. 28 — Brown, cited in footnote 18, paragraphs 27 and 28.

47. Finally, in this connection as well it is for the national court to investigate the facts. It is for it to assess whether the occupational activities pursued previously in the host country, whether or not inter- 50. Conversely, the Commission takes the rupted, disclose a relationship with the view that the 'voluntary nature' of the subject-matter of the studies. In that con- unemployment does not necessarily depend nection it is for that court to take into on the personal volition of the worker. account the various factors material to that With reference to Tetik it states that the assessment, such as the nature and the concept of involuntary unemployment diversity of the activities pursued and the m e a n s t h a t the inactivity c a n n o t be duration of the period between the end of attributed to the worker. 3 1In the Com- those activities and the commencement of mission's view the end of a temporary the studies. 3 0 contract of employment does not give rise to 'voluntary unemployment' unless, upon termination of the temporary employment r e l a t i o n s h i p , the w o r k e r specifically expressed a desire not to be considered for extension of the contract.

practices in the field of activity concerned, 53. In my view, the national court must the duration of the contract, the chances of take particular account of the character- finding a job which is not temporary, and istics of the job market which is relevant to the personal interest of the appellant in the the worker. In certain occupations tempor- main proceedings in entering into an ary contracts of employment are much employment relationship for only a fixed used; there can be various reasons for this. term.

In such cases the termination of a temporary employ- ment contract does not necessarily mean that the worker concerned is voluntarily u n e m p l o y e d . W h e n entering into an employment relationship the worker often 52. I agree with the thrust of the argument has no real influence over the choice of the put forward by the Danish Government. type of contract. For economic and social An employment relationship which is reasons he himself would as a rule prefer a limited from the outset to a fixed term contract of unlimited duration. and the expiry of the period of employment laid down in a temporary contract of employment cannot be decisive as to whether a worker's unemployment is vol- untary or involuntary. 3 2 Incidental circum- stances must be taken into account to establish whether such unemployment is 54. On the other hand, situations are con- attributable to the worker and they must be ceivable in which a worker intentionally examined by the national court. These opts for a temporary employment relation- circumstances are connected, on the one ship. A worker may wish to gain experience hand, with the working environment in with various employers, for example, by which the worker finds himself and, on the performing agency work.

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unemployment. In such a case the person 57. The views of the intervening Member concerned loses his status of worker States and the Commission coincide in this because there is no reason for it to be regard or form part of the answer to the extended, that is to say that the conditions first limb of the second question. The on the job market do not oblige him to Austrian Government takes the view that undertake occupational retraining. the obtaining of a diploma conferring eligibility in the period between the end of the employment relationship and the com- mencement of the course of study proves that the unemployment was not involun- tary. The German Government and the Commission have pointed out that the abovementioned circumstances are irrel- evant in assessing whether or not the end of an employment relationship is voluntary. 55. In the light of the foregoing, it is now However, the Commission considers that necessary to examine the other circum- the factors may be relevant in determining stances outlined by the national court in the whether or not the appellant in the main second part of the second question. proceedings can assert a right to support for a university education. The United Kingdom Government considers that these factors are relevant in determining whether or not the appellant in the main proceed- ings artificially created a situation in which she was unemployed in order to obtain a maintenance grant in which case there is, in its view, abuse.

State, nor the attempt to find other employ- diploma in accounting and commerce ment, nor the level of employment sought, attained by Mrs Ninni-Orasche, which have any connection with the employment makes her eligible for entry to university, relationship from which the worker derived may indicate some connection with the his status. In both cases higher levels of earlier administrative activities on account education can be attained and other of the commercial content thereof. What is employment sought irrespective of whether i m p o r t a n t is the c o n t i n u i t y between a person has become unemployed volun- employment and study and not the nature tarily or involuntarily. At most the fact that of the diploma granting admission to a an unsuccessful attempt was made to find university course of study. new employment provides support for the view that the unemployment might not have been entirely involuntary.

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argument that it is necessary, on account of — following involuntary unemployment, conditions on the job market, to study the conditions on the employment romance languages in conjunction with a market in the host Member State oblige function in another field of activity is a him to u n d e r t a k i n g o c c u p a t i o n a l fortiori rather implausible. retraining in another field of activity.

Whether there is a substantive relationship 63. Nevertheless, it is for the national court between the previous occupational activ- actually to determine, on the basis of all ities and the subsequent course of study, or objective and relevant circumstances, whether there is involuntary unemploy- whether or not the appellant in the main ment, and whether the conditions on the proceedings is able to have recourse to job market indicate that retraining is social advantages within the meaning of necessary to carry on another occupational Article 7(2) of Regulation N o 1612/68. activity, are matters to be determined on the basis of the objective circumstances of the case.'

