CELEX: 62005CJ0010
Freedom of movement for persons
Workers
Family members
Right of a national of a third country married to a Community national to take up an activity as an employed person
Conditions

This reference for a preliminary ruling concerns the interpretation of Article 11 of Regulation (EEC) No 1612/68 of the Council
of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475),
as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1; ‘the Regulation’).
The reference has been made in the course of proceedings between Ms Mattern and Mr Cikotic, on the one hand, and the Ministre
du Travail et de l’Emploi (Minister for Work and Employment), on the other, regarding the latter’s decision to refuse to grant
Mr Cikotic a work permit.

Legal context

Community law
Under Article 39(2) EC freedom of movement for workers entails the abolition of any discrimination based on nationality between
workers of the Member States as regards employment, remuneration and other conditions of work and employment.
Under Article 39(3) EC freedom of movement for workers ‘shall entail the right, subject to limitations justified on grounds
of public policy, public security or public health:
...
(c)      to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals
of that State laid down by law, regulation or administrative action;
…’
Article 3(1) of the Regulation provides:
‘Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a
Member State shall not apply:
–        where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment
or subject these to conditions not applicable in respect of their own nationals; or
–        where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other
Member States away from the employment offered.
–        …’
Article 11 of the Regulation is worded as follows:
‘Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another
Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right
to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals
of any Member State.’

National law
Article 1 of the Grand Ducal Regulation of 12 May 1972, establishing the measures applicable to the employment of foreign
workers within the territory of the Grand Duchy of Luxembourg (
Mémorial
A 1972, p. 945), as amended by the Grand Ducal Regulation of 17 June 1994 (
Mémorial
A 1994, p. 1034) (the ‘Grand Ducal Regulation of 1972’), provides:
‘Without prejudice to the provisions relating to entry into and residence in the Grand Duchy of Luxembourg, no alien may work
in a manual or non-manual capacity in Luxembourg without being authorised to do so pursuant to the present regulation.
…
The provisions of the present regulation shall not apply to workers who are nationals of a Member State of the European Union
or of a State party to the Agreement on the European Economic Area.’
Article 10 of the Grand Ducal Regulation of 1972 makes it possible to refuse to grant a foreign worker a work permit and to
renew it for reasons inherent in the situation, evolution or organisation of the labour market.

The dispute in the main proceedings and the question referred for a preliminary ruling
According to the documents in the case-file submitted to the Court, Mr Cikotic, a national of a third country, is married
to Ms Mattern, of Luxembourg nationality, and they reside in Belgium.
Ms Mattern has followed vocational secondary education training as a family and health care assistant in Belgium. From March
to June 2003, she also attended professional training as a care assistant in that Member State.
By decision of 14 July 2003, the Ministre du Travail et de l’Emploi rejected the application for a work permit submitted on
18 March 2003 to the Luxembourg employment authorities by Mr Cikotic on the basis of a declaration of employment.
In the action brought against that decision before the Tribunal administrative (Administrative Court), the applicants in the
main proceedings submitted that Mr Cikotic was exempt from the requirement to obtain a work permit because, as a citizen of
a third country married to a Community national, he was eligible, pursuant to the principle of freedom of movement for workers,
to take up paid employment in Luxembourg.
By judgment of 29 March 2004, the Tribunal administratif dismissed that action, finding in particular that, because Ms Mattern
did not pursue an activity as an employed person in Belgium, the Regulation was not applicable in the present case.
The Cour administrative (Higher Administrative Court), before which an appeal was brought against that judgment, decided to
stay proceedings and to refer the following question to the Court for a preliminary ruling:
‘Do the Community rules concerning freedom of movement for workers apply to the situation of a national of a third country
married to a Community national who has attended a vocational training course and professional training in a Member State
other than her own, and may therefore the non-Community spouse be exempt from the requirement to obtain a work permit on the
basis of rules guaranteeing to Community nationals and members of their families who are third country nationals the right
to freedom of movement as workers?’

The question referred
Under Article 11 of the Regulation, where a national of a Member State is pursuing an activity as an employed or self-employed
person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or
dependent on him are to have the right to take up any activity as an employed person throughout the territory of that same
State, even if they are not nationals of any Member State.
The right granted to the spouse of a migrant worker by that article is linked to the rights which that worker enjoys under
Article 39 EC (see Case 131/85
Gül
[1986] ECR 1573, paragraph 20).
It follows that the right of a national of a third country married to a Community national to have access to the labour market
of a Member State depends on the rights which that Community national enjoys under Article 39 EC and in particular by reason
of her status as a worker.
As the Court has held, the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must
not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities
on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature
of an employment relationship is, according to that case-law, that for a certain period of time a person performs services
for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85
Lawrie-Blum
[1986] ECR 2121, paragraphs 16 and 17, and Case C-456/02
Trojani
[2004] ECR I-7573, paragraph 15).
In this case, as the decision to refer indicates, after following vocational secondary education training in Belgium, Ms Mattern
completed a professional training period as a care assistant in that Member State.
That training period is liable to confer on Ms Mattern the status of worker for the purposes of Community law.
According to settled case-law, the fact that the training period may be regarded as practical preparation directly related
to the actual pursuit of the occupation in point is not a bar to the application of Article 39 EC if the training period is
completed under the conditions of genuine and effective activity as an employed person (see, in particular,
Lawrie-Blum
, paragraph 19, and Case C-109/04
Kranemann
[2005] ECR I-2421, paragraph 13).
In addition, whilst it is clear that remuneration for services performed constitutes an essential feature of an employment
relationship, the fact remains that neither the origin of the funds from which the remuneration is paid nor the limited amount
of that remuneration can have any consequence in regard to whether or not the person is a worker for the purposes of Community
law (see Case 53/81
Levin
[1982] ECR 1035, paragraph 16, and
Kranemann
, paragraph 17).
It is for the national court, when assessing the facts, for which it alone is competent, to verify whether, in the course
of her professional training period, Ms Mattern pursued a genuine and effective activity as an employed person, in such a
way that she can be regarded as a worker within the meaning of Article 39 EC.
However, it follows from the actual wording of Article 11 of the Regulation that the right of a national of a third country
married to a Community national to have access to the labour market may be relied on only in the Member State where that Community
national pursues an activity as an employed or self-employed person.
As the Advocate General correctly observed in point 33 of her Opinion, the right conferred by Article 11 of the Regulation
on family members of migrant workers to pursue employed activity is not a direct right to free movement, since that provision
benefits the migrant worker whose family includes a national of a third country as a spouse or dependent child.
It is common ground that at the time of the facts in the main proceedings Ms Mattern was not pursuing any activity as an employed
or self-employed person in a Member State other than Belgium.
Accordingly, Mr Cikotic, could rely on Article 11 of the Regulation only in Belgium in order to have access in that Member
State to the labour market under the same conditions as those prescribed for nationals of that State.
In the light of the foregoing, the reply to the question referred must be that Article 11 of the Regulation does not confer
on a national of a third country the right to take up an activity as an employed person in a Member State other than the one
in which his spouse, a Community national, pursues or has pursued an activity as an employed person in exercise of her right
to free movement.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
In circumstances such as those in the main proceedings, Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October
1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July
1992, does not confer on a national of a third country the right to take up an activity as an employed person in a Member
State other than the one in which his spouse, a Community national, pursues or has pursued an activity as an employed person
in exercise of her right to free movement.
[Signatures]
*
Language of the case: French.