Opinion of the Advocate General — ECLI:EU:C:2005:789
Date: 2005-12-15
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

summary: Where a worker who has exercised his right to freedom of movement returns to the Member State of which he is a national, Article 11 of Regulation No 1612/68 confers on his spouse who is a national of a third country a right to take up any activity as an employed person throughout the territory of that same State. B – Derived right to take up and pursue an employed activity under Article 2(2) of Directive 93/96 51. If the national court should hold that the professional training Ms Mattern attended in Belgium did not satisfy the requirements for being a real and genuine activity, but instead was on such a small scale as to be purely marginal and ancillary, then she could not be regarded as a worker. The same would apply if Ms Mattern did not receive any remuneration for the professional training – not even of a limited amount. (39) 52. However, this does not by any means take Ms Mattern and Mr Cikotic outside the scope of application of Community law. Instead, it might be possible for them to rely on the Student Directive, which I shall now consider briefly on a subsidiary basis. 53. Contrary to what its title suggests, the Student Directive does not apply only to persons attending university or technical college. Instead, its substantive scope of application is engaged wherever a national of a Member State is resident in a Member State other than his home State and is enrolled in a recognised educational establishment for the principal purpose of following a vocational training course there (last clause of Article 1 of Directive 93/96). It follows that a vocational training course such as Ms Mattern’s training in Belgium is encompassed by the Student Directive. Furthermore, this corresponds to the purpose of the Student Directive, which is generally to guarantee access by nationals of one Member State to vocational training in other Member States. (40) 54. It is apparent from the second paragraph of Article 2(2) of the Student Directive that as the spouse of a citizen of the Union who is lawfully (41) resident in a Member State for the purpose of receiving vocational training Mr Cikotic is entitled to take up any employed activity anywhere within the territory of that Member State, regardless of his own nationality. 55. This provision’s territorial scope of application is congruent with that of Article 11 of Regulation No 1612/68 (‘anywhere within the territory of that Member State’). In addition, as regards the legal position of members of students’ families the Student Directive is based on similar considerations to Regulation No 1612/68 and pursues comparable objectives. In particular, the eighth recital of the Directive states that a student’s right of residence can only be genuinely exercised if it is also granted to the members of his family. The promotion of family life and the integration of the family into the host Member State are thus important within the framework of the Student Directive too. In the light of this, what has been stated above as regards Regulation No 1612/68 may be applied also to the Student Directive. (42) 56. Given that Ms Mattern moved abroad, the present case does not concern a purely domestic situation. Following the introduction of the general right to freedom of movement (Article 18(1) EC), in moving his residence to a different country a citizen of the Union exercises a right conferred by Community law. (43) 57. In addition, Ms Mattern moved to another Member State as a student to receive vocational training. Such residence abroad may also be of advantage to the student’s future career in his home Member State. (44) For example, on returning to his home Member State the student may undergo further training, or may immediately start to pursue professional activity. Therefore, the rights conferred by the Student Directive on Ms Mattern and her spouse may be relied on as against her home State, Luxembourg. (45) VI – Conclusion 58. In the light of the foregoing analysis it is suggested to the Court that it should answer the Luxembourg Cour administrative as follows: 1) Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community does not confer on a national of a third country a right to take up activity as an employed person in a Member State other than the one in which his spouse is pursuing employed or self-employed activity in exercise of her right as a national of a Member State to free movement. 2) Where a worker who has exercised his right to freedom of movement returns to the Member State of which he is a national, Article 11 of Regulation No 1612/68 confers on his spouse who is a national of a third country a right to take up any activity as an employed person throughout the territory of that same State. 1 – Original language: German. 2 – Higher Administrative Court. 3 – OJ, English Special Edition 1968 (II), p. 475. Article 11 of Regulation No 1612/68 was repealed and replaced by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, corrected in OJ 2004 L 229, p. 35; hereinafter ‘Directive 2004/38’). However, this amendment does not take effect until 30 April 2006 and is therefore irrelevant to the facts of the main proceedings. 