Judgment of the Court of 21 June 1988. - Steven Malcolm Brown v The Secretary of State for Scotland. - Reference for a preliminary ruling: Court of Session, Outer House (Scotland) - United Kingdom. - Non-discrimination - Access to university education - Training grants. - Case 197/86.



European Court reports 1988 Page 03205

Swedish special edition Page 00489

Finnish special edition Page 00495



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1 . Free movement of persons - Workers - Equality of treatment - Education in vocational training schools - Concept - University education - Excluded

( EEC Treaty, Art . 128; Regulation No 1612/68 of the Council, Art . 7 ( 3 ) )

2 . EEC Treaty - Scope ratione materiae - Assistance to students for maintenance and training - Inapplicability of the Treaty - Limits - Fees charged for education

( EEC Treaty, Arts 7 and 128 )

3 . Free movement of persons - Workers - Concept - Occupational activity of limited duration undertaken with a view to pursuing university studies in the same field - Inclusion - Social advantages - Grant conditional upon duration of occupational activity - Not permissible

( EEC Treaty, Art . 48; Regulation No 1612/68 of the Council, Art . 7 ( 2 ) )

4 . Free movement of persons - Workers - Equality of treatment - Social advantages - Concept - Assistance granted for maintenance and training with a view to the pursuit of university studies leading to a professional qualification - Inclusion - Limits

( Regulation No 1612/68 of the Council, Art . 7 ( 2 ) )

5 . Free movement of persons - Workers - Entitlement of a worker' s children to access to education provided by the host State - Child born when his parents no longer resided in the host State - Excluded

( Regulation No 1612/68 of the Council, Art . 12 )

Summary

1 . University studies which prepare for a qualification for a particular profession, trade or employment or which provide the necessary training and skills for such a profession, trade or employment constitute vocational training . Universities are not, however, to be regarded as "vocational schools" within the meaning of Article 7 ( 3 ) of Regulation No 1612/68 on freedom of movement for workers within the Community . The term vocational school used in that provision does not include every teaching establishment which provides a measure of vocational training . It refers solely to establishments which provide only instruction sandwiched between periods of employment or else closely connected with employment, particularly during apprenticeship . That is not the case as far as universities are concerned .

2 . Whilst it is true that the conditions for access to vocational training, including university studies in general, fall within the scope of the Treaty for the purposes of Article 7 thereof, assistance given by a Member State to its nationals when they undertake such studies nevertheless falls outside the Treaty, at the present stage of development of Community law, except to the extent to which such assistance is intended to cover registration or other fees, in particular tuition fees, charged for access to education .

3 . The concept of worker within the meaning of Article 48 of the Treaty and of Regulation No 1612/68 has a Community meaning . Any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker . The essential characteristic of the employment relationship is 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 . Community law does not impose any additional conditions for a person to be classifiable as a worker . Accordingly, the Member States cannot unilaterally make the grant of the social advantages contemplated in Article 7 ( 2 ) of the abovementioned regulation conditional upon the completion of a given period of employment .

A national of a Member State who enters into an employment relationship in another Member State for a period of eight months with a view to subsequently undertaking university studies there in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university is therefore to be regarded as a worker within the meaning of Article 7 ( 2 ) of Regulation No 1612/68 .

4 . A grant awarded for maintenance and for training with a view to the pursuit of university studies leading to a professional qualification constitutes a social advantage which may be claimed pursuant to Article 7 ( 2 ) of Regulation No 1612/68 by a national of another Member State who has undertaken, in the host State, after having engaged in an occupation in that State, studies which are linked, by virtue of their subject-matter, with the previous occupation .

It cannot, however, be inferred that a national of a Member State is entitled to a grant for studies by virtue of his status as a worker where it is established that he acquired that status exclusively as a result of his being accepted for admission to university to undertake the studies in question . The employment relationship, which is the only basis for the rights deriving from Regulation No 1612/68, is in such circumstances merely ancillary to the studies to be financed by the grant .

