OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 December 2005 1( )

Case C-10/05

Cynthia Mattern and Hajrudin Cikotic

(Reference for a preliminary ruling from the Cour administrative, Luxembourg)

(Free movement of workers – Derived rights of family members – Article 11 of Regulation (EEC) No 1612/68 – Requirement for a work permit for a national of a third country who is the spouse of a citizen of the Union – Access to the labour market in the home State of the citizen of the Union – Frontier workers)

I – Introduction

1. The present case provides an opportunity to clarify the legal position of nationals of third countries who are members of the families of citizens of the Union as regards their access to the labour market within the Community.

2. The case concerns a national of a third country who is married to a Luxembourg national and who lives with her in Belgium near the Luxembourg border. While his wife was attending a vocational training course and professional training in Belgium, he wanted to pursue employed activity in Luxembourg, but the authorities there refused him a work permit.

3. Against this background the Luxembourg Cour administrative ( ) (hereinafter also ‘the national court’) asks the Court as to the interpretation of Community law, and asks in substance whether the provisions relating to free movement of workers exempt the national of a third country from the requirement to obtain a work permit.

II – Legal framework

A – Community law

4. The Community law framework for the present case is Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (hereinafter ‘Regulation No 1612/68’), ( ) which provides:

‘Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State.’

5. The preamble to Regulation No 1612/68 includes the following:

‘Whereas freedom of movement constitutes a fundamental right of workers and their families; whereas mobility of labour within the Community must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economies of the Member States; whereas the right of all workers in the Member States to pursue the activity of their choice within the Community should be affirmed’ (third recital);

‘Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family and the conditions for the integration of that family into the host country’ (fifth recital).

6. This is supplemented by Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students (hereinafter ‘the Student Directive’). ( ) The second subparagraph of Article 2(2) of the Student Directive provides:

‘The spouse and the dependent children of a national of a Member State entitled to the right of residence within the territory of a Member State shall be entitled to take up any employed or self-employed activity anywhere within the territory of that Member State, even if they are not nationals of a Member State.’

B – National law

7. The national court does not specify which provisions of Luxembourg law are applicable in the main dispute. However, the request for a preliminary ruling indicates that in Luxembourg persons such as Mr Cikotic who are not nationals of a Member State of the European Economic Area require a work permit, and that this may be refused inter alia for reasons of labour market policy. ( )

III – Facts and main proceedings

8. Ms Cynthia Mattern is a Luxembourg national. She is married to Mr Hajrudin Cikotic, whom the national court describes as a ‘Yugoslav national’.

9. In spring 2003 the couple lived together in the municipality of Athus (Aubagne) in Belgium. There Ms Mattern attended a vocational training course ( ) as a family and health care assistant ( ) and professional training. It appears from the file that on 30 June 2003 Ms Mattern received a degree certificate ( ) from her Belgian vocational college. From 15 July 2003 onwards she was in possession of a contract for employment on a permanent basis with a company in Pétange in the Grand Duchy of Luxembourg, although exactly when this contract was entered into is not clear.

10. Also in spring 2003 Mr Cikotic, while in Belgium, sought employment in Luxembourg. On 18 March 2003 ( ) a company in Ernster in the Grand Duchy of Luxembourg issued a declaration of employment in respect of Mr Cikotic and at the same time applied for a work permit for him. ( )

11. By decision dated 14 July 2003 the Luxembourg Minister for Work and Employment ( ) refused to grant Mr Cikotic a work permit, because a sufficient number of unqualified persons seeking work were registered with the Luxembourg employment authorities and citizens of Contracting States of the European Economic Area were to be given priority of access to available jobs. In addition the employer had not registered the job in question as being available and since 17 March 2003 had been filling it (with Mr Cikotic) unlawfully.

12. Ms Mattern and Mr Cikotic appealed against the refusal to the administrative courts, and claimed in particular that there had been an infringement of Community law. At the moment the proceedings are pending on appeal before the Luxembourg Cour administrative.

13. So far as is known, Ms Mattern and Mr Cikotic continue to live together in Athus in Belgium, although Ms Mattern is now a private sector employee in Luxembourg. ( )

IV – Request for a preliminary ruling and proceedings before the Court

14. On 11 February 2005 the Luxembourg Cour administrative stayed the proceedings and referred the following question to the Court for a preliminary ruling:

‘Do the Community rules concerning freedom of movement for workers apply to the situation of a national of a third country married to a Community national who has attended a vocational training course and professional training in a Member State other than her own, and may therefore the non-Community spouse be exempt from the requirement to obtain a work permit on the basis of rules guaranteeing to Community nationals and members of their families who are third country nationals the right to freedom of movement as workers?’

15. Before the Court the German and United Kingdom Governments and the Commission made written submissions.

V – Analysis

16. By its request for a preliminary ruling the national court asks essentially whether a national of a third country may be prevented from taking up and pursuing an activity as an employed person in a Member State where:

– the third country national is married to a national of the Member State in question;

– in a different Member State his wife has attended a vocational training course and professional training;

– both spouses live together in that other Member State.

