CELEX: 61985CC0059
Language: en
Date: 1986-02-19 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 19 February 1986. # State of the Netherlands v Ann Florence Reed. # Reference for a preliminary ruling: Hoge Raad - Netherlands. # Right of residence of the unmarried companion of a worker who is a national of another Member State. # Case 59/85.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 19 February 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      A —
      
               1.
            
            
               The case before us today concerns the question whether the British companion of a British worker employed in the Netherlands can claim to be entitled to reside in the Netherlands under Community law in conjunction with the Netherlands policy on aliens, set out in the 1982 Vreemdelingencirculaire [Circular on Aliens].
               The circular provides that a foreigner who has a stable relationship with a Netherlands national and lives with him in the same household may as regards the right of residence be treated in the same way as a spouse, on condition inter alia that both parties are unmarried and appropriate accommodation and sufficient means of existence are provided for the foreign partner. The same applies to foreigners who have relationships with persons in the Netherlands enjoying a permanent right of residence there (such as refugees and persons who have been granted asylum).
            
         
               2.
            
            
               In November 1981 Mr W., an unmarried British national, came to the Netherlands to take up a temporary post with a subsidiary of a British undertaking. As a national of another EEC Member State (an EEC national) he was issued a residence permit in February 1982 which was valid until 5 November 1986. With him came his companion, the respondent in the main proceedings, also a British national and unmarried, with whom he had a stable relationship of some five years' standing. On 22 January 1982 she reported to the Netherlands authorities responsible for dealing with aliens, giving her residence as that of Mr W., and said that she was looking for work.
            
         
               3.
            
            
               Since she was unable to find work, she applied on 24 March 1982 for a residence permit as Mr W."s companion. Although the stability of the relationship was not questioned, the application was rejected in October 1982 on the basis of Netherlands policy regarding aliens. Miss Reed applied for the review of that decision, and when that application was dismissed in January 1983 she brought the matter before the Raad van State (where it is apparently still pending).
            
         
               4.
            
            
               Since her application for a review of the authorities' decision had no suspensory effect, the respondent also applied to the President of the Rechtbank, The Hague, for an order that any measures for her deportation should remain in abeyance until such time as the issue of her residence permit should be resolved. That application was granted in December 1982 on the basis of Article 10 of Regulation No 1612/68 on freedom of movement for workers within the Community (Official Journal, English Special Edition, 1968 (II), p.475), under which inter alia the spouse of a worker who is a national of one Member State and is employed in the territory of another Member State is entiled to take up residence with him there. The judge held that provision to be applicable on the basis that, in view of modern developments, companions in the sense outlined above should be treated as spouses.
            
         
               5.
            
            
               The Netherlands State appealed against that decision to the Gerechtshof in The Hague. In the summer of 1983, while those proceedings were still pending, it appears that Mr W. and the respondent returned to the United Kingdom without the intention of returning to the Netherlands. In any event, in November 1983 the Gerechtshof delivered a judgment upholding, in the result, the decision of the President of the Rechtbank. The judgment of the Gerechtshof was based on the Netherlands policy regarding aliens, summarized above, and the principle to be drawn from Article 7 and Article 48 (2) of the EEC Treaty to the effect that workers from Member States may not be discriminated against on grounds of nationality. The Gerechtshof held that as a result the companion of a worker from another Member State had the same right of residence as the companion of a Dutch worker.
            
         
               6.
            
            
               The Netherlands State brought a further appeal to the Hoge Raad der Nederlanden. It argued that the Gerechtshof had applied Community law incorrectly: it had not taken into account the fact that not only the partners of Dutch persons but also the partners of other persons with an unrestricted right of residence in the Netherlands have a right to reside there. The distinction thus drawn is not between partners of Dutch persons and partners of workers from other Member States, but between partners of persons who may remain in the Netherlands indefinitely and partners of persons whose right to reside in the Netherlands is restricted in time. The Netherlands policy on aliens could not, therefore, be said to discriminate on the basis of nationality.
               