5 . Article 12 of Regulation No 1612/68 must be interpreted as meaning that it grants rights only to a child who has lived with his parents or either one of them in a Member State whilst at least one of his parents resided there as a worker . It cannot therefore create rights for the benefit of a worker' s child who was born after the worker ceased to work and reside in the host State .

Parties

In Case 197/86

REFERENCE to the Court under Article 177 of the EEC Treaty by the Court of Session, Scotland, for a preliminary ruling in the proceedings pending before that court between

Steven Malcolm Brown

and

The Secretary of State for Scotland

on the interpretation of Articles 7 and 128 of the EEC Treaty and Articles 7 and 12 of Regulation ( EEC ) 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 ),

THE COURT

composed of : Lord Mackenzie Stuart, President, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias ( Presidents of Chambers ), T . Koopmans, U . Everling, K . Bahlmann, Y . Galmot, C . Kakouris, R . Joliet, T . F . O' Higgins and F . Schockweiler, Judges,

Advocate General : Sir Gordon Slynn

Registrar : B . Pastor, Administrator

after considering the observations submitted on behalf of

S . M . Brown by R . Mackay QC and M . G . Clarke,

the Federal Republic of Germany, by M . Zuleeg, acting as Agent,

the Kingdom of Denmark, by L . Mikaelsen, acting as Agent,

the United Kingdom, by H . R . L . Purse and D . Donaldson QC, acting as Agents,

the Commission, by J . Currall, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 21 May 1987,

after hearing the Opinion of the Advocate General delivered at the sitting on 17 September 1987,

gives the following

Judgment

Grounds

1 By an order of 27 June 1986, which was received at the Court on 31 July 1986, the Court of Session, Scotland, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty five questions relating in particular to the interpretation of Article 7 of the EEC Treaty and Articles 7 and 12 of Regulation 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 ).

2 The questions were raised in proceedings brought by Mr Brown, the petitioner in the main proceedings ( hereinafter referred to as "the petitioner "), against the refusal of the Scottish Education Department ( SED ), an administrative department under the responsibility of the Secretary of State for Scotland, the respondent in the main proceedings, to award him a student' s allowance .

3 It is apparent from the documents before the Court that the petitioner has dual French and British nationality . He lived in France until taking his baccalauréat and subsequently, at the beginning of 1984, he went to the United Kingdom . From 9 January to 14 September 1984, he worked for a company in Edinburgh . His employment is described in the order for reference as being "pre-university industrial training ". In October 1984, he commenced studies leading to a degree in electrical engineering at Cambridge University .

4 The SED refused, on various grounds based on national law, to award the petitioner a student' s allowance comprising, on the one hand, a maintenance grant, the amount of which is dependent upon the income of the student' s parents and, on the other, direct payment of the tuition fees by the SED, irrespective of the income of the student or of his parents .

5 The petitioner accepts that he has no entitlement under the national regulations . Nevertheless, he brought an action against the SED' s refusal, claiming that he was entitled to the award of an allowance under Community law by virtue of one or other of the following four provisions : Article 7 of the EEC Treaty, as interpreted by the Court in its judgment of 13 February 1985 ( Case 293/83 Gravier (( 1985 )) ECR 593, at p . 606 ), and Article 7 ( 3 ), Article 7 ( 2 ), and Article 12 of Regulation No 1612/68 .

6 Having been asked by the parties to request a preliminary ruling on a number of issues, the national court referred the following questions to the Court of Justice :

"( 1 ) Does a course of full-time study in engineering at a university leading to the award of a degree which enables the holder of the degree to satisfy the educational requirements for associate membership of the professional body for electrical engineers which in turn may enable him, after completion of further practical experience, to be registered as a professional engineer and to use the title 'Chartered Engineer' constitute either or both of :

( a ) vocational training falling within the scope of the EEC Treaty for the purpose of Article 7 thereof as interpreted in Case 152/82 Forcheri v Belgium and Case 293/83 Gravier v City of Liège,

and/or

( b ) training in a vocational school referred to in Article 7 ( 3 ) of Council Regulation ( EEC ) No 1612/68?

