Opinion of the Advocate General — ECLI:EU:C:2003:117
Date: 2003-02-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — CASE C-413/01 
S u m m a r y of the J u d g m e n t 
1. Freedom of movement for persons — Workers — Definition — National of a 
Member State employed for a temporary period of two and a half months in the 
territory of another Member State — Assessment by the national court 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC)) 
2. Freedom of movement for persons — Workers — Definition — Person commencing 
studies after engaging in occupational activity — Retention of the status of worker — 
Conditions 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC); Council Regulation 
No 1612/68, Art. 7(2)) 
1. The fact that a national of a Member 
State has worked for a temporary 
period of two and a half months in 
the territory of another Member State, 
of which he is not a national, can 
confer on him the status of a worker 
within the meaning of Article 48 of the 
T r e a t y (now, after a m e n d m e n t , 
Article 39 EC) provided that the activ­
ity performed as an employed person is 
not purely marginal and ancillary. 
It is for the national court to carry out 
the examinations of fact necessary in 
order to determine whether that is so in 
the case before it. Circumstances 
preceding and subsequent to the period 
of employment, such as the fact that 
the person concerned: 
— took up the job only some years 
after his entry into the host Member 
State, 
— shortly after the end of his short, 
fixed-term employment relationship, 
became eligible for entry to univer­
sity in the host Member State by 
virtue of having completed his 
schooling in his country of origin, or 
— attempted to find a new job in the 
period between the end of the short, 
fixed-term employment relationship 
and the time when he took up his 
studies, are not relevant in this 
connection. 
(see para. 32, operative part 1) 
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NINNI-ORASCHE 
2. Migrant workers are guaranteed cer­
tain rights linked to the status as a 
worker even when they are no longer in 
an employment relationship. 
In the field of assistance for university 
education, a national of a Member 
State other than the host Member State 
who has engaged in occupational activ­
ity in that host State and then under­
taken there university studies leading to 
a professional qualification must be 
regarded as having retained his status 
as a worker entitled as such to benefit 
from Art icle 7(2) of Regu la t ion 
No 1612/68 on freedom of movement 
for workers within the Community, as 
amended by Regulation No 2434/92, 
provided tha t there is cont inui ty 
between the previous occupational 
activity and the studies pursued. How­
ever, this condition cannot be imposed 
on a migrant worker who has involun­
tarily become unemployed and is 
obliged by conditions on the labour 
market to under take occupational 
retraining. 
In that regard a Community national, 
where he has the status of a migrant 
worker for the purposes of Article 48 
of the Treaty (now, after amendment, 
Article 39 EC) is not necessarily volun­
tarily unemployed, solely because his 
contract of employment, from the 
outset concluded for a fixed term, has 
expired. 
That cannot give rise to a situation 
whereby a national of a Member State 
may enter another Member State for 
the sole purpose of enjoying, after a 
very short period of occupational activ­
ity, the benefit of the student assistance 
system in that State. Such an abuse is 
not covered by the Community provi­
sions in question. 
(see paras 34-36, 48, operative part 2) 
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