Sylvie Lair v. Universität Hannover (University of
Hanover)
(Case 39/86)
Before the Court of Justice of the European
Communities
ECJ
(Presiding, Mackenzie Stuart C.J.; Moitinho de Almeida
and Rodriguez Iglesias
PP.C.; Koopmans, Everling, Bahlmann, Galmot,
Kakouris, Joliet, O'Higgins and
Schockweiler JJ.) Sir Gordon Slynn, Advocate General.
21 June 1988
Reference from Germany by the Verwaltungsgericht Hannover (Administrative
Court, Hanover) under Article 177 EEC.
Education. Grants. Discrimination.
Unequal treatment based on nationality is to be regarded as discrimination
prohibited by Article 7 EEC if it falls within the scope of the Treaty. Conditions for
access to vocational training, including in general university studies, do so fall
and therefore are covered by Article 7. Grants and other forms of assistance are
included in this rule. However at the present stage of Community law, that only
applies to assistance intended to cover registration and other fees, in particular
tuition fees, charged for access to education, but not to maintenance and training
grants. [14]-[15]
Gravier v. City of Liege (293/83): [1985] E.C.R. 593, [1985] 3 C.M.L.R. 1, and
Blaizot v. University of Liege (24/86): [1989] 1 C.M.L.R. 57, explained and
restricted.
Education. Community law and national law.
Educational policy is not as such included in the spheres entrusted to the
Community institutions. [15]
Gravier v. City of Liege (293/83): [1985] E.C.R. 593, [1985] 3 C.M.L.R. 1,
affirmed.
Social policy. Community law and national law.
Social policy falls within the competence of the member-States in so far as it is
not covered by specific provisions of the EEC Treaty. [15]
*546 Re the Immigration of Non-Community Workers: Germany v. E.C.
Commission (281/85): [1987] E.C.R. 3202, [1988] 1 C.M.L.R. 11, affirmed.
Migrant workers. Social advantages.
A worker who is a national of another member-State and has exercised his right
as such to freedom of movement under Articles 48 and 49 EEC and Regulation
1612/68 is entitled in the same way as national workers to all the advantages
available to such workers for improving their job qualifications and promoting
their career advancement. [22]
Migrant workers. Education. Grants. Social advantage.
Grants for maintenance and training which is apppropriate for improving the
student's job qualifications and promoting her career advancement and which are
linked to the student's means and are thus dependent on social criteria constitute
a social advantage within the meaning of Article 7(2) of Regulation 1612/68. [23][24]
Migrant workers. Education. Vocational schools. Universities.
In order for an educational institution to be regarded as a vocational school for
the purposes of Article 7(3) of Regulation 1612/68 it is not sufficient that some
vocational training is provided. The institution must provide exclusively instruction
which either alternates with or is closely linked to an occupational activity,
particularly during apprenticeship. That is not true of universities, which
consequently are not vocational schools. [26]
Migrant workers. Education. Grants. Social advantage. Universities.
A grant awarded for maintenance and training with a view to the pursuit of
university studies leading to a professional (job) qualification constitutes a social
advantage within the meaning of Article 7(2) of Regulation 1612/68. [28]
Migrant workers. Education. Grants. Social advantage.
A national of a member-State who has undertaken university studies in the host
State leading to a job qualification, after having engaged in work activity in that
State, must be regarded as having retained her status as a worker and is entitled
as such to the benefit of Article 7(2) of Regulation 1612/68, provided [FN1] that
there is a link between the previous work activity and the studies in question. [39]
FN1 This proviso seems to contradict the express counter-proviso in paragraph
[37] where the Court says that the link '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' (as
was the case here).--Ed.
Migrant workers. Education. Social advantages.
*547 Member-States may not unilaterally make the grant of social advantages
under Article 7(2) of Regulation 1612/68 conditional upon the completion of a
given period of work within the territory. [42]
The Court interpreted Article 7 EEC and Article 7 of Regulation 1612/68 in the
context of a Frenchwoman who had lived in Germany since 1979, worked there
until mid-1981 whereupon she became unemployed and spent the next three
years either unemployed or retraining interspersed with brief periods of
employment until she began in October 1984 a university course in language and
literature leading to a vocational qualification, the university having refused to
award her a maintenance and training grant on the ground that as an alien she
had not worked for five years in Germany as required by the German legislation,
to the effect that Article 7 EEC only applied to assistance with registration and
other fees, including tuition fees, but excluding grants for maintenance and
training, that a Community worker is entitled to national treatment as regards
social advantages under Article 7 of Regulation 1612/68 aimed at improving job
qualifications and career advancement, that the German grant in issue
constituted such a social advantage, that the restrictive definition of a vocational
school in Article 7(3) of the regulation did not alter that conclusion, that the
plaintiff retained her status as worker while studying at the university, but that
(and here the Court appears to have made two mutually contradictory
statements) there must (or need not) be a link between the subject-matter of the
university course and her previous work in Germany, and that assuming that the
plaintiff was a 'Community worker' Germany was not entitled to subject her
enjoyment of the right to a grant to a five-year prior work rule which it did not
apply to German nationals.