( 2 ) Is the concept of access to vocational training for the purpose of Article 7 of the EEC Treaty as interpreted in Case 152/82 Forcheri v Belgium and Case 293/83 Gravier v City of Liège to be interpreted as including payment by a Member State under provisions of its national law to or on behalf of a person undergoing such vocational training of either or both of : ( a ) his tuition fees, and ( b ) his maintenance?

( 3 ) Is a person who is a national of, and has been resident in one Member State and who enters another Member State (' the host State' ) to be regarded as a 'worker' for the purposes of Article 7 of Regulation No 1612/68 where :

( a ) the person concerned is engaged in full-time paid employment covered by the social security system as a trainee electrical engineer for a period of eight months before going to University,

( b ) prior to entering the host State the person concerned had already arranged that at the end of the period of eight months he would take up full-time studies in engineering at a university in the host State,

( c ) he would not have been employed by his employer in the capacity in which he was employed if he had not been accepted for admission to the university,

and

( d ) he took up that employment in order to obtain experience of working in the electrical engineering industry?

( 4 ) Where a worker ceases employment in order to take up, and does take up, a degree course in electrical engineering with the intention of becoming and practising as an engineer, is he entitled under Article 7 ( 2 ) of Regulation No 1612/68 to an allowance payable, under national law, to students in respect of either or both of : ( a ) his tuition fees, and ( b ) his maintenance?

( 5 ) Where the child of a national of one Member State is resident in the territory of another Member State (' the host State' ) may he claim the benefit of Article 12 of Regulation No 1612/68 where his parent, who now no longer works or resides in the host State, was last resident or employed in the host State before the birth of the child and the residence of the child in the host State is not due to the fact of the parent' s employment in the host State?"

7 Reference is made to the Report for the Hearing for a fuller account of the relevant legal provisions and the background to the main proceedings, and of the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The first question

8 In the first part of the first question, the national court wishes to know whether university studies of the kind described in the order for reference constitute vocational training within the scope of the EEC Treaty .

9

It must first of all be observed that, under Article 177 of the EEC Treaty, it is the responsibility of the Court of Justice to provide the national court with the necessary interpretative criteria to enable it to classify the studies in question .

10 It should then be noted that, as the Court ruled in Gravier, cited above, education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training . It must also be made clear, as was ruled by the Court in its judgment of 2 February 1988 ( in Case 24/86 Blaizot v University of Liège (( 1988 )) ECR 379 ), that in general university education fulfils those conditions, with the exception of certain special courses of study which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation .

11 In the second part of the first question, the national court wishes to know whether universities which provide vocational training may be regarded as vocational schools within the meaning of Article 7 ( 3 ) of Regulation No 1612/68 .

12 It should be observed that the fact that a teaching establishment provides a measure of vocational training is not sufficient to enable it to be regarded as a vocational school within the meaning of that provision . The term vocational school has a narrower meaning and refers solely to establishments which provide only instruction interposed between periods of employment or else closely connected with employment, particularly during apprenticeship . That is not the case as far as universities are concerned .

13 It must therefore be stated in reply to the first question that university studies which prepare for a qualification for a particular profession, trade or employment or which provide the necessary training and skills for such a profession, trade or employment constitute vocational training, but that universities are not to be regarded as "vocational schools" within the meaning of Article 7 ( 3 ) of Regulation No 1612/68 .

The second question

14 In the second question, the national court wishes to know whether the payment by a Member State to or on behalf of students of tuition fees charged by a university and grants for students' maintenance falls within the scope of the EEC Treaty for the purposes of Article 7 .