17. Apart from any specific rights under, for example, Association Agreements, ( ) as the law stands a national of a third country has no direct right under Community law to access to the labour market in any Member State. ( )

18. However, he may have a derived right to take up and pursue an activity as an employed person in a Member State if his wife or child works there as a migrant worker (Article 11 of Regulation No 1612/68). The same applies for the spouse or child of a citizen of the Union who is living in that Member State as a student in exercise of his right to free movement (second paragraph of Article 2(2) of Directive 93/96). ( )

19. In discussing these provisions I shall not consider in any further detail entry and residence rights, or the issue of abuse of Community law. The information available gives no indication that Mr Cikotic is resident in the Community illegally, or that the marriage is a sham, or that Mr Cikotic and Ms Mattern’s choice of Belgium as their residence is a sham.

A – Derived right to take up and pursue an employed activity under Article 11 of Regulation No 1612/68

20. The first possibility is that Mr Cikotic has a derived right of access to the labour market under Article 11 of Regulation No 1612/68, to which the national court expressly refers in its reference for a preliminary ruling. Mr Cikotic can rely on this provision if he falls within its personal and territorial scope of application.

1. Personal scope of application: spouse of an employed person

21. Mr Cikotic is within the personal scope of application of Article 11 of Regulation No 1612/68 if his wife Ms Mattern, a Luxembourg national who attended professional training in Belgium, may be regarded as an employed person (worker) for the purposes of that provision.

22. According to the Court’s case-law, the concept of worker, within the meaning of Article 39 EC and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly. ( )

23. The essential feature of an 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. ( )

24. Neither the sui generis nature of the employment relationship under national law, nor the level of productivity of the person concerned, the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether or not the person is a worker for the purposes of Community law. ( ) Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker. ( )

25. Consequently, a person engaged in preparatory training in the course of occupational training must be regarded as a worker if the training period is completed under conditions of genuine and effective activity as an employed person. ( )

26. On the information available it is not possible to determine conclusively whether Ms Mattern fulfils all of these criteria. In any event, in preliminary reference proceedings under Article 234 EC the Court has no jurisdiction to give a ruling on the facts in the main proceedings or to apply the rules of Community law which it has interpreted to national measures or situations. ( ) Instead, it is for the national court to make the necessary findings on this point.

27. Since a training period completed in the context of occupational training is intended above all to develop occupational aptitude, the national court is entitled, when assessing the genuine and effective nature of the services in question, to examine whether the person concerned has completed a sufficient number of hours in order to familiarise himself with the work. ( )

28. In addition, the national court will have to determine whether Ms Mattern received any remuneration for her professional training, even if only of a limited amount. Only if she did can she be regarded as an employed person (worker).

29. Ultimately, whether Mr Cikotic comes within the personal scope of application of Article 11 of Regulation No 1612/68 depends on the findings the national court makes.

2. Territorial scope of application: place of the activity

30. Mr Cikotic is within the territorial scope of application of Article 11 of Regulation No 1612/68 if his wife, Ms Mattern, is pursuing an activity as an employed person ( ) ‘im Hoheitsgebiet eines Mitgliedstaats’ ( ) (in the territory of a Member State) and he wants to take up any activity as an employed person within the territory ‘of that same State’.

31. The main features of the present case are that the married couple, Mr Cikotic and Ms Mattern, live together in Belgium, that at the material time (spring 2003) ( ) Ms Mattern was attending a vocational training course and professional training there, and that at the same time Mr Cikotic was seeking access to the labour market not in that Member State but in another Member State, namely Luxembourg.

32. Article 11 of Regulation No 1612/68 does not apply in such circumstances, because its wording requires the place of the income-earning activity of the employed person who comes from within the Community and of that of his spouse who is a national of a third country to be in the same Member State (within the territory of ‘that same State’). The Governments who participated in the proceedings and the Commission made this point too.

33. The right conferred by Article 11 of Regulation No 1612/68 on family members of migrant workers to pursue employed activity is not a direct right to free movement. As with the other provisions in Articles 10 to 12 of Regulation No 1612/68, it benefits the migrant worker whose family includes a national of a third country as a spouse or dependent child. These provisions form part of a legislative scheme intended to eliminate all obstacles to the mobility of migrant workers, in particular as regards their right to be joined by their families and the conditions for the integration of those families into their host country. ( )

34. Thus, the aim of Article 11 of Regulation No 1612/68 is simply to realise the right of migrant workers to freedom of movement pursuant to Article 39 EC, and in doing so to protect their and their families’ right to a family life, as expressed in Article 8 of the European Convention on Human Rights ( ) and now also in Article 7 of the Charter of fundamental rights of the European Union. ( ) It is against this background that the description of free movement as a ‘fundamental right of workers and their families’ in the third recital to Regulation No 1612/68 must also be understood. The improvement of living conditions and the promotion of social advancement to which this recital also refers may frequently be best achieved if not only the migrant worker but also the co-habiting spouse contributes to the maintenance of the family with his or her income.