            
         
               7.
            
            
               The proceedings raised questions of Community law, regardless of whether the correct interpretation of the law was that favoured by the Gerechtshof or, should that prove to be untenable, that adopted by the Rechtbank. By an order of 22 February 1985 it therefore stayed the proceedings and referred the following questions for a preliminary ruling under Article 177 of the EEC Treaty:
               
                        ‘(1)
                     
                     
                        In the light of the provisions of Article 10 of Regulation No 1612/68, does discrimination prohibited by Articles 7 and 48 of the EEC Treaty arise where, as part of its policy on aliens, a Member State treats a person who has a stable relationship with a worker who is a national of that Member State as the spouse of such a worker, but does not grant the. same treatment to a person who has a stable relationship with a worker who is a national of another Member State but is employed and resides in the first-named Member State?
                     
                  
                        (2)
                     
                     
                        Does it make any difference to the answer to Question 1 if the Member State treats as a spouse not only a person who has a stable relationship with a national of that State but also a person who has a stable relationship with another person who enjoys in principle an unrestricted right of residence in that Member State?
                     
                  
                        (3)
                     
                     
                        Must Article 10 (1) (a) of Regulation No 1612/68 be interpreted as meaning that in certain circumstances a person who has a stable relationship with a worker within the meaning of that provision is to be treated as his ‘spouse’?
                     
                  
         B —
      My views on the matter are as follows :
      I — I should like first of all to make the following preliminary remarks.
      
               1.
            
            
               The first concerns the question whether in the main proceedings there is in fact any need for clarification of the problems of Community law raised.
               We know from the opinion delivered by the Procureur Generaal in the Hoge Raad that Mr W. and the respondent have long since left the Netherlands and have no intention of returning there. Apart from the question of costs, the respondent therefore no longer has any legal interest in the proceedings. It may be asked, moreover, whether there is now any need for an interlocutory order of the kind made by the Rechtbank, since the respondent's application for the review of the administrative decision was rejected without any consultation of the Adviescommissie voor vreemdelingenzaken [Advisory Committee for matters regarding aliens] and her application to the Raad van State had suspensory effect, so that under Netherlands law she could not be deported.
               In view of that, the Procureur Generaal considered that even the appeal proceedings had no real significance for the respondent, that the Netherlands State had no legal interest in having the decision against it set aside, and that therefore the proceedings were in fact fictitious.
               Nevertheless, I do not think that we can hold that on those grounds the questions referred are not relevant to the decision of the national court and therefore decline to answer them.
               It is true that in principle — I need not produce authority for this — the Court of Justice proceeds with the greatest of caution in such matters. In this case it must not be forgotten that in his opinion the Procureur Generaal acknowledged that the State had an interest in the proceedings at least from the point of view of costs, on which no decision has yet been made, and that for it the matter had become a test case, in which important questions of Community law could be resolved which were also relevant in other cases. It should also be borne in mind that the reference for a preliminary ruling was made after the delivery of that opinion. It seems therefore that the Hoge Raad does not share the view of the Procureur Generaal that the proceedings are fictitious but considers — and that is a matter for it alone to judge — that a decision on its part is still necessary. Under the second paragraph of Article 177 of the EEC Treaty we are bound by its view.
               In those circumstances it does not seem justifiable to speak of a clear lack of relevance or to suggest that the reference has been improperly made since the proceedings are contrived. There is therefore no real difficulty in holding the reference admissible.
            
         
               2.
            