15 It should be pointed out first of all that in Gravier the Court ruled, on the one hand, that unequal treatment based on nationality must be regarded as discrimination prohibited by Article 7 of the EEC Treaty if it falls within the scope of that Treaty and, on the other, that conditions for access to vocational training fall within the scope of that Treaty . In Blaizot the Court further ruled that, in general, university studies fulfil the conditions required in order to be regarded as forming part of vocational training for the purposes of the EEC Treaty .

16 On the other hand, the Court did not have occasion to express a view in the aforementioned judgments as to whether a national of another Member State is entitled, when undertaking such studies, to assistance given by a Member State to its own nationals .

17 It is only to the extent to which assistance of that kind is intended to cover registration or other fees, in particular tuition fees, charged for access to education, that, by virtue of the judgment in Gravier, it falls, as relating to conditions of access to vocational training, within the scope of the EEC Treaty and that, consequently, the principle of non-discrimination on the ground of nationality laid down by Article 7 of the EEC Treaty is applicable .

18 Subject to that reservation, it must be stated that, at the present stage of development of Community law, assistance given to students for maintenance and for training falls in principle outside the scope of the EEC Treaty for the purposes of Article 7 thereof . It is, on the one hand, a matter of educational policy, which is not as such included in the spheres entrusted to the Community institutions ( see Gravier ) and, on the other, a matter of social policy, which falls within the competence of the Member States in so far as it is not covered by specific provisions of the EEC Treaty ( see judgment of 9 July 1987 in Joined Cases 281/85, 283 to 285/85 and 287/85 Federal Republic of Germany v Commission (( 1987 )) ECR 3203 - Migration policy ).

19 It must therefore be stated in reply to the second question that the payment by a Member State to or on behalf of students of tuition fees charged by a university falls within the scope of the EEC Treaty for the purposes of Article 7 thereof, but the payment of grants for students' maintenance does not .

The third question

20 In its third question, the national court essentially wishes to know whether a national of another Member State who enters into an employment relationship in the host State for a period of eight months with a view to subsequently undertaking university studies in that country in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university must be regarded as a worker for the purposes of Article 7 ( 2 ) of Regulation No 1612/68 .

21 It must be emphasized in the first place that the concept of worker within the meaning of Article 48 of the EEC Treaty and Regulation No 1612/68 has a specific Community meaning . As the Court has already held, any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker ( judgments of 23 March 1982 in Case 53/81 Levin v Staatssecretaris van Justitie (( 1982 )) ECR 1035 and of 3 June 1986 in Case 139/85 Kempf v Staatssecretaris van Justitie (( 1986 )) ECR 1741, at p . 1746 ). The essential characteristic of the employment relationship is 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 ( judgment of 3 July 1986 in Case 66/85 Lawrie-Blum v Land Baden-Wuerttemburg (( 1986 )) ECR 2121 ).

22 Community law does not impose any additional conditions for a person to be classifiable as a worker and the Member States cannot unilaterally make the grant of the social advantages contemplated in Article 7 ( 2 ) of Regulation No 1612/68 conditional upon the completion of a given period of occupational activity ( see judgment of 6 June 1985 in Case 157/84 Frascogna v Caisse des dépôts et consignations (( 1985 )) ECR 1739, at p . 1744 ).

23 Accordingly, it must be stated in reply to the third question that a national of another Member State who enters into an employment relationship in the host State for a period of eight months with a view to subsequently undertaking university studies there in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university is to be regarded as a worker within the meaning of Article 7 ( 2 ) of Regulation No 1612/68 .

The fourth question

24 The first part of the fourth question, which relates to tuition fees, has become devoid of purpose in view of the reply given to the second question . The second part of the fourth question seeks to determine whether a worker in the particular circumstances described by the national court is entitled, by virtue of Article 7 ( 2 ) of Regulation No 1612/68, to an allowance payable to students in respect of their maintenance when he takes up a university course in the host State .

