1 By order of 24 November 1989, which was received at the Court on 27 November 1989, the College van Beroep Studiefinanciering (Study Finance Tribunal) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty seven questions on the interpretation of Articles 7, 48 and 128 of that EEC Treaty and on interpretation of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475).
2 Those questions were raised in the course of proceedings brought by Ms V.J.M. Raulin, the plaintiff in the main proceedings, against the Minister van Onderwijs en Wetenschappen (Minister for Education and Science), the defendant in the main proceedings, concerning a request for study finance submitted by the plaintiff pursuant to the Wet op de Studiefinanciering (Law on Study Finance of 24 April 1986, hereinafter referred to as the "WSF").
3 It is apparent from the documents before the Court that the plaintiff, who is of French nationality, came to settle in the Netherlands at the end of 1985 without registering at the Aliens' Office or applying for a residence permit. In March 1986 she concluded, for the period running from 5 March to 3 November 1986, a contract of employment known as an "oproepcontract" ("on-call contract") under which she worked for 60 hours as a waitress in the period between 5 and 21 March 1986. On 1 August 1986 she began a full-time course of study in visual arts at the Gerrit Rietveld Academie in Amsterdam.
4 On 5 December 1986 the plaintiff submitted, pursuant to the WSF, an application for study finance to the Minister van Onderwijs en Wetenschappen. Her application was rejected for the period from October 1986 to December 1987 on the ground, in particular, that pursuant to the WSF she could not be treated as a Netherlands national because she did not possess a residence permit.
5 On 25 September 1987 the Minister rejected the plaintiff' s objection against that refusal, whereupon she appealed to the College van Beroep Studiefinanciering (a tribunal hearing disputes concerning the award of study finance pursuant to the WSF) against that rejection. In essence, the plaintiff contended before that court that her employment contract conferred upon her the status of worker within the meaning of Article 48 of the EEC Treaty and that consequently she was entitled to assistance granted to cover the costs of study and maintenance pursuant to Article 7(2) of Regulation (EEC) No 1612/68. In the alternative, she maintained that, at all events, she was entitled, pursuant to the general prohibition of discrimination set out in Article 7 of the EEC Treaty to that proportion of the study finance covering the enrolment and tuition fees.
6 Taking the view that the case before it raised questions relating to the interpretation of Community law, the College van Beroep Studiefinanciering stayed the proceedings pending a preliminary ruling by the Court on the following questions: "1. Does the nature of the activities of an 'oproepkracht' (' on-call worker' ) prevent such a person from being considered to be a worker within the meaning of Article 48 of the EEC Treaty? 2. Is the fact that a person has exercised or sought to exercise an economic activity for only a short time, for example in the framework of an 'oproepcontract' (' on-call contract' ), relevant to the answer to the question whether the activities are on such a small scale as to be regarded as purely marginal and ancillary so that the provisions on freedom of movement for workers do not apply? 3. In assessing whether a person is a worker within the meaning of Article 48 of the EEC Treaty, must account be taken of all the activities which the worker has pursued within the European Communities or solely of the activities most recently pursued in the host Member State? 4. May a migrant worker who (voluntarily or involuntarily) has given up his previous occupation in order to study to obtain new skills to further his career retain his status as a worker within the meaning of Article 7(2) of Regulation (EEC) No 1612/68, in spite of the fact that there is no link between his previous activities and the chosen course of study, and may he on that basis claim the same social advantages as those available to a worker with the same status who is a national of the host State? 5. Does the requirement that a migrant student have a residence permit in order to qualify for a system of allowances for the cost of studies in a situation in which no such requirement is imposed on students of the host State constitute discrimination prohibited under Article 7 of the EEC Treaty? 6. Does a national of a Member State who is admitted to vocational training in another Member State derive from the relevant provisions of Community law a right of residence in that other Member State in order to be able to undertake vocational training there? If so, may that person exercise the right of residence whether or not a residence permit has been issued by that other Member State? Is it possible for a residence permit to be granted by the national authorities of that other Member State subject to restrictive conditions as regards the purpose and duration of the stay and having sufficient resources to cover maintenance costs? 7. Does a system of study finance (such as the Netherlands WSF), in which no distinction is made between an allowance for the cost of access to the course and an allowance for maintenance costs, fall wholly or in part within the scope of the EEC Treaty (and in particular Articles 7 and 128 thereof)? If it falls within the scope thereof only in part, does the fact that the system of study finance does not make the aforesaid distinction mean that a national of another Member State who, for example, goes to undertake vocational training in the Netherlands should be granted the entire amount of the allowance towards the education contribution (as for example referred to in Article 12(1)(c) of the Netherlands WSF) or only (a proportionate part of) the amount to which the person concerned would otherwise have been entitled if the provisions of the WSF concerning the amount of study finance to be granted were applied to him in their entirety?"