            
               It is also possible to argue that the examination of the questions posed might be made unnecessary by clarification of a point of Community law not raised in those questions.
               The Court will recall that, as I mentioned in my summary of the facts of the case, under the 1982 Vreemdelingencirculaire not only Dutch people are entitled to take foreign companions and so help them to obtain a residence permit but also persons in possession of a permanent residence permit. The Netherlands Government therefore argues that Netherlands legislation makes a distinction not on the basis of nationality but on the basis of the quite different criterion of a permanent and irrevocable right of residence. In many cases, however, Community nationals do not have such a permanent right, as indeed in this case, since under Community law a residence permit is restricted to five years in the first instance, and only thereafter becomes indefeasible.
               In its observations the Commission has stated that from the point of view of Community law the opinion of the Netherlands authorities is not entirely correct. In reality workers from other Member States have a right of residence based directly on the Treaty and its implementing provisions. A distinction must be drawn between that right and the residence permit provided for in Council Directive No 68/360/EEC of 15 October 1968. That permit is only proof of the right of residence and is thus not constitutive in its effect; furthermore, Article 6 (1) (b) of the directive lays down only a minimum period of validity. The relevant case-law, it must be acknowledged, takes the same approach. Thus in its judgment in Case 48/75 (
                     1
                  ) the Court emphasized that workers derive a right of residence directly from Article 48 of the Treaty; that, said the Court, was the assumption underlying Article 1 of Regulation No 1612/68 and Article 4 of Directive No 68/360 ([1976] ECR at p. 511 et seq., paragraphs 19 to 27). The Court also held that a residence permit is issued only as proof of that right, that the right of residence is acquired independently of the issue of a residence permit, and that the grant of a permit therefore does not give rise to rights but has merely declaratory effect (paragraphs 24 to 33).
               On that view, it may well be that Netherlands law on aliens has been applied to Community nationals on the basis of an incorrect premise and that an appropriate clarification would enable the Netherlands authorities to conclude that nationals of other Member States with a right of residence derived from the Treaty already have the right under the existing wording of the Vreemdelingencirculaire to bring with them a steady companion as referred to in Paragraph 3 of the Vreemdelingencirculaire. The Court might therefore consider making such a clarification in its ruling.
               Since it is not certain, however, that the problems raised in the main proceedings can in fact be resolved in that manner (at the hearing the appellant's representative emphasized the fact that under Community law only a temporary residence permit is issued in the first instance, and the Netherlands law relies on that fact), the Court can hardly confine itself to such a clarification. The reference must therefore be dealt with in detail as it stands, in order to provide the Hoge Raad with the elements of Community law on which it may base its decision regarding the Vreemdelingencirculaire.
            
         II — The questions referred
      1. Questions 1 and 2 (which may be dealt with together)
      The central issue here is whether, assuming that workers from other Member States are not in fact covered by the second indent of Paragraph 3.1. of the Vreemdelingencirculaire, they must, in accordance with the principle of equal treatment, be treated in the same way as Dutch workers in this regard
      
      The Commission would answer in the affirmative. In its view the discrimination practised in the Netherlands is not compatible with Articles 7 and 48 of the EEC Treaty; the principle of freedom of movement requires that workers from other Member States should be able to bring their companions with them. At the hearing the respondent's representative expressed the same view. The Netherlands Government, on the other hand, argues essentially that freedom of movement is not simply a product of the application of the principle of equal treatment but presupposes independent rights. The principle of equal treatment for workers does not apply in all respects (for instance, with regard to voting rights or the education of the children of migrant workers in their native language, even though freedom of movement could be impeded as a result). In particular, it does not apply with regard to the right of residence of foreign workers and persons associated with them. The Treaty and Community secondary legislation provide for independent rights in that respect, and when Regulation No 1612/68 speaks of a right of admission for workers' families it must be assumed that that is intended to create an exhaustive right and therefore does not apply to partners who are not mentioned.
      
               (a)
            
            
               It must be pointed out first of all in that regard that if it is to be assumed that under the Vreemdelingencirculaire Community nationals are not entitled to be accompanied to the Netherlands by their partner, although Netherlands nationals do have such a right, the obvious conclusion is that there is discrimination on grounds of nationality, contrary to Article 7 of the EEC Treaty. The submission of the Netherlands Government that there is no such discrimination since the real criterion is not that of nationality but that of the permanent right of residence is not entirely convincing. In that regard the Commission has referred to the judgments of the Court according to which Community law prohibits not only overt discrimination by reason of nationality but also covert forms of discrimination which, by the application of other criteria, lead to the same result (see the judgment of the Court in Case 152/73). (
                     2
                  ) Such discrimination might be held to exist in this case if despite the use of an apparently neutral criterion nationals of other Member States are largely placed at a disadvantage by comparison with persons whose place of residence is in the Netherlands.
               In the event, that issue need not be settled here, however, as we shall see in a moment.
            
