(d)

Similar and perhaps even clearer conclusions may be drawn in that regard from the relevant secondary legislation adopted under Article 49 of the EEC Treaty for the implementation of the principle of freedom of movement. With regard to the right of residence of workers from other Member States it is significant that in the second recital in the preamble to Council Directive No 68/360 of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (Official Journal, English Special Edition, 1968 (II), p. 485) it is stated that ‘the rules applicable to residence should, as far as possible, bring the position of workers from other Member States and members of their families into line with that of nationals’. In fact the directive contains provisions which show that foreign workers are subject not only to special procedures but also to special conditions, and that there is therefore no question of their being treated in the same way as nationals of the host State in all respects. Reference may be made to Article 4, under which a residence permit is to be issued inter alia solely on production of a confirmation of engagement from the employer, or to Article 7 (2), under which on the renewal of the residence permit for the first time the period of residence may be restricted where the worker has been involuntarily unemployed in the State of residence for more than 12 consecutive months. The Court of Justice has also made it clear that no exception can be taken to such differences in treatment in the form of special requirements for the nationals of other Member States (see judgment in Case 118/75). ( 9 ) Mention should also be made in this connection of Regulation No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (Official Journal, English Special Edition, 1970 (II), p. 402). Article 2 in particular makes it clear that that right is certainly not merely a derivative of the principle of equal treatment. Reguktion No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition, 1968 (II), p.475) is of particular relevance; as the Netherlands Government has correctly pointed out, its preamble makes it clear that a distinction must be drawn between the prohibition of discrimination, which applies in various respects (in particular ‘as regards employment, remuneration and other conditions of work and employment’, referred to in the first recital, and with regard to ‘the actual pursuit of activities as employed persons and to eligibility for housing’, mentioned in the fifth recital), and other rights (in particular the right to move freely within the Community for the purpose of employment and the worker's right to be joined by his family). Accordingly, Part I of the Regulation is entitled ‘Employment and workers' families’ (Parts II and III, which contain provisions implementing subparagraphs (a) and (d) of Article 49 may be ignored for present purposes). Title I (‘Eligibility for employment’) is clearly based, as Articles 1 to 3 show, on the principle of equal treatment. The same is true of Title II (the title ‘Employment and equality of treatment' leaves no doubt), as can be seen from all three provisions of that title (Article 8 subject to reservations). Title III (Workers' families’) ( 10 ) on the other hand, is characterized by the fact that Article 10 (1) lists only specific persons who are entitled to install themselves with a worker and Article 10 (2) requires Member States merely to facilitate the admission of family members other than those referred to in Paragraph (1) who are dependent on the worker or live under his roof in the country of origin. Had that been intended to be a minimum standard, leaving open other possibilities under the principle of equal treatment, that could easily have been made clear. In reality, however, Title III contains no general principle of equal treatment but only requires equal treatment in specific areas, such as housing (Article 10 (3] and the education of workers' children (Article 12). It should also be pointed out that Articles 48 to 51 of the EEC Treaty, on freedom of movement for workers, make no mention of any right of workers' families to follow them. Regulation No 1612/68 of the Council thus goes beyond the minimum content of the Treaty in this respect. That certainly supports the conclusion drawn by the Netherlands Government that the question of the right of members of the families of migrant workers and other persons connected with them to accompany them is governed exclusively by Article 10 of Regulation No 1612/68. It is possible that the resulting restriction of a worker's right to take his companion with him to another Member State may impair his freedom of movement. The same might also be said, however, of other examples cited by the Netherlands Government: the restriction of voting rights and the absence of any right to the education of the children of migrant workers in their native language. Nor does the Court's case-law justify a different conclusion, even if it is true, as the Commission has emphasized, that it is very broadly phrased in the interest of giving full effect to the principle of freedom of movement. If I understand correctly, that is true in particular with regard to the phrase ‘social advantages’ used in Article 7 of Regulation No 1612/68, which has been defined very broadly. Reference may be made to the judgments in Cases 152/73 ( 2 ) (separation allowance paid by the German Federal Post Office), 32/75 ( 11 ) (reductions for travel by rail), 261/83 ( 12 ) (guaranteed minimum income for relatives in the ascending line), 122/84 ( 13 ) (social assistance) and 137/84 ( 14 ) (use of languages in the courts). Case 152/82 ( 15 ) is somewhat similar, inasmuch as it concerns supplementary fees for foreign students and it was stated, with regard to the principle of equal treatment, that the right to free movement must not be interpreted narrowly ([1983] ECR 2323 at p. 2335, paragraph 11). However, in view of the structure of Regulation No 1612/68, problems such as that raised in these proceedings cannot be resolved by reference to Article 7. Whereas the judgments mentioned above concerned the delimitation of the rights of workers entitled to be admitted, this case concerns the delimitation of the category of persons entitled to be admitted. In this respect it cannot be assumed that the Member States have restricted their freedom of action further than is to be inferred from Regulation No 1612/68, and it must be pointed out again that in determining the category of persons entitled to accompany a worker the Member States went beyond the minimum duty laid down in the Treaty. It is not surprising, therefore, that no such liberal case-law can be discerned in this area. Appeal to the principle of equal treatment alone, and the fact that in the judgment in Case 267/83 ( 16 ) it was emphasized that the phrase ‘install themselves’ in Article 10 of Regulation No 1612/68 must not be interpreted restrictively (paragraph 17), is hardly sufficient to justify the far-reaching viewpoint of the Commission. Finally, some attention must be given to the following point: If the issue of whether or not the companions of workers are entitled to accompany them were to be determined in accordance with the prohibition of discrimination laid down in Article 7 (2) of Regulation No 1612/68, the result might differ from one Member State to another. The rules laid down in Article 10 regarding the persons entitled to accompany a worker, on the other hand, are uniform in all Member States. It is difficult, therefore, to find support in the scheme of Regulation No 1612/68 for the proposition that such a right of accompaniment should be drawn from Article 7 of the regulation. The granting of such a right to companions would constitute an extension of the category of persons to whom Article 10 of the regulation applies, an extension which lies within the competence of the Council, not of the Court.