7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. The concept of worker (first four questions)
8 By its first question, the national court is essentially asking, whether, taking account of the conditions of employment, a worker employed under an oproepcontract can be regarded as a worker within the meaning of Article 48 of the EEC Treaty.
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).
11 The answer to the first question must therefore be that a worker employed under an oproepcontract is not precluded by reason of his conditions of employment from being regarded as a worker within the meaning of Article 48 of the EEC Treaty.
12 By its second question, the national court wishes to know whether the fact that a person has exercised an economic activity for only a short period means that such activity is purely marginal and ancillary, with the result that the person exercising that activity cannot be regarded as a worker.
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.
15 The answer to the second question must therefore be that the duration of the activities pursued by the person concerned is a factor which may be taken into account by the national court when assessing whether those activities are effective and genuine or whether, on the contrary, they are on such a small scale as to be regarded as purely marginal and ancillary.
16 By its third question the national court wishes to know whether it must take account, when assessing whether the person concerned is a worker, of activities other than those most recently pursued in the host Member State.
17 With regard to the activities pursued in Member States other than the host State, it should be noted that the aim of Regulation (EEC) No 1612/68 is to facilitate freedom of movement for workers and, to this end, to ensure integration of workers in the host country. The status of migrant worker and, consequently, the right to equality of treatment with national workers, is acquired only through the occupational activities exercised in the host country.
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.
19 The answer to the third question must therefore be that in assessing whether a person is a worker, account should be taken of all the occupational activities which the person concerned has pursued within the territory of the host Member State but not the activities which he has pursued elsewhere in the Community.
20 By its fourth question the national court wishes to know whether a migrant worker can retain his status as a worker, and thus claim the advantages guaranteed by Article 7(2) of Regulation (EEC) No 1612/68, if he leaves his employment in order to pursue full-time studies in spite of the fact that there is no link between his previous activities and the chosen course of study.
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.
22 The answer to the fourth question must therefore be that a migrant worker who leaves his job and begins a course of full-time study which has no link with his previous occupational activities does not retain his status as a migrant worker for the purposes of Article 48 of the EEC Treaty, except in the case of a migrant worker who becomes involuntarily unemployed. The scope of Articles 7 and 128 of the EEC Treaty (the last three questions)
23 The national court has submitted the second group of questions in the event that the plaintiff in the main proceedings has not acquired or has not retained the status of worker. It is apparent from the documents before the Court that, in such an event, the plaintiff seeks to claim, in the alternative, that part of the financial assistance which is granted to cover enrolment and tuition fees. The questions need to be examined in the reverse order to that in which they have been submitted.
24 By its seventh question, the national court wishes to know whether the first paragraph of Article 7 of the EEC Treaty applies to a study finance system which makes no distinction between an allowance for the cost of access to the course and an allowance for maintenance costs.
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).
26 The Netherlands Government contends that the basic grant accorded pursuant to the WSF is in no way connected with the enrolment fee and the tuition fee payable in a given case. Any attempt to break down the basic grant according to the various cost elements would be artificial and alien to the philosophy of the WSF, which is to make a contribution towards the student' s maintenance costs and therefore constitutes an instrument of social policy, which falls within the competence of the Member States.
27 This argument cannot be upheld. As the Netherlands Government admits, the basic grant at issue is made up of various elements, including the cost of access to the course. The fact that the aim of that grant is to allow students to enjoy a large degree of financial independence does not prevent the part intended to cover enrolment and tuition fees from being considered as falling within the scope of the EEC Treaty.
