CELEX: 62005CJ0010
Language: en
Date: 2006-03-30
Title: Judgment of the Court (First Chamber) of 30 March 2006.#Cynthia Mattern and Hajrudin Cikotic v Ministre du Travail et de l'Emploi.#Reference for a preliminary ruling: Cour administrative - Luxembourg.#Freedom of movement for persons - Workers - Family members - Right of a national of a third country married to a Community national to take up an activity as an employed person - Conditions.#Case C-10/05.

Case C-10/05
      Cynthia Mattern and Hajrudin Cikotic
      v
      Ministre du Travail et de l’Emploi
      (Reference for a preliminary ruling from the Cour administrative (Luxembourg))
      (Freedom of movement for persons – Workers – Family members – Right of a national of a third country married to a Community national to take up an activity as an employed person – Conditions)
      Summary of the Judgment
      Freedom of movement for persons – Workers – Right of family members to take up an activity as an employed person
      (Council Regulation No 1612/68, Art. 11)
      Article 11 of Regulation No 1612/68 on freedom of movement for workers within the Community does not confer on a national
         of a third country the right to take up an activity as an employed person in a Member State other than the one in which his
         spouse, a Community national, pursues or has pursued an activity as an employed person in exercise of her right to free movement.
         
      
      (see para. 28, operative part)
JUDGMENT OF THE COURT (First Chamber)
      30 March 2006 (*)
      
      (Freedom of movement for persons – Workers – Family members – Right of a national of a third country married to a Community national to take up an activity as an employed person – Conditions)
      In Case C-10/05,
      REFERENCE for a preliminary ruling under Article 234 EC from the Cour administrative (Luxembourg), made by decision of 11
         January 2005, received at the Court on 14 January 2005, in the proceedings
      
      Cynthia Mattern,
      Hajrudin Cikotic
      v
      Ministre du Travail et de l’Emploi,
      THE COURT (First Chamber),
      composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, J.N. Cunha Rodrigues (Rapporteur) and E. Juhász,
         Judges,
      
      Advocate General: J. Kokott,
      Registrar: R. Grass,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –        the German Government, by M. Lumma and C. Schulze-Bahr, acting as Agents,
      –        the United Kingdom Government, by S. Nwaokolo, acting as Agent, and M. Hoskins, Barrister,
      –        the Commission of the European Communities, by G. Rozet, acting as Agent,
      after hearing the Opinion of the Advocate General at the sitting on 15 December 2005,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Article 11 of Regulation (EEC) No 1612/68 of the Council
         of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475),
         as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1; ‘the Regulation’). 
      
      2        The reference has been made in the course of proceedings between Ms Mattern and Mr Cikotic, on the one hand, and the Ministre
         du Travail et de l’Emploi (Minister for Work and Employment), on the other, regarding the latter’s decision to refuse to grant
         Mr Cikotic a work permit. 
      
       Legal context
       Community law 
      3        Under Article 39(2) EC freedom of movement for workers entails 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.
      
      4        Under Article 39(3) EC freedom of movement for workers ‘shall entail the right, subject to limitations justified on grounds
         of public policy, public security or public health:
      
      ... 
      (c)      to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals
         of that State laid down by law, regulation or administrative action;
      
      …’
      5        Article 3(1) of the Regulation provides: 
      
      ‘Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a
         Member State shall not apply: 
      
      –        where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment
         or subject these to conditions not applicable in respect of their own nationals; or
      
      –        where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other
         Member States away from the employment offered.
      
      –        …’
      6        Article 11 of the Regulation is worded as follows: 
      
      ‘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.’ 
      
       National law 
      7        Article 1 of the Grand Ducal Regulation of 12 May 1972, establishing the measures applicable to the employment of foreign
         workers within the territory of the Grand Duchy of Luxembourg (Mémorial A 1972, p. 945), as amended by the Grand Ducal Regulation of 17 June 1994 (Mémorial A 1994, p. 1034) (the ‘Grand Ducal Regulation of 1972’), provides:
      
      ‘Without prejudice to the provisions relating to entry into and residence in the Grand Duchy of Luxembourg, no alien may work
         in a manual or non-manual capacity in Luxembourg without being authorised to do so pursuant to the present regulation.
      
      …
      The provisions of the present regulation shall not apply to workers who are nationals of a Member State of the European Union
         or of a State party to the Agreement on the European Economic Area.’ 
      
      8        Article 10 of the Grand Ducal Regulation of 1972 makes it possible to refuse to grant a foreign worker a work permit and to
         renew it for reasons inherent in the situation, evolution or organisation of the labour market. 
      
       The dispute in the main proceedings and the question referred for a preliminary ruling 
      9        According to the documents in the case-file submitted to the Court, Mr Cikotic, a national of a third country, is married
         to Ms Mattern, of Luxembourg nationality, and they reside in Belgium. 
      