Representation
H. Vogt, with him in the written proceedings Thomas Schröder, of the Hanover
Bar, for the plaintiff.
Prof. Manfred Zuleeg, of the University of Frankfurt, with him in the written
proceedings Dr. Martin Seidel, Ministerialrat at the Ministry of the Economy, for
the German Government as amicus curiae.
R.N. Ricks, H.R.L. Purse and David Donaldson Q.C. for the United Kingdom
Government as amicus curiae.
Laurids Mikaelsen, Legal Adviser in the Ministry of Foreign Affairs, for the Danish
Government as amicus curiae.
Jörn Pipkorn, Legal Adviser to the E.C. Commission, and Julian Currall, member
of the Legal Department, for the E.C. Commission as amicus curiae.
The following cases were referred to in the judgment:
1. Gravier v. City of Liege (293/83), 13 February 1985: [1985] E.C.R. 593, [1985]
3 C.M.L.R. 1. Gaz:293/83 *548 .
2. Blaizot v. University of Liege (24/86), 2 February 1988: [1989] 1 C.M.L.R. 57.
Gaz:24/86
3. Re the Immigration of Non-Community Workers: Germany v. E.C. Commission
(281/85, 283-285/85, 287/85), 9 July 1987: [1987] E.C.R. 3202, [1988] 1
C.M.L.R. 11. Gaz:281/85
4. Hoeckx v. Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout
(249/83), 27 March 1985: [1985] E.C.R. 973, [1987] 3 C.M.L.R. 633. Gaz:249/83
5. Scrivner v. Centre Public D'Aide Sociale de Chastre (122/84), 27 March 1985:
[1985] E.C.R. 1027, [1987] 3 C.M.L.R. 638. Gaz:122/84
6. Levin v. Staatssecretaris Van Justitie (53/81), 23 March 1982: [1982] E.C.R.
1035, [1982] 2 C.M.L.R. 454. Gaz:53/81
7. Kempf v. Staatssecretaris Van Justitie (139/85), 3 June 1986: [1986] E.C.R.
741, [1987] 1 C.M.L.R. 764. Gaz:139/85
8. Hoekstra v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten
(75/63), 19 March 1964: [1964] E.C.R. 177, [1964] C.M.L.R. 319. Gaz:75/63
9. Frascogna v. Caisse des Depots et Consignations (157/84), 6 June 1985:
[1985] E.C.R. 1739. Gaz:157/84
The following further cases were referred to by the Advocate General:
10. Centre Public v. Lebon (316/85), 18 June 1987: [1987] E.C.R. 2811, [1989] 1
C.M.L.R. 337. Gaz:316/86
11. Lawrie-Blum v. Land Baden-Württemberg (66/85), 3 July 1986: [1986] E.C.R.
2121, [1987] 3 C.M.L.R. 389. Gaz:66/85
12. Cristini v. S.N.C.F. (32/75), 30 September 1975: [1975] E.C.R. 1085, [1976] 1
C.M.L.R. 573. Gaz:32/75
13. Casagrande v. Landeshauptstadt München (9/74), 3 July 1974: [1974] E.C.R.
773, [1974] 2 C.M.L.R. 423. Gaz:9/74
14. Alaimo v. Prefet du Rhone (68/74), 29 January 1975: [1975] E.C.R. 109,
[1975] 1 C.M.L.R. 262. Gaz:68/74
15. Re University Fees: E.C. Commission v. Belgium (293/85) 2 February 1988:
[1989] 2 C.M.L.R. 527. Gaz:293/85
16. Brown v. Secretary of State for Education (197/86), 21 June 1988: [1988] 3
C.M.L.R. 403. Gaz:197/86
17. Castelli v. Office National des Pensions pour Travailleurs Salaries (261/83),
11 July 1984: [1984] E.C.R. 3199, [1987] 1 C.M.L.R. 465. Gaz:261/83
18. Reina v. Landeskreditbank Baden-Württemberg (65/81), 14 January 1982:
[1982] E.C.R. 33, [1982] 1 C.M.L.R. 747. Gaz:65/81
19. Michel S. v. Fonds National de Reclassement Social des Handicapes
(76/72), 11 April 1976: [1973] E.C.R. 457. Gaz:76/72 *549
The following additional cases were referred to in argument:
20. Macmahon v. Department of Education and Science (Chancery Division), 16
July 1982: [1982] 3 C.M.L.R. 91, [1982] 3 W.L.R. 1129. Gaz:GB820716
21. Ministere Public v. Mutsch (137/84), 11 July 1985; [1985] E.C.R. 2681, [1986]
1 C.M.L.R. 648. Gaz:137/84
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
Opinion of the Advocate General (Sir Gordon Slynn)
Mrs. Lair, the plaintiff in the national proceedings, is a French national. She has
lived in Germany since at least 1979. She was employed there by the Deutsche
Bank for two and a half years from 1 January 1979 to 30 June 1981. She then
received State unemployment benefit from 1 July 1981 to 31 October 1982
(following a restraining course between 1 September 1981 to 31 August 1982),
was employed for the month of November 1982, unemployed and receiving State
benefit from 1 December 1982 to 20 April 1983, employed for three months and
then again unemployed and in receipt of benefit from 2 August 1983 to 30
September 1984.