25 It must be observed, as the Court has ruled in its judgment of today' s date in Lair v Universitaet Hannover ( Case 39/86 ECR 0000 ), that a grant awarded for maintenance and for training with a view to the pursuit of university studies leading to a professional qualification constitutes a social advantage within the meaning of Article 7 ( 2 ) of Regulation No 1612/68 .

26 In the same judgment, the Court has ruled that a national of another Member State who has undertaken university studies in the host State leading to a professional qualification, after having engaged in occupational activity in that State, must be regarded as having retained his status as a worker and is entitled as such to the benefit of Article 7 ( 2 ) of Regulation No 1612/68, provided that there is a link between the previous occupational activity and the studies in question .

27 Nevertheless, it cannot be inferred from that finding that a national of a Member State will be entitled to a grant for studies in another Member State by virtue of his status as a worker where it is established that he acquired that status exclusively as a result of his being accepted for admission to university to undertake the studies in question . In such circumstances, the employment relationship, which is the only basis for the rights deriving from Regulation No 1612/68, is merely ancillary to the studies to be financed by the grant .

28 The answer to the fourth question must therefore be that a worker who is a national of another Member State and who entered into an employment relationship for a period of eight months with a view to subsequently undertaking studies in the host State in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university is not entitled, under Article 7 ( 2 ) of Regulation No 1612/68, to receive for the purpose of his studies an allowance payable to students who are nationals of the host State in respect of their maintenance .

The fifth question

29 It is relevant to the answer to be given to the fifth question that the petitioner was born after his parents had ceased to work and reside in the United Kingdom . As a result, he never had, in the United Kingdom, the status of a member of a worker' s family .

30 The fifth recital in the preamble to Regulation No 1612/68 indicates that that regulation is intended to establish freedom of movement for workers by, inter alia, eliminating obstacles to the mobility of workers, in particular as regards the worker' s right to be joined by his family and the conditions for the integration of his family into the host country . It follows that Article 12 of the regulation must be interpreted as meaning that it grants rights only to a child who has lived with his parents or either one of them in a Member State whilst at least one of his parents resided there as a worker . It cannot therefore create rights for the benefit of a worker' s child who was born after the worker ceased to work and reside in the host State .

31 It must therefore be stated in reply to the fifth question that a child of a national of one Member State who resides in the territory of another Member State may not claim the benefit of Article 12 of Regulation No 1612/68 where his parent, who no longer resides in the host State, last resided there as a worker before the birth of the child .

Decision on costs

Costs

32 The costs incurred by the United Kingdom, the Federal Republic of Germany, the Kingdom of Denmark and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

Operative part

On those grounds,

THE COURT,

in reply to the questions submitted to it by the Court of Session, Scotland, by order of 27 June 1986, hereby rules :

( 1 ) University studies which prepare for a qualification for a particular profession, trade or employment or which provide the necessary training and skills for such a profession, trade or employment constitute vocational training .

Universities are not to be regarded as "vocational schools" within the meaning of Article 7 ( 3 ) of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community .

( 2 ) The payment by a Member State to or on behalf of students of tuition fees charged by a university falls within the scope of the EEC Treaty for the purposes of Article 7 thereof, but the payment of grants for students' maintenance does not .

( 3 ) A national of another Member State who enters into an employment relationship in the host State for a period of eight months with a view to subsequently undertaking university studies there in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university is to be regarded as a worker within the meaning of Article 7 ( 2 ) of Regulation No 1612/68 .

( 4 ) A worker who is a national of another Member State and who entered into an employment relationship for a period of eight months with a view to subsequently undertaking studies in the host State in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university is not entitled, under Article 7 ( 2 ) of Regulation No 1612/68, to receive for the purposes of his studies an allowance payable to students who are nationals of the host State in respect of their maintenance .

( 5 ) A child of a national of one Member State who resides in the territory of another Member State may not claim the benefit of Article 12 of Regulation No 1612/68 where his parent, who no longer resides in the host State, last resided there as a worker before the birth of the child .