28 Students from another Member State have a right to the same treatment as is accorded to students who are nationals of the host Member State, in so far as the assistance granted is intended to cover enrolment fees and other costs of access to the course, regardless of how such assistance is calculated or the underlying philosophy. It is for the national courts to determine what proportion of the financial assistance granted is intended to cover the costs of access to vocational training.
29 The answer to the seventh question must therefore be that the first paragraph of Article 7 of the EEC Treaty applies to financial assistance granted by a Member State to its own nationals in order to allow them to follow a course of vocational training in so far as that assistance is intended to cover the costs of access to the course.
30 By its sixth question the national court wishes to know whether a national of a Member State who is admitted to a course of vocational training in another Member State derives from Community law a right of entry and residence in that other Member State in order to pursue that vocational training.
31 This question has been submitted against the background of the case-law of the Court to the effect that the conditions of access to vocational training fall within the scope of the EEC Treaty and, consequently, the imposition on students who are nationals of other Member States of a pecuniary charge as a condition of access to vocational training, where the same fee is not imposed on national students, constitutes discrimination on grounds of nationality contrary to Article 7 of the EEC Treaty (see in particular the judgment in Case 293/83 Gravier v City of Liège [1985] ECR 593).
32 In this respect, the Netherlands Government, supported by the United Kingdom and the German Government, contended in essence that the judgment in Gravier referred only to enrolment and tuition fees and formed no basis for deducing from Articles 7 and 128 of the EEC Treaty that the formal admission of a national of a Member State to a vocational training course in another Member State automatically conferred on that person the right of residence in the latter Member State. The United Kingdom also maintained that where the EEC Treaty expressly conferred a right of residence, it made that right subject to certain conditions. Since an implicit right of residence conferred by Article 7 would not be subject to any express qualifications, it could, according to the United Kingdom, be deduced therefrom that that article confers no right of entry or residence.
33 The Commission, on the other hand, maintained that the right to be admitted to a course of vocational training on the same conditions as nationals would be illusory if the student enjoying that right was not also authorized to reside on the territory of the Member State where the vocational training is given. It deduced from this that the right of residence is a corollary to that right of admission.
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.
35 By the second part of its sixth question the national court wishes to know whether that right of residence can be exercised whether or not a residence permit has been issued.
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).
37 It follows that the right of entry and of residence which a student who is a national of a Member State derives from Community law cannot be made conditional on the granting of a residence permit.
38 By the third part of its sixth question the national court wishes to know whether, and to what extent, the host Member State may make the right of residence subject to restrictive conditions.
39 In this regard it must be noted that since the right of residence of a student who is a national of a Member State is merely a corollary to the right to non-discriminatory access to vocational training and that right of residence is therefore confined to what is necessary to allow the person concerned to pursue vocational training. Consequently, the right of residence can be limited in time to the duration of the studies pursued and granted only for the purpose of such studies. Furthermore, the right of residence can be made subject to conditions deriving from the legitimate interests of the Member State, such as the covering of maintenance costs and health insurance, to which the principle of non-discriminatory access to vocational training does not apply.
40 The answer to the sixth question must therefore be that a national of a Member State who has been admitted to a course of vocational training in another Member State derives from Community law a right to reside in that other Member State for the purpose of following that course and for the duration thereof. That right may be exercised whether or not the host Member State has issued a residence permit. The right of residence in question may nevertheless be made subject to certain conditions to which the principle of non-discriminatory access to vocational training does not apply.
41 By its fifth question the national court wishes to know whether the fact that a Member State requires a student, who is a national of another Member State, to have a residence permit in order to qualify for study finance, where no such requirement is imposed on national students, constitutes discrimination prohibited under Article 7 of the EEC Treaty.
42 In this respect it follows from the abovementioned judgments in Royer and Echternach and Moritz that, in so far as the person involved derives a right of residence from Community law, the residence permit does not create that right. Accordingly, Article 7 of the EEC Treaty precludes a claim for a financial contribution towards enrolment fees and other costs of access to vocational training which fall within the scope of the EEC Treaty from being made subject to possession of a residence permit.
43 The answer to the fifth question must therefore be that Article 7 of the EEC Treaty precludes a Member State from requiring a student who is a national of another Member State and enjoys, under Community law, a right to reside in the host Member State to possess a residence permit in order to qualify for study finance.