She then began a degree course in Romance and Teutonic languages and
literature at the University of Hanover. She had applied for an education grant
which was refused by a decision of 18 September 1984. Her objection to that
refusal was dismissed by the University on 19 October 1984 on the grounds that
foreigners could only be given education grants if they had been engaged in fulltime employment in the Federal Republic for at least five years and had therefore
paid tax and social security contributions. Periods of unemployment could not be
taken into account.
The requirement of five years regular employment for foreigners resident in
Germany is imposed by section 8(2) of the Federal Act on Training Grants.
Section 8(1) of the same Act authorises such grants for, inter alios, children who,
as children of nationals of member-States, are entitled to freedom of movement
or to reside in the Federal Republic. Those children's parents have to have
worked for only three years including periods of unemployment.
Mrs. Lair challenged the University's refusal in the Verwaltungsgericht
(administrative court) at Hanover, claiming that periods of retraining and
unemployment during which she was entitled to unemployment benefit must be
regarded as the equivalent of periods of employment in calculating the relevant
five years. She *550 says further that since persons whose parents have worked
in the Federal Republic for three years, including periods of unemployment, are
entitled to grants, it is discriminatory (semble between non-nationals) contrary to
Article 7 EEC to refuse her a grant unless she has been employed for five years.
She also claims that education grants are a social advantage within the meaning
of Article 7(2) of Regulation 1612/68.
The Hanover court, from which this reference under Article 177 comes,
considered that the German legislation must be interpreted as requiring five
years actual paid employment, since it was clearly the legislator's intention to
make education grants available only to foreigners who had contributed by their
own work to the gross national product and thus to the social fund out of which
the grants are financed. It also considered that the distinction drawn in German
law between students relying on their own work experience in Germany and
those who relied on their parents' employment does not constitute unequal
treatment prohibited by the German Grundgesetz (Constitution). It had doubts,
however, as to whether it was necessary for a person claiming benefits under
Article 7(2) of Regulation 1612/68 to continue in the status of a worker and
whether the rule of five years' employment was contrary to Article 7 EEC. It
found 'open to objection' the argument advanced by the University that 'the
taxpayer principle' required that only a person who had contributed to the gross
national product should be entitled to grants. It stressed the nexus between
worker status and entitlement to social advantages under Regulation 1612/68
and the relationship between paragraphs (2) and (3) of Article 7 of that
regulation. Accordingly it felt that it required the guidance of the Court in deciding
whether Articles 48 and 49 of the Treaty and Article 7 of Regulation 1612/68
entitled the plaintiff to a grant or, if not, whether the failure to award her a grant
constituted discrimination contrary to Article 7 of the Treaty.
The following questions are therefore now before the Court:
1. Does Community law entitle nationals of member-States of the European
Community who go to take up employment in other member-States then, after
giving up their employment, commence a higher education course leading to a
job qualification (in this case, a course in Romance languages and German) to
claim an education grant on the same criteria of aptitude and need as that social
advantage is accorded to nationals of the host member-State?
2. Does the fact that a member-State accords grants for higher education
courses leading to job qualifications to its own nationals on the basis of aptitude
and need but accords the same grant to nationals of other member-States only if
they can also show that they have been employed in the host member-State for
at least five years before the start of the course concerned constitute
discrimination contrary to Article 7 of the EEC Treaty?
*551 Article 7 of Regulation 1612/68 reads as follows (as far as is relevant):
1. A worker who is a national of a member-State may not, in the territory of
another member-State, be treated differently from national workers by reason of
his nationality in respect of any conditions of employment and work, in particular
as regards remuneration, dismissal, and should he become unemployed,
reinstatement or re-employment.
2. He shall enjoy the same social and tax advantages as national workers.
3. He shall also, by virtue of the same right and under the same conditions as
national workers, have access to training in vocational schools and retraining
centres.
It appears