         
               (b)
            
            
               It would not be correct to examine the problems raised in the main proceedings in the light only of the prohibition of discrimination laid down in Article 7 of the EEC Treaty. Indeed, the order of the national court itself speaks correctly of Article 7 in conjunction with Article 48 of the Treaty. The Court has held on a number of occasions that in the area of freedom of movement, at issue here, the principle laid down in Article 7 is given its concrete application in Article 48 of the EEC Treaty (see for instance the judgments in Cases 8/77, (
                     3
                  ) 1/78, (
                     4
                  ) 35 and 36/82, (
                     5
                  ) and 180/83). (
                     6
                  ) For the purpose of interpretation our inquiry should therefore focus on Article 48 of the EEC Treaty and the secondary legislation based on that article.
            
         
               (c)
            
            
               If Article 48 of the EEC Treaty is looked at more closely, it is hard to deny that the interpretation proposed by the Netherlands Government is persuasive.
               The meaning of freedom of movement is indicated in Article 48 (2). That paragraph speaks of the abolition of any discrimination based on nationality between workers of the
               Member States as regards employment, remuneration and other conditions of work and employment. That means that in the areas referred to workers from other Member States must be treated in the same way as nationals of the host State, and discrimination on the basis of nationality must cease. It is a classic example of the principle of nondiscrimination which is a prohibition (Article 7 of the EEC Treaty) of measures which place nationals of other Member States at a disadvantage, whatever the legal position of nationals of the host State. The legal position of a Community national as a result of the prohibition of discrimination may thus vary according to the Member State, the sector and in some cases even the collective agreement in question. It corresponds to the position of the nationals of the host State.
               Attention must also be given to Article 48 (3), under which workers have a number of rights (inter alia the right to move freely within the territory of Member States in order to take up employment, the right to remain in a Member State for the purpose of employment and the right to remain in the territory of a Member State after having been employed in that State, subject to conditions to be laid down by the Commission). Examination of those provisions, with particular reference to the reservation in Article 48 (3) and the wording of Article 48 (3) (d), leads inescapably to the conclusion that those rights are granted to Community nationals in order to give practical effect to the principle of freedom of movement, and not to place them in the same position as the nationals of the host State, who enjoy comprehensive freedom of action in their home country, not a right to reside there for a specific purpose.
               The rights granted in Article 48 (3) are not patterned on the rights of the nationals of the host State. They are positive rights which in principle apply in a uniform manner throughout the Community. Thus workers from other Community countries must be treated in the same way as nationals of the host State not in all respects but only with regard to the matters referred to in Article 48 (2). That principle was applied in Cases 15/69 (
                     7
                  ) (inclusion of a period of military service in the calculation of an employee's seniority), 44/72 (
                     8
                  ) (protection against dismissal under the German Law on seriously disabled persons) and 152/73 (
                     2
                  ) (separation allowance paid to employees of the German Federal Post Office). With regard to the right of residence, on the other hand, there can be no question of a right to equal treatment; in that respect it is more appropriate to speak of the granting of independent rights.
            
         
               (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.
            
         
               (e)
            
            
               I think, therefore, that the first two questions must be answered in the manner proposed by the Netherlands Government: if the Vreemdelingencirculaire is to be interpreted in such a manner that workers from other Member States are not in any event covered by the second indent of Paragraph 3.1, it cannot be challenged on the basis of the prohibition of discrimination laid down in Article 7 in conjunction with Article 48 of the EEC Treaty.
            
         2. Question 3
      The third question concerns the interpretation of Article 10 of Regulation No 1612/68, which is worded as follows:
      
               ‘1.
            
