Franca Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst.
Date: 2003-11-06
13. The Verwaltungsgerichtshof takes the view that, in light of the case-law of the Court relating to Article 48 of the Treaty and Article 7(2) of Regulation No 1612/68, it should, first of all, be determined whether Mrs Ninni-Orasche has acquired the status of a worker. On that point the national court is uncertain whether, having regard to the relevant case-law of the Court (Case 53/81  Levin  [1982] ECR 1035, paragraph 17, and Case C-357/89  Raulin  [1992] ECR I-1027), the short-term employment taken up by Mrs Ninni-Orasche can be regarded as an effective and genuine activity conferring on her the status of a worker.
16. Lastly, the national court observes that, having regard to Case 39/86  Lair  [1988] ECR 3161, paragraph 43, it must also be examined whether, in the context of the main proceedings, Mrs Ninni-Orasche ' s application for study finance was abusive, which would mean that the Community provisions conferring entitlement to such finance and prohibiting discrimination would not apply.
23. First of all, it is settled case-law that the concept of   " worker" , within the meaning of Article 48 of the Treaty, has a specific Community meaning and must not be interpreted narrowly (see, to that effect, inter alia, Case 66/85  Lawrie-Blum  [1986] ECR 2121, paragraph 16, Case 197/86  Brown  [1988] ECR 3205, paragraph 21, Case C-3/90  Bernini  [1992] ECR I-1071, paragraph 14, and Case C-337/97  Meeusen  [1999] ECR I-3289, paragraph 13).
24. Moreover, that concept must be defined in accordance with objective criteria characterising the employment relationship in view of the rights and duties of the persons concerned. 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 (see  Lawrie-Blum , cited above, paragraph 17, Case 344/87  Bettray  [1989] ECR 1621, paragraph 12, and  Meeusen , cited above, paragraph 13).
25. In the light of that case-law, it must be held that the fact that employment is of short duration cannot, in itself, exclude that employment from the scope of Article 48 of the Treaty.
26. In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory (see, in particular,  Levin , cited above, paragraph 17, and  Meeusen , paragraph 13).
27. When establishing whether that condition is satisfied, the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both the activities concerned and the employment relationship at issue.
28. It should be stated that, with respect to the assessment whether employment is capable of conferring the status of worker within the meaning of Article 48 of the Treaty, factors relating to the conduct of the person concerned before and after the period of employment are not relevant in establishing the status of worker within the meaning of that article. Such factors are not in any way related to the objective criteria referred to in the case-law cited in paragraphs 23 and 24 of this judgment.
34. According to the case-law referred to in the preceding paragrap h, migrant workers are guaranteed certain rights linked to the status as a worker even when they are no longer in an employment relationship ( Lair , cited above, paragraph 36, and Case C-35/97  Commission  v  France  [1998] ECR I-5325, paragraph 41).
35. In the field of assistance for university education, a national of a Member State other than the host Member State who has engaged in occupational activity in that host State and then undertaken there university studies leading to a professional qualification must be regarded as having retained his status as a worker entitled as such to benefit from Article 7(2) of Regulation No 1612/68 provided that there is continuity between the previous occupational activity and the studies pursued. However, this condition cannot be imposed on a migrant worker who has involuntarily become unemployed and is obliged by conditions on the labour market to undertake occupational retraining (see, to that effect,  Lair , paragraph 39, and  Raulin , cited above, paragraph 21).
36. However, that finding cannot give rise to a situation whereby a national of a Member State may enter another Member State for the sole purpose of enjoying, after a very short period of occupational activity, the benefit of the student assistance system in that State. Such an abuse is not covered by the Community provisions in question (see, to that effect,  Lair , paragraph 43).
Observations submitted to the Court