I. Bettray v Staatssecretaris van Justitie.
Date: 1989-05-31
12 According to the same judgment, that concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned, and 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 .
15 That conclusion is not altered by the fact that the productivity of persons employed in the scheme is low and that, consequently, their remuneration is largely provided by subsidies from public funds . Neither the level of productivity nor the origin of the funds from which the remuneration is paid can have any consequence in regard to whether or not the person is to be regarded as a worker .
16 Nor can the person cease to be regarded as a worker merely by virtue of the fact that the employment relationship under the Social Employment Law is of a sui generis nature in national law . As the Court has held ( see, primarily, the judgment of 12 February 1974 in Case 152/73 Sotgiu v Deutsches Bundespost (( 1974 )) ECR 153 ), the nature of the legal relationship between the employee and the employer is of no consequence in regard to the application of Article 48 of the Treaty .
17 However, work under the Social Employment Law cannot be regarded as an effective and genuine economic activity if it constitutes merely a means of rehabilitation or reintegration for the persons concerned and the purpose of the paid employment, which is adapted to the physical and mental possibilities of each person, is to enable those persons sooner or later to recover their capacity to take up ordinary employment or to lead as normal as possible a life .
18 It appears from the order for reference that the jobs in question are reserved for persons who, by reason of circumstances relating to their situation, are unable to take up employment under normal conditions and that the social employment ends once the local authority is informed by the employment office that the person concerned will be able within a short period to take up employment under normal conditions .
19 It also appears from the order for reference that persons employed under the Social Employment Law are not selected on the basis of their capacity to perform a certain activity; on the contrary, it is the activities which are chosen in the light of the capabilities of the persons who are going to perform them in order to maintain, re-establish or develop their capacity for work . Finally, the activities involved are pursued in the framework of undertakings or work associations created solely for that purpose by local authorities .
20 The reply to the national court' s question must therefore be that Article 48(1 ) of the EEC Treaty is to be interpreted as meaning that a national of a Member State employed in another Member State under a scheme such as that established under the Social Employment Law, in which the activities carried out are merely a means of rehabilitation or reintegration, cannot on that basis alone be regarded as a worker for the purposes of Community law .