            
               The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
               
                        (a)
                     
                     
                        his spouse and their descendants who are under the age of 21 years or are dependents;
                     
                  
                        (b)
                     
                     
                        dependent relatives in the ascending line of the worker and his spouse.
                     
                  
         
               2.
            
            
               Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.
            
         
               3.
            
            
               ...’.
            
         On this point the Netherlands Government and the Commission are for the most part in agreement, since they both take the view that the word ‘spouse’ as used in that provision does not include a partner such as the respondent in the main proceedings. At the hearing Counsel for the respondent, on the other hand, argued in favour of a broad interpretation, based in particular on the point that people who simply live together nowadays would at the time when Regulation No 1612/68 was adopted in all likelihood have chosen to be legally wed. To ignore that when interpreting the right of accompaniment provided for in Article 10 of Regulation No 1612/68 would be to restrict freedom of movement, and the principle would thus have a more limited application today than it had a number of years ago.
      
               (a)
            
            
               It must be pointed out first of all, as all the parties agree, that the term ‘spouse’ has a specific meaning in Community law. Article 10 thus does not refer to national law, that is to say, the law of the host State or, in accordance with the principles of private international law, the law of the State of origin of the person concerned. There is no indication of any intention to make such reference; that is normally done very explicitly in Community law. Moreover, were it otherwise there would be divergence in the application of the law on an issue important for freedom of movement, which would be just as unacceptable as divergence with regard to the term ‘worker’ was held to be in the judgments in Cases 75/63 (
                     17
                  ) and 53/81. (
                     18
                  )
            
         
               (b)
            
            
               There is much to be said, moreover, for the conclusion that the term in question was originally intended, on the adoption of Regulation No 1612/68, to be a term of law, that is to say that the term ‘spouse’ meant only a partner to a valid marriage. I say that not only because it was much less common at that time for couples simply to live together; reference may also be made to the other terms used in that connection (descendants, relatives in the ascending line) and in particular to the fact that with regard to more distant family members Article 10 (2) simply requires Member States to ‘facilitate’ their admission, from which it can hardly be concluded that partners who have no marital or family relationship to the worker should be placed in a better position.
            
         
               (c)
            
            
               If, however, the question is raised whether in view of subsequent developments (the Commission, too, speaks of the tendency in a number of Member States to treat persons living together as man and wife in the same way as married couples for many purposes, for example fiscal and social legislation) a different interpretation of the legislature's intention, based on the dynamic approach, is now required, it is difficult, taking into account all aspects of the issue, to reply in the affirmative.
               Certainly it is not sufficient, in support of such an interpretation, simply to refer to the remark in the judgment in Case 267/83, (
                     16
                  ) mentioned above, that in the interest of freedom of movement Article 10 of Regulation No 1612/68 must not be interpreted restrictively. It was made solely in connection with the question in what circumstances a person could be said to live with a worker for the purposes of Article 10, in a case involving spouses in the legal sense.
               The argument against such a broad interpretation of Article 10 is given further support by the fact that companions can certainly not be treated in the same way as spouses in all Member States in view of the fact that their cultural, social and ethical traditions vary widely in some respects. If the term in Community law were nevertheless interpreted as broadly as the respondent suggests the result could be indirect discrimination against nationals of countries whose laws do not permit them to bring foreign companions to live with them.
               Serious doubts also arise, it could be said, in the matter of legal certainty. As the legal situation in the Netherlands shows, if companions are to be treated in the same way as spouses it is imperative to lay down limits, criteria and conditions (in particular with regard to the duration and nature of the relationship). These are certainly a matter for the legislature, and can hardly be determined by the Court of Justice in the course of the interpretation of a regulation intended to cover other cases.
            
         
               (d)
            
            
               Article 10 of Regulation No 1612/68 must therefore be interpreted as proposed by the Commission and the Netherlands Government, that is to say it must be held that a person who has a stable relationship with a worker cannot be treated as a ‘spouse’.
            