35. The consequence of this aim of integration is that members of migrant workers’ families do not have a right to pursue employed activity anywhere in the Community, but only in the Member State in which the migrant worker is working.

36. Clearly, the ideal situation of the migrant worker and his family members finding accommodation, work and education in the same place is not always attainable. In order best to ensure their integration into the host State notwithstanding that, it may be necessary for the members of the migrant worker’s family to seek suitable work in areas close to the family home.

37. This necessity is recognised in the wording of Article 11 of Regulation No 1612/68: the migrant worker’s spouse and children have the right to pursue any activity as an employed person ‘throughout the territory’ of the host State, that is including places other than where the family home is and where the migrant worker works.

38. Admittedly, in border regions it may frequently be easier to find suitable work in a neighbouring Member State than ‘throughout the territory’ of the host State. For example, when in Salzburg it may be more complicated to go to Vienna than to go to neighbouring Upper Bavaria (in Germany), and the distance from Thionville (in France) to Luxembourg is significantly less than the distance to Paris or Marseille. It is indeed in the area around the borders between Belgium, Luxembourg, France and Germany that frontier workers ( ) have become a widespread phenomenon. Athus in Belgium, where Mr Cikotic and Ms Mattern live together, is in the immediate vicinity of the Luxembourg border. From there it is only approximately 47 kilometres to the seat of Mr Cikotic’s potential employer in Ernster, Luxembourg. ( ) Accordingly, it would certainly promote the integration of Ms Mattern’s and Mr Cikotic’s joint family life in Belgium if Mr Cikotic were able to work in the Grand Duchy of Luxembourg instead of having to commute to a more distant Belgian city such as Brussels or Namur.

39. However, as Community law presently stands Article 11 of Regulation No 1612/68 does not confer on nationals of third countries a right to such opportunities to pursue employed activity across intra-Community borders. The Community legislature did not confine the persons concerned to pursuing employed activity strictly in the place where the migrant worker worked, but extended the right to the whole of the territory of the host Member State – for the purpose of promoting integration and increasing the probability that appropriate employment is found. However, it is apparent that at least so far it has not decided to extend the right of family members to pursue an employed activity beyond the borders of the host Member State, not even only to border regions near to the family home of the migrant worker.

40. Accordingly, as Community law stands at present:

Article 11 of Regulation No 1612/68 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.

3. Subsequent changes in the facts of the present case following the refusal of the work permit

41. In case national procedural law permits the national court to take into account changes in the circumstances of the present case after the Luxembourg Minister for Work and Employment issued the refusal decision, ( ) in other words after 14 July 2003, the following supplementary points should be made.

42. It appears from the file that from 15 July 2003 onwards Ms Mattern was in possession of a contract for employment on a permanent basis with an undertaking in Pétange in the Grand Duchy of Luxembourg and has been employed in Luxembourg in the private sector since then.

43. Thus, considering the facts as of today Mr Cikotic seeks access to the labour market in the same Member State as that in which his wife pursues an employed activity, and accordingly on the wording of Article 11 of Regulation No 1612/68 falls within its territorial scope of application (taking up any activity as an employed person throughout the territory of ‘that same State’).

44. The fact that that Member State is Ms Mattern’s home Member State does not gainsay this.

45. Of course, Community law generally does not apply to purely domestic cases. ( ) However, if the individual case has a link to Community law, in particular because a person has exercised his right to freedom of movement, Community law is applicable also against the Member State of which that person is a national. ( ) The underlying reason for this is that nationals of a Member State would be discouraged from exercising their right to freedom of movement if doing so would preclude them from relying on Community law against their home Member State in the same way as nationals of other Member States.

46. Accordingly, if the national court holds that Ms Mattern satisfies the definition of a migrant worker, ( ) she is a person who has exercised her right under Article 39 EC to free movement and thus falls within the scope of application of Community law.

47. This reasoning applies also in relation to the derived rights of members of migrant workers’ families as set out in Articles 10 to 12 of Regulation No 1612/68. ( ) This is because, as already stated, ( ) these derived rights ultimately promote the mobility of migrant workers and protect their family life.

48. Accordingly, in order best to guarantee the mobility of a migrant worker – including his right to return to the labour market in his home Member State – and in particular to enable him to maintain his family life, it is necessary to confer on the migrant worker’s spouse and children not only rights of entry and residence ( ) but also a right to work in the same Member State in which the migrant worker works. Therefore, where the migrant worker returns to the labour market of his home Member State the members of his family must have a right to work there too, under Article 11 of Regulation No 1612/68.

49. That Ms Mattern and Mr Cikotic are entitled to carry on living in the home they share in Belgium despite any employed or self-employed activity they pursue in Luxembourg follows, so far as Ms Mattern is concerned, from her right as a citizen of the Union to free movement under Article 18 EC, ( ) and, so far as Mr Cikotic is concerned, by virtue of a derived right of residence under Article 1(1) in conjunction with Article 1(2)(a) of Directive 90/364.

50. In 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. ( )

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. ( )

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 ( ) 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. ( )

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. ( )

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. ( ) 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. ( )

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.