64. I therefore propose the following answer to the second question:

D — The right to study finance by virtue of citizenship of the Union

66. In that regard the question that first arises is whether, in the present case, the Court should rule at all on the interpre- tation of the abovementioned provisions of the Treaty. The reference from the national 69. In the present case this is evident for a court does not seek interpretation of those number of reasons. Firstly, the national provisions and the appellant in the main court made the order for reference shortly proceedings has also not requested such before the Court gave its judgment in interpretation. Grzelczyk. Furthermore, the case-law con- cerning citizenship is still being developed. The Court has recently given a number of other relevant judgments. 3 5Secondly, I consider that the matters indicated in the order for reference are sufficient to provide 67. The Commission takes the view that the Verwaltungsgerichtshof with a satisfac- such a ruling is appropriate and in that tory answer regarding Articles 12, 17 and connection refers to the settled case-law of 18 EC. It is beyond dispute that Mrs the Court and the principle of procedural Ninni-Orasche seeks to derive the right to economy. The Danish Government does study finance from C o m m u n i t y law. not consider it necessary for the facts to be Thirdly, the relevant national legislation assessed in the light of those provisions of at issue does not, as regards the right of Community law but has submitted obser- nationals of other Member States to study vations thereon should the Court take a finance, refer only to the Treaty provisions different view. relating to workers. According to the order for reference, Mrs Ninni-Orasche appealed against the decision of the Federal Minister also on grounds of 'infringement of Com- munity law' and the Treaty provisions relating to citizenship which form part 68. In order to provide a satisfactory thereof. Fourthly, as the Commission has answer to the referring court, the Court correctly noted, an examination at this may deem it necessary to consider provi- stage of the Treaty provisions on citizen- sions of Community law to which the ship will avoid a situation in which the national court has not referred in its ques- national court is obliged to refer to the tion. 3 4 In my view, there can be no Court for a preliminary ruling questions on objection to a judgment of the Court on that matter at second instance.

7 1 . The Danish Government adds a n u m b e r of c r i t i c a l o b s e r v a t i o n s t o Grzelczyk which it regards as inconsistent with the clear wording of Article 3 of Directive 93/96. It reiterates its view, which has already been put forward in the pro- ceedings in Grzelczyk, that citizenship of the Union may not be taken to mean that such citizens have obtained rights that are 74. In principle Union citizenship enables more extensive than those already stem- nationals of Member States in the same ming from the EC Treaty and secondary situation to enjoy the same treatment in legislation. law irrespective of their nationality. EU nationals may invoke Article 17 EC, read in conjunction with Article 12 EC, which prohibits discrimination on grounds of nationality, as from the entry into force of the provisions on Union citizenship. 3 7

72. I consider the Commission's assessment 36 — See Martinez Sala, cited in footnote 24, paragraph 61. is correct but too limited. I do not share the 37 — See, for example, D'Hoop, cited in footnote 11, para- Danish Government's view that the provi- graphs 25, 27 and 28.

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38 — See, for example, Grzelczyk, cited in footnote 2, paragraph 41 — Council Directive 93/96/EEC of 29 October 1993 on the 32. right of residence for students (OJ 1993 L 317, p. 59). 39 — See Baumbast, cited in footnote 35, paragraphs 81 to 84. 42 — Grzelczyk, cited in footnote 2, paragraphs 34 to 37 and 40 — Baumbast, cited in footnote 35, paragraph 86. 46.

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Court consequently infers that 'there are no 80. Moreover, it must be assumed that the provisions in the directive that preclude appellant in the main proceedings does not those to whom it applies from receiving have the status of a worker and exercises social security benefits'. Furthermore, it is no other fundamental economic freedom clear from the sixth recital in the preamble within the meaning of the Treaty. Nor does that beneficiaries of the right of residence the case-file show that her Austrian spouse 'must not become an " u n r e a s o n a b l e " avails himself of one of the fundamental burden on the public finances of the host e c o n o m i c f r e e d o m s g r a n t e d by t h e Member State'. The Court therefore con- Treaty. 46 Therefore, she may not invoke cludes that Directive 93/96, like Directives the rights which economically active 90/364 and 90/365, 4 3accepts 'a certain citizens and their family members enjoy. degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particu- larly if the difficulties which a beneficiary of the right of residence encounters are temporary'. 44

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82. However, it is realistic to assume that 85. Firstly, let us take the case in which the directive on the right of residence for Mrs Ninni-Orasche could avail herself of students is not directly relevant to Mrs the entitlements conferred on migrant stu- Ninni-Orasche. For Directive 93/96 is dents by Directive 93/96. In this case intended to lay down conditions 'to facili- Grzelczyk is relevant but in my view this tate the exercise of the right of residence judgment is of no assistance to the appel- and with a view to guaranteeing access to lant in the main proceedings. vocational training for a national of a Member State who has been accepted to attend a vocational training course in another Member State' (Article 1). There are grounds for believing that Mrs Ninni- Orasche does not fall within the scope thereof because she derived her right of residence from national law in 1996 and had no need at all of a right of residence 86. Thus, the factual situation in the two under the directive. cases differs. Grzelczyk concerned an EU national who for a number of years had had sufficient resources as a student and had only one year left to complete his studies. Without assistance he risked losing his residence permit in the Member State in which he was studying and thus being 83. However, even on the supposition that unable to complete his studies. The Court the residence permit has a basis purely in took account of these specific circum- national law, there is nothing to prevent stances of the case in its judgment. Mrs Ninni-Orasche from relying on her status as a Union citizen. Moreover, I consider that, where statuses vary or over- lap under Community law and national law, she may rely on the most favourable set of rules. 47