         C — In view of all the foregoing I propose that the Court should reply in the following manner to the questions raised by the Hoge Raad:
      
               (a)
            
            
               The prohibition of discrimination laid down in Article 7 in conjunction with Article 48 of the EEC Treaty does not mean that a Member State which, in accordance with its policy on aliens, treats a person who has a stable relationship with a worker who is a national of that State or has in principle an unrestricted right of residence there as his spouse must grant the same treatment to a person who has a stable relationship with a worker who is a national of another Member State but is employed and resides in the first Member State.
            
         
               (b)
            
            
               Article 10 (1) (a) of Regulation No 1612/68 is not to be interpreted as meaning that in certain circumstances a person who has a stable relationship with a worker within the meaning of that provision is to be treated as his spouse.
            
         (
            *1
         )	Translated from the German.
      (
            1
         )	Judgment of 8 April 1976 in Case 48/75 ¡cm Noil Rover [1976] ECR 497.
      (
            2
         )	Judgment of 12 February 1974 in Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153.
      (
            3
         )	Judgment of 14 July 1977 in Case 8/77 Concetta Sagulo, Gennaro Brenca ani Addelmadjid Bakbouche [1977] ECR 1495.
      (
            4
         )	Judgment of 28 June 1978 in Cise 1/78 Patrick Christopher Kenny y Insurance Officer [1978] ECR 1489.
      (
            5
         )	Judgment of 27 October 1982 in Joined Cases 35 and 36/82 Elestina Esselina Christina Morion v State of the Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreetndetinjenwet; Sewradjie Jhanjan v Stau of the Netherlands [1982] ECR 3723.
      (
            6
         )	Judgment of 28 June 1984 in Case 180/83 Hans Moser v Land Baden-Württemberg [1984] ECR 2539.
      (
            7
         )	Judgment of 15 October 1969 in Case 15/69 Württembergische Milchverwertung Südmilch AG v Salvatore Ugliola [1969] ECR 363.
      (
            8
         )	Judgment of 13 December 1972 in Case 44/72 Fitter Marsman v M. Rosskamp [1972] ECR 1243.
      (
            9
         )	Judgment of 7 July 1976 in Case 118/75 Lynne Watson and Alessandro Belmann [1976] ECR 1185.
      (
            10
         )	This title is missing in the original text of Regulation No 1612/68 in the original languages (Official Journal L 257 of 19.10.1968, p. 8). It was added by a corrigendum published in Official Journal L 295 of 7.12.1968, p. 12.
      (
            11
         )	Judgment of 30 September 1975 in Case 32/75 Anita Cristini v Société nationale des chemins de fer français [1975] ECR 1085.
      (
            12
         )	Judgment of 12 July 1984 in Case 261/83 Carmela Castelli v Office national des pensions pour travailleurs salariés [1984] ECR 3199.
      (
            13
         )	Judgment of 27 March 1985 in Case 122/84 Kenneth Scrivner and Carol Cole v Centre public d'aide sociale de chastre [1985] ECR 1027.
      (
            14
         )	Judgment of 11 July 1985 in Case 137/84 Ministère public v Mutsch [1985] ECR 2681.
      (
            15
         )	Judgment of 13 July 1983 in Case 152/82, Sandro Forcheri and his wife Marisa Forchen (née Marino) v Belgian State and Asbl Institut supérieur de sciences humaines appliquées — teole ouvrière supérieure [1983] ECR 2323.
      (
            16
         )	Judgment of 13 February 1985 in Case 267/83 Aissatou Diatta v Land Berlin [1985] ECR 567.
      (
            17
         )	Judgment of 19 March 1964 in Case 75/63 Mrs M. K. H. Hoekstra (née Unger) v Bestuur der Bedrijsvereniging voor Detailhandel en Ambachten [1964] ECR 177.
      (
            18
         )	Judgment of 23 March 1982 in Case 53/81 D. M. Levin v Staatssecretaris van Justitie [1982] ECR 1035.