M. J. E. Bernini v Minister van Onderwijs en Wetenschappen.
Date: 1992-02-26
11 It is for the national court or tribunal to assess the relevance of the questions of law raised by the dispute before it and the necessity for a preliminary ruling so as to enable it to give judgment (see in particular the judgment in Case 338/85 Pardini v Ministero del Commercio con l' Estero [1988] ECR 2041, paragraph 8). In that connection the abovementioned letter indicates that the tribunal making the reference considers that the reply to the third and fourth questions may be deduced from the case-law of the Court, in particular from the judgment in Di Leo, cited above. On the other hand, it wishes to receive a reply to the other questions put by it. In those circumstances it is necessary to reply only to the first, second and fifth questions submitted by the tribunal.
14 It must be recalled at the outset that the Court has consistently held that the concept of worker within the meaning of Article 48 of the EEC Treaty has a specific Community meaning. To come within the definition of worker a person must 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 ancillary. The essential characteristic of the employment relationship is that for a certain period a person performs services for and under the direction of another person in return for which he receives remuneration (see in particular the judgment in Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205, paragraph 21).
15 As the Court held in its judgment in Case 66/85 Lawrie-Blum v Land Baden Wuerttemberg [1986] ECR 2145, paragraphs 19 to 21, 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 the conditions of genuine and effective activity as an employed person.
16 That conclusion cannot be invalidated by the fact that the trainee' s productivity is low, that he works only a small number of hours per week and, consequently, receives limited remuneration (see the judgment in Lawrie-Blum, cited above, paragraph 21, and the judgment in Case 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621, paragraph 15). However, 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 in all the circumstances the person concerned has completed a sufficient number of hours in order to familiarize himself with the work.
17 The reply to the first question must therefore be that a national of a Member State who has worked in another Member State in the context of occupational training must be regarded as a worker within the meaning of Article 48 of the EEC Treaty and of Regulation No 1612/68 if he has performed services in return for which he has received remuneration, provided that his activities are genuine and effective.
The second question
19 It should be borne in mind that, in the field of grants for university education, the Court has already held that, except in the case of involuntary unemployment, in order to retain the status of worker there has to be a relationship between the previous occupational activity and the studies undertaken (judgment in Case 39/86 Lair v Universitaet Hannover [1988] ECR 3161, paragraph 37). It is for the national court to assess whether all the occupational activities pursued previously in the host country, whether or not interrupted by periods of training, re-training or readaptation, disclose a relationship with the subject-matter of the studies in question. In that connection it is for that court to take into account the various factors which are useful in making that assessment, such as the nature and the diversity of the activities pursued and the duration of the period between the end of those activities and the commencement of the studies.
20 With regard to the argument put forward by the Danish Government to the effect that a worker leaving the host Member country to pursue studies in the Member State of which he is a national cannot rely on the provisions of Article 7(2) of Regulation No 1612/68, it should be borne in mind that, once a Member State offers to its national workers grants to pursue studies in another Member State, that opportunity must be extended to Community workers established within its territory (see the judgment in Case 235/87 Matteucci v Communauté Française of Belgium [1988] ECR 5589, paragraph 16). As is apparent from the judgment in Di Leo, cited above, the fact that the studies are pursued in the State of which the person concerned is a national is without significance in this connection.
23 As a preliminary point, it should be borne in mind that assistance granted for maintenance and education in order to pursue university studies evidenced by a professional qualification constitutes for the student who benefits therefrom a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see in particular the judgment in Lair, cited above, paragraph 24).
25 It follows from the judgment of the Court in Case 94/84 ONEM v Deak [1985] ECR 1873 that a migrant worker may rely on Article 77(2) of Regulation No 1612/68 in order to obtain social benefits provided for in the legislation of the host Member State in favour of the children of national workers (see paragraph 24 of the judgment). However, that benefit constitutes in favour of the migrant worker a social advantage within the meaning of that provision only where the worker continues to support his descendant (see the judgment in Case 316/85 Centre Publique d' Aide Sociale de Courcelles v Lebon [1987] ECR 2811, paragraph 13).
26 The national court next wishes to know whether the child of the worker may, under Article 7(2) of Regulation No 1612/68 claim an independent right to study finance. It should be pointed out in that connection that it follows from the judgment in Lebon, cited above, that the dependent members of the family are the indirect beneficiaries of the equal treatment accorded to the migrant worker. Consequently, where the grant of financing to a child of a migrant worker constitutes a social advantage for the migrant worker, the child may itself rely on Article 7(2) in order to obtain that financing if under national law it is granted directly to the student.
28 In that connection it is sufficient to point out that the principle of equal treatment laid down in Article 7 of Regulation No 1612/68 is also intended to prevent discrimination to the detriment of descendants dependent on the worker (see the judgment in Deak, cited above, paragraph 22). It follows that, if the national legislation in question imposes no residence requirement on the children of national workers, such a condition may not be imposed on the children of Community workers.
29 Accordingly, the reply to the fifth question submitted by the national court should be that study finance granted by a Member State to the children of workers constitutes for a migrant worker a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, where the worker continues to support the child. In such a case the child may rely on Article 7(2) in order to obtain study finance under the same conditions as are applicable to the children of national workers, and no additional residence requirement may be imposed upon him.