90. Although Grzelczyk concerned a dif- 88. I infer from the grounds in Grzelczyk, ferent case, the tenor of that judgment must in particular the reference to 'a certain nevertheless be applied in a situation in degree of financial solidarity' in connection which an EU national falls victim to with the particular situation in which the unacceptable discrimination. In my view, student concerned found himself, that this the principle of a minimum degree of judgment specifically did not seek to over- financial solidarity can, in specific, objec- ride the basic conditions laid down by the tively verifiable circumstances, create a three directives on residence, that is to say right to equal treatment. that EU nationals who move to another Member State to become established there must show that they have the necessary resources so as not to be reliant on social security benefits in the host Member State. Within the framework of the directive on 91. This is so where an EU national has the right of residence for students, this already resided legally for a considerable means that a national of a Member State time in another Member State in a capacity who begins a course of study in another which is not connected primarily with the Member State may not have recourse to exercise of the fundamental economic free- maintenance grants in the host State. This doms granted by the Treaty and where the restriction on the rights of migrant students residence permit is also not dependent on is expressed unequivocally in Article 3, that university studies which the person con- is to say in the operative part of the cerned has commenced in the host State. I directive. consider that such a situation must, for a number of reasons, be placed within the scope of the Treaty, with the result that the EU national acquires the right to equal treatment in law.

94. Thirdly, there are, in the abovemen¬ tioned circumstances, no grounds for not treating an EU national in the same way as other beneficiaries under Community law such as, in particular, workers and their family members. As I stated previously in my opinion in Baumbast, the provisions on citizenship of the Union have added value 93. Secondly, the importance of education, for the group of economically non-active and in particular university education, has citizens 50 to whom the right to equal now been broadly recognised within the treatment is important. context of the objectives of the EC Treaty. In Grzelczyk and D'Hoop the Court linked the Treaty provisions on education and vocational training with the applicability of Articles 12 and 17 EC. It is clear from Grzelczyk that the judgment in Brown in 1988, according to which at that stage in the development of Community law, assist- 95. In the present case there are certain ance given to students for maintenance and further reasons for granting these addi- training fell in principle outside the scope tional rights to Mrs Ninni-Orasche. At the of the Treaty, became obsolete following time at which she commenced her studies the introduction into the Treaty of the (March 1996) she had already been resi- provisions on citizenship and on education dent in Austria for over two years and her and vocational training. 48 In D'Hoop the residence permit was valid for a further Court ruled that national legislation was three years. In view of her marriage to an precluded which placed Belgian nationals Austrian national even after 1999 she who had had all their secondary education plainly retained a right of residence in in Belgium at an advantage over those who, respect of the remainder of her period of having availed themselves of their freedom study. In addition, she obtained the Italian to move, had obtained their diploma of diploma granting her the right to enter a completion of secondary education in university in Austria immediately prior to another Member State. 49 This case-law commencing her studies. There is clearly no shows that students who take up courses abuse in the sense of Mrs Ninni-Orasche

98. Inequality of treatment can be justified only if it is based on objective consider- ations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provi- 96. Although, as Community law now sions. 5 1 Although I have strong doubts as stands, social security benefits, and in to whether an objective ground exists in the particular rights to study finance, are not present case, 52 no reasoned view can be harmonised, this fact cannot be used as an given on this matter. Neither the national argument against EU nationals who are in a court nor the parties which submitted specific situation and have already resided written observations have examined it. legally for a considerable period in another Therefore, the national court in the main Member State before claiming social bene- proceedings will have to carry out that fits. In that case there is a need for a examination as to the substance. minimum degree of financial solidarity towards those residents who are students having the nationality of another Member State. I consider that precisely a resident in the situation of Mrs Ninni-Orasche, who has a demonstrable and structural link to Austrian society, cannot be treated in the host State as any other national of a third country. 99. In my view, Articles 12 and 17 EC confer on EU nationals who have already

V — Conclusion

100. In light of the foregoing I propose that the Court should answer the questions referred by the Verwaltungsgerichtshof for a preliminary ruling as follows:

(1) Status as a worker within the meaning of Article 48 of the EC Treaty (now Article 39 EC) is not precluded by the fact that an activity was pursued for a period of only two and a half months on a temporary contract if it is established that an effective and genuine activity was pursued. In that respect it is irrelevant that the person concerned took up the job only some years after her entry into the host State, that shortly after the end of her short, fixed-term employment relationship she obtained a diploma in her State of origin conferring eligibility for entry to university in the host State, or that she attempted to find a new job after her employment relationship had come to an end.

(2) A national of another Member State who commences university studies in the host Member State, having carried on an occupational activity there, may rely

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OPINION OF MR GEELHOED — CASE C-413/01