V. J. M. Raulin v Minister van Onderwijs en Wetenschappen.
Date: 1992-02-26
9 It is apparent from the reference for a preliminary ruling that under Netherlands law an oproepcontract is a means of recruiting workers in sectors, such as the hotel trade, where the volume of work is subject to seasonal variations. Under such a contract, no guarantee is given as to the hours to be worked and, often, the person involved works only a very few days per week or hours per day. The employer is liable to pay wages and grant social advantages only in so far as the worker has actually performed work. Furthermore, the Netherlands Government stated at the hearing that under such an oproepcontract the employee is not obliged to heed the employer' s call for him to work.
10 It should be recalled at the outset that the Court has consistently held that the concept of worker has a Community meaning and must not be interpreted in a restrictive manner. Nevertheless, in order to be regarded as a worker, a person must perform effective and genuine activities to the exclusion of activities on such a small scale as to be purely marginal and ancillary. The essential characteristic of an 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). In this context, the nature of the legal relationship between the employee and the employer is not decisive in regard to the application of Article 48 of the EEC Treaty (see the judgment in Case 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621, paragraph 16).
13 It should be recalled that whilst part-time work is not excluded from the field of application of the rules on freedom of movement for workers, those cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary (judgment in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17). It is up to the national courts to make the necessary findings of fact in order to establish whether the person concerned can be considered to be a worker within the meaning of that case-law.
14 The national court may, however, when assessing the effective and genuine nature of the activity in question, take account of the irregular nature and limited duration of the services actually performed under a contract for occasional employment. The fact that the person concerned worked only a very limited number of hours in a labour relationship may be an indication that the activities exercised are purely marginal and ancillary. The national court may also take account, if appropriate, of the fact that the person must remain available to work if called upon to do so by the employer.
18 As for the occupational activities performed in the host Member State, it should be pointed out that in the field of assistance granted for university education, the Court has already held that, except in the case of involuntary unemployment, retention of the status of worker is conditional on there being a relationship between the previous occupational activity and the studies pursued (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 previously exercised in the host Member State, regardless of whether or not they were interrupted by periods of training or retraining, bear a relationship to the studies in question.
21 As the Court has already held, 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 provided that there is a link between the previous occupational activity and the studies in question (see, in particular, the aforementioned judgment in Lair, paragraph 39). However, as was stated in paragraph 18 above, 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 vocational retraining in another field of activity.
25 To begin with, it must be recalled that the first paragraph of Article 7 of the EEC Treaty applies to assistance granted by a Member State to its nationals for the purposes of university studies only in so far as such assistance is intended to cover enrolment and other fees, in particular tuition fees, charged for access to education (see the abovementioned judgments in Lair, paragraph 16, and Brown).
34 The Commission' s argument must be accepted. The right to equality of treatment regarding the conditions of access to vocational training applies not only to the requirements laid down by the educational establishment in question, such as enrolment fees, but also any measure that may prevent the exercise of that right. It is clear that a student admitted to a course of vocational training might be unable to attend the course if he did not have a right of residence in the Member State where the course takes place. It follows that the principle of non-discrimination with regard to conditions of access to vocational training deriving from Articles 7 and 128 of the EEC Treaty implies that a national of a Member State who has been admitted to a vocational training course in another Member State enjoys, in this respect, a right of residence for the duration of the course.
36 In this respect the Court has consistently held that a residence permit is a document serving to prove the individual position of a national of another Member State with regard to provisions of Community law. However, the issue of such a permit does not create the rights guaranteed by Community law and the lack of a permit cannot affect the exercise of those rights (see in particular the judgments in Case 48/75 Royer [1976] ECR 497, paragraph 33, and in Joined Cases 389/87 and 390/87 Echternach and Moritz v Minister van Onderwijs en Wetenschappen [1989] ECR 723, paragraph 25).