4 – OJ 1993 L 317, p. 59. Directive 93/96 was repealed and replaced by Directive 2004/38. However, this amendment does not take effect until 30 April 2006 and is therefore irrelevant to the facts of the main proceedings. 5 – It does appear from the file that in the present case the Luxembourg authorities applied in particular the following provisions of national law: Article 27 of the Law of 28 March 1972, as amended (Loi modifiée du 28 mars 1972 concernant (1) l’entrée et le séjour des étrangers; (2) le contrôle médical des étrangers; (3) l’emploi de la main-d’œuvre étrangère) and Article 10 of the Grand-Ducal Regulations of 12 May 1972 as amended (Règlement grand-ducal modifié du 12 mai 1972 déterminant les mesures applicables pour l’emploi des travailleurs étrangers sur le territoire du Grand-Duché de Luxembourg). 6 – It appears from the file that this was professional training as a care assistant (aide soignante) undertaken from March to June 2003. 7 – Formation d’auxiliaire familiale et sanitaire à l’enseignement secondaire professionel. 8 – Certificat de qualification de sixième année de l’enseignement secondaire professionel, issued on a temporary basis on 30 June 2003 in Aubagne (Athus) by the Athénée Royal Athus. 9 – The date the declaration was lodged with the Luxembourg employment authorities (Administration de l’Emploi). 10 – Déclaration d’Engagement tenant lieu de demande en obtention du permis de travail. 11 – Ministre du Travail et de l’Emploi. 12 – See the undisputed statements in the plaintiffs’ written pleadings before both the courts in the main proceedings. 13 – For example, Article 28 of the Agreement on the European Economic Area (OJ 1994 L 1, p. 1) provides for a comprehensive extension of free movement of workers throughout the EEA; for Swiss nationals the applicable agreement is the bilateral Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114, p. 6). A less extensive measure is the Agreement establishing an Association between the European Economic Community and Turkey (OJ 1977 L 361, p 1) and the implementation measures for it in Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (see inter alia Article 12 of the Association Agreement and Article 6 of Decision No 1/80). 14 – For recent developments in this area, see for example the Commission Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities COM(2001) 386 final (OJ 2001 C 332 E, p. 248); for future development see also Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), and in particular Articles 11 and 14 thereof. 15 – A corresponding provision having horizontal effect shall come into force on 30 April 2006, namely Article 23 of Directive 2004/38 for family members of citizens of the Union. This provision will replace both Article 11 of Regulation No 1612/68 and the second paragraph of Article 2(2) of Directive 93/96. 16 – Case C-138/02 Collins [2004] ECR I-2703, paragraph 26; Case C-456/02 Trojani [2004] ECR I‑7573, paragraph 15; and Case C-109/04 Kranemann [2005] ECR I‑2421, paragraph 12. See also Case 75/63 Hoekstra(née Unger) [1964] ECR 177, p. 184 et seq.; Case 53/81 Levin [1982] ECR 1035, paragraphs 11 and 13; Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 16; Case 344/87 Bettray [1989] ECR 1621, paragraph 11; Case C‑3/90 Bernini [1992] ECR I-1071, paragraph 14; Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13; and Case C‑188/00 Kurz [2002] ECR I-10691, paragraph 32. 17 – See Lawrie-Blum, paragraph 17; Bettray, paragraph 12; Bernini, paragraph 14; Meeusen, paragraph 13; Kurz, paragraph 32; Collins, paragraph 26; Trojani, paragraph 15; and Kranemann, paragraph 12 (all cited above, footnote 16). 18 – Levin, paragraph 16; Lawrie-Blum, paragraphs 20 and 21; Bettray, paragraphs 15 and 16; Kurz, paragraph 32; Trojani, paragraph 16; and Kranemann, paragraph 17 (all cited above, footnote 16). 19 – Bettray, paragraph 13; Bernini, paragraph 14; Meeusen, paragraph 13; Collins, paragraph 26; Trojani, paragraph 15; and Kranemann, paragraph 12 (all cited above, footnote 16). 20 – Bernini, paragraph 15; see also Lawrie-Blum, paragraphs 19 to 21; and Kranemann, paragraph 13 (all cited above, footnote 16). 21 – See the consistent case-law of the Court, and for a recent judgment see Joined Cases C-211/03, C‑299/03, and C‑316/03 to C‑318/03 HLH Warenvertriebs [2005] ECR I-0000, paragraph 96. 22 – Bernini (cited above, footnote 16), paragraph 16. 23 – The other possibility mentioned in Article 11 of Regulation No 1612/68, namely self-employed activity, is not relevant in the present case. 24 – Equivalent wording is found in the French, Italian, Portuguese and Dutch language versions. By contrast, the Danish, English, Finnish, Swedish and Spanish language versions of Article 11 of Regulation 1612/68 refer to the pursuit of an activity in the territory of ‘another’ Member State. 25 – In that connection it is to be recalled that in spring 2003 Mr Cikotic was in Belgium while seeking work in Luxembourg, and that on 18 March 2003 a Luxembourg company applied to the authorities there for a work permit for him. The refusal by the Luxembourg Minister for Work and Employment was dated 14 July 2003. 