Keywords

Summary



Keywords

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1. Freedom of movement of persons - Worker - Concept - Existence of an employment relationship - Performance of effective and genuine activities - Assessment criteria - Worker under an on-call contract

(EEC Treaty, Art. 48)

2. Freedom of movement of persons - Worker - Concept - Person undertaking studies after pursuing an occupational activity - Retention of the status of worker - Conditions

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

3. Community law - Principles - Equality of treatment - Discrimination on grounds of nationality - Prohibition - Scope - Assistance granted to students for access to vocational training - Restriction - Assistance intended to cover students' maintenance costs

(EEC Treaty, Art. 7)

4. Community law - Principles - Equality of treatment - Discrimination on grounds of nationality - Prohibition - Access to vocational training - Consequences - Right of entry and of residence of a national of another Member State admitted to a course of vocational training - Permissible restrictions - Right of entry and of residence and entitlement to assistance granted for access to education made conditional on the grant of a residence permit - Not permissible

(EEC Treaty, Arts 7 and 128)

Summary

1. The concept of worker has a Community meaning and must not be interpreted in a restrictive manner. The essential feature of an employment relationship is that for a certain period a person performs services for and under the direction of another person in return for which he receives remuneration, the nature of the legal relationship between the worker and the employer not being, in itself, decisive. The conditions of employment of a person employed under a contract which provides no guarantee as to the number of hours to be worked, with the result that the person concerned works only a very limited number of days per week or hours per day, obliges the employer to pay the employed person and to grant that person social advantages only in so far as he has actually worked, and does not oblige the employed person to heed the employer' s call for him to work, do not prevent the employed person in question from being regarded as a worker within the meaning of Article 48 of the Treaty, in so far as the activities pursued are effective and genuine activities to the exclusion of activities on such a small scale as to be regarded as marginal and ancillary. National courts may, when assessing the effective and genuine nature of the activity pursued by the worker, take account of the irregular nature and limited duration of the services actually performed under an on-call contract.

2. In assessing whether a person is a worker account should be taken of all the occupational activities which the person concerned has pursued within the territory of the host Member State but not the activities which he has pursued elsewhere in the Community. Retention of the status of worker, eligible as such to benefit from the advantages guaranteed by Article 7(2) of Regulation No 1612/68, by those leaving their employment to pursue full-time studies is conditional on there being a link between the occupational activities previously pursued in the host Member State and the studies undertaken, unless the person in question is a migrant worker who has involuntarily become unemployed and is obliged by conditions on the labour market to undergo vocational retraining in another field of activity.

3. The first paragraph of Article 7 of the Treaty, which lays down the principle of non-discrimination on grounds of nationality, applies to financial assistance granted by a Member State to its own nationals in order to allow them to follow a course of vocational training only in so far as such assistance is intended to cover the costs of access to the course. Students from another Member State therefore have the right to the same treatment as is accorded to students who are nationals of the host Member State as regards any assistance intended to cover enrolment fees or other costs, in particular tuition fees, relating to access to education, but they cannot rely on the aforementioned provision to claim assistance for maintenance costs.

4. The principle of non-discrimination as regards conditions of access to vocational training deriving from Articles 7 and 128 of the Treaty implies that a national from a Member State who has been admitted to a vocational training course in another Member State enjoys, on that basis, a right of residence for the duration of the course. That right may be exercised regardless of whether the host Member State has issued a residence permit. The right of residence of a student who is a national of a Member State is confined, however, to what is necessary to allow the person concerned to pursue vocational training and can, therefore, be limited in time to the duration of the studies pursued, granted only for the purpose of such studies or made subject to conditions deriving from the legitimate interests of the Member State, such as the covering of maintenance costs and health insurance, to which the principle of non-discriminatory access to vocational training does not apply.

It would constitute discrimination prohibited by Article 7 of the Treaty for a Member State to require a student who is a national of another Member State and enjoys, under Community law, a right to reside in the host Member State to possess a residence permit in order to qualify for funding of the cost of access to education.