      10      Ms Mattern has followed vocational secondary education training as a family and health care assistant in Belgium. From March
         to June 2003, she also attended professional training as a care assistant in that Member State. 
      
      11      By decision of 14 July 2003, the Ministre du Travail et de l’Emploi rejected the application for a work permit submitted on
         18 March 2003 to the Luxembourg employment authorities by Mr Cikotic on the basis of a declaration of employment. 
      
      12      In the action brought against that decision before the Tribunal administrative (Administrative Court), the applicants in the
         main proceedings submitted that Mr Cikotic was exempt from the requirement to obtain a work permit because, as a citizen of
         a third country married to a Community national, he was eligible, pursuant to the principle of freedom of movement for workers,
         to take up paid employment in Luxembourg. 
      
      13      By judgment of 29 March 2004, the Tribunal administratif dismissed that action, finding in particular that, because Ms Mattern
         did not pursue an activity as an employed person in Belgium, the Regulation was not applicable in the present case. 
      
      14      The Cour administrative (Higher Administrative Court), before which an appeal was brought against that judgment, decided to
         stay proceedings and to refer 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?’
      
       The question referred 
      15      Under Article 11 of the Regulation, 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 are to 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. 
      
      16      The right granted to the spouse of a migrant worker by that article is linked to the rights which that worker enjoys under
         Article 39 EC (see Case 131/85 Gül [1986] ECR 1573, paragraph 20). 
      
      17      It follows that the right of a national of a third country married to a Community national to have access to the labour market
         of a Member State depends on the rights which that Community national enjoys under Article 39 EC and in particular by reason
         of her status as a worker.
      
      18      As the Court has held, the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must
         not be interpreted narrowly. 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’. The essential feature
         of an employment relationship is, according to that case-law, 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 (see, in particular, Case 66/85
         Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, and Case C-456/02 Trojani [2004] ECR I-7573, paragraph 15).
      
      19      In this case, as the decision to refer indicates, after following vocational secondary education training in Belgium, Ms Mattern
         completed a professional training period as a care assistant in that Member State.
      
      20      That training period is liable to confer on Ms Mattern the status of worker for the purposes of Community law. 
      
      21      According to settled case-law, the fact that the training period may be regarded as practical preparation directly related
         to the actual pursuit of the occupation in point is not a bar to the application of Article 39 EC if the training period is
         completed under the conditions of genuine and effective activity as an employed person (see, in particular, Lawrie-Blum, paragraph 19, and Case C-109/04 Kranemann [2005] ECR I-2421, paragraph 13). 
      
      22      In addition, whilst it is clear that remuneration for services performed constitutes an essential feature of an employment
         relationship, the fact remains that neither the origin of the funds from which the remuneration is paid nor the limited amount
         of that remuneration can have any consequence in regard to whether or not the person is a worker for the purposes of Community
         law (see Case 53/81 Levin [1982] ECR 1035, paragraph 16, and Kranemann, paragraph 17). 
      
      23      It is for the national court, when assessing the facts, for which it alone is competent, to verify whether, in the course
         of her professional training period, Ms Mattern pursued a genuine and effective activity as an employed person, in such a
         way that she can be regarded as a worker within the meaning of Article 39 EC. 
      
      24      However, it follows from the actual wording of Article 11 of the Regulation that the right of a national of a third country
         married to a Community national to have access to the labour market may be relied on only in the Member State where that Community
         national pursues an activity as an employed or self-employed person. 
      
      25      As the Advocate General correctly observed in point 33 of her Opinion, the right conferred by Article 11 of the Regulation
         on family members of migrant workers to pursue employed activity is not a direct right to free movement, since that provision
         benefits the migrant worker whose family includes a national of a third country as a spouse or dependent child. 
      
      26      It is common ground that at the time of the facts in the main proceedings Ms Mattern was not pursuing any activity as an employed
         or self-employed person in a Member State other than Belgium.
      
      27      Accordingly, Mr Cikotic, could rely on Article 11 of the Regulation only in Belgium in order to have access in that Member
         State to the labour market under the same conditions as those prescribed for nationals of that State. 
      
      28      In the light of the foregoing, the reply to the question referred must be that Article 11 of the Regulation does not confer
         on a national of a third country the right to take up an activity as an employed person in a Member State other than the one
         in which his spouse, a Community national, pursues or has pursued an activity as an employed person in exercise of her right
         to free movement. 
      
       Costs
      29      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable. 
      
      On those grounds, the Court (First Chamber) hereby rules:
      In circumstances such as those in the main proceedings, Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October
            1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July
            1992, does not confer on a national of a third country the right to take up an activity as an employed person in a Member
            State other than the one in which his spouse, a Community national, pursues or has pursued an activity as an employed person
            in exercise of her right to free movement. 
      [Signatures]
      * Language of the case: French.