26 – See the fifth recital of Regulation No 1612/68. As regards the importance of family life for the purposes of the provisions relating to free movement of workers, see also Case C-157/03 Commission v Spain [2005] ECR I-2911, paragraph 26; Case C-459/99 MRAX [2002] ECR I-6591, paragraph 53; Case C-60/00 Carpenter [2002] ECR I-6279, paragraphs 38, 39 and 42; Case C-356/98 Kaba [2000] ECR I-2623, paragraph 20; and Case C-308/89 Di Leo [1990] ECR I-4185, paragraph 13. 27 – European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. 28 – OJ 2000 C 364, p. 1. Although the Charter of fundamental rights does not yet have binding legal effect comparable to that of primary law, it does at least, as a legal reference, provide information on the fundamental rights guaranteed by the Community legal order. See my Opinions in Case C-540/03 Parliament v Council [2005] ECR I-0000, paragraph 108, and in Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconiand Others [2005] ECR I-0000, footnote 83; to the same effect, see the Opinion of Advocate General Poiares Maduro in Case C‑181/03 P Nardone v Commission [2005] ECR I-199, paragraph 51; the Opinion of Advocate General Mischo in Joined Cases C-20/00 and C-64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I-7411, paragraph 126; the Opinion of Advocate General Tizzano in Case C-173/99 BECTU [2001] ECR I‑4881, paragraph 28; and the Opinion of Advocate General Léger in Case C-353/99 P Council v Hautala [2001] ECR I-9565, paragraphs 82 and 83; more hesitantly, see also the Opinion of Advocate General Alber in Case C-63/01 Evans [2003] ECR I-14447, paragraph 80. 29 – Article 1(f) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, corrected at OJ 2004 L 200, p. 1) defines ‘frontier worker’ as ‘any person pursuing an activity as an employed or self-employed person in a Member State and who resides in another Member State to which he returns as a rule daily or at least once a week’; see also Article 1(b) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416). 30 – According to www.viamichelin.de and www.map24.de, each visited most recently on 9 November 2005, this trip takes about 36 minutes by car, of which about 21 minutes (35 kilometres) are spent on major roads. 31 – This may be the point of the reference to the judgment in Kraus (cited below, footnote 33) in the penultimate paragraph of the order making the reference, in which reference is made to Ms Mattern’s professional career ‘in [her] country’, that is to the possibility of her returning to the Luxembourg labour market. 32 – Joined Cases 35/82 and 36/82 Morson and Jhanjan [1982] ECR 3723, paragraphs 16 and 17; Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3762, paragraphs 23 and 24; and Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, paragraphs 16 and 21. 33 – Case C-19/92 Kraus [1993] ECR I-1663, paragraphs 15 and 16; Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 30; and Case C-224/02 Pusa [2004] ECR I-5763, in particular paragraph 17. 34 – See above, paragraphs 22 to 28. 35 – Thus, the Court has already held that it is possible to rely on Community law as regards entry and residence of a national of a third country if the national of the third country is married to a citizen of the Union who is returning to his home country: see Case C-370/90 Singh [1992] ECR I-4265, paragraphs 19 to 23, and Case C-109/01 Akrich [2003] ECR I-9607, paragraph 54. 36 – See above, paragraphs 33 ff. 37 – Singh (cited above, note 35), paragraphs 19 to 23, and Akrich (cited above, note 35), paragraph 54. 38 – This right of residence may be restricted under Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26, hereafter ‘Directive 90/364’). This Directive was repealed and replaced by Directive 2004/38; however, this amendment does not take effect until 30 April 2006 and is therefore irrelevant to the facts of the main proceedings. 39 – See above, paragraphs 23 and 28. 40 – Third and fourth recitals, and the last paragraph of Article 1, of Directive 93/96. 41 – Article 1 of Directive 93/96 provides that a student and the members of his family may be denied residence if the student is not able to assure the authorities that he has sufficient resources to avoid him and his family becoming a burden on the social assistance system of the host Member State during their period of residence. 42 – See above, paragraphs 30 to 39. 43 – To this effect, see also D’Hoop (cited above, footnote 33), in particular paragraphs 8 and 29; Pusa (cited above, footnote 33), in particular paragraphs 12, 17 and 21; and Case C-403/03 Schempp [2005] ECR I-0000, paragraphs 40 ff. To the opposite effect see Case C-112/91 Werner [1993] ECR I-429, paragraphs 16 and 17, although in the context of that case free movement of citizens of the Union and, inter alia, Directives 90/364 and 93/96 were not yet applicable; on this point see also the Opinion of Advocate General Léger in Case C-152/03 Ritter-Coulais [2005] ECR I-0000, paragraphs 51 to 62. 44 – See, to the same effect, Kraus (cited above, footnote 33), paragraphs 18 ff., in relation to an academic degree obtained abroad. 45 – For the details, see above, paragraphs 44 to 48.