Sylvie Lair v Universität Hannover.
Date: 1988-06-21
15 Subject to that reservation, it must be stated that at the present stage of development of Community law assistance given to students for maintenance and for training falls in principle outside the scope of the EEC Treaty for the purposes of Article 7 . It is, on the one hand, a matter of educational policy, which is not as such included in the spheres entrusted to the Community institutions ( see Gravier ) and, on the other, a matter of social policy, which falls within the competence of the Member States in so far as it is not covered by specific provisions of the EEC Treaty ( see the judgment of 9 July 1987 in Joined Cases 281, 283 to 285 and 287/85 Germany and Others v Commission - migration policy - (( 1987 )) ECR 3203 ).
16 The answer to the second question must therefore be that at the present stage of development of Community law the first paragraph of Article 7 of the EEC Treaty applies to assistance for maintenance and training given by a Member State to its nationals for the purposes of university studies only in so far as such assistance is intended to cover registration and other fees, in particular tuition fees, charged for access to education .
Interpretation of Article 7 of Regulation No 1612/68 ( the first question )
18 In order to define the concept of social advantage within the meaning of Article 7 ( 2 ) of Regulation No 1612/68, it must first be recalled that the aim of that regulation is to enable the objectives laid down in Articles 48 and 49 of the EEC Treaty in the field of freedom of movement for workers to be achieved . That freedom forms part of the freedom of movement for persons referred to in Article 3 ( c ) of the EEC Treaty and the fundamental freedoms guaranteed by the Treaty .
23 It must now be considered whether or not a grant such as that at issue in the present case is covered by the concept of social advantage as interpreted above . It should be pointed out that such assistance, awarded for the student' s maintenance and training, is particularly appropriate from a worker' s point of view for improving his professional qualifications and promoting his social advancement . Moreover, the grant and the repayment of the benefits received are linked in national law to the beneficiary' s means, and are thus dependent on social criteria .
24 It follows that such a grant constitutes a social advantage within the meaning of Article 7 ( 2 ) of Regulation No 1612/68 .
31 Although the wording of those provisions does not provide an express answer to that question, there is nevertheless a basis in Community law for the view that the rights guaranteed to migrant workers do not necessarily depend on the actual or continuing existence of an employment relationship .
32 With regard to nationals of another Member State who have not yet taken up employment in the host State, it should first be noted that Article 48 ( 3 ) ( a ) and ( b ) guarantees such persons the right to accept offers of employment actually made and to move freely within the territory of the Member States for that purpose . Those provisions were implemented by Part I, Title I of Regulation No 1612/68 .
33 Persons who have previously pursued in the host Member State an effective and genuine activity as an employed person as defined by the Court ( see the judgment of 23 March 1982 in Case 53/81 Levin v Staatssecretaris van Justitie (( 1982 )) ECR 1035, and of 3 June 1986 in Case 139/85 Kempf v Staatssecretaris van Justitie (( 1986 )) ECR 1741 ) but who are no longer employed are nevertheless considered to be workers under certain provisions of Community law .
34 First, under Article 48 ( 3 ) ( d ) of the EEC Treaty, persons who remain in the territory of a Member State after having been employed in that State are regarded as workers . Regulation ( EEC ) 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 ), which implemented that provision of the Treaty, gives workers whose occupational activity has terminated and their families the right, under certain conditions, to remain permanently in the territory of a Member State . Secondly, Council Directive 68/360/EEC 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 ) prohibits Member States in certain circumstances from withdrawing a residence permit from a worker solely on the ground that he is no longer in employment . Thirdly, and lastly, under Article 7 ( 1 ) of Regulation No 1612/68 a migrant worker who has become unemployed may not be treated differently from national workers in the same position as regards reinstatement or re-employment .
35 Furthermore, Article 7 ( 3 ) of Regulation No 1612/68 guarantees migrant workers access, by virtue of the same right and under the same conditions as national workers, to training in vocational schools and retraining centres . That right to specific training, guaranteed by Community legislation, does not depend on the continued existence of an employment relationship .
36 It is therefore clear that migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship .
37 In the field of grants for university education, such a link between the status of worker and a grant awarded for maintenance and training with a view to the pursuit of university studies does, however, presuppose some continuity between the previous occupational activity and the course of study; there must be a relationship between the purpose of the studies and the previous occupational activity . Such continuity may not, however, be required where a migrant has involuntarily become unemployed and is obliged by conditions on the job market to undertake occupational retraining in another field of activity .
39 The answer to the second part of the first question should therefore be that a national of another Member State who has undertaken university studies in the host State leading to a professional qualification, after having engaged in occupational activity in that State, must be regarded as having retained his status as a worker and is entitled as such to the benefit of Article 7 ( 2 ) of Regulation No 1612/68, provided that there is a link between the previous occupational activity and the studies in question .
The fixing of a minimum period of prior occupational activity as a condition for the granting of the same social advantages
43 In so far as the arguments submitted by the three Member States in question are motivated by a desire to prevent certain abuses, for example where it may be established on the basis of objective evidence that a worker has entered a 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, it should be observed that such abuses are not covered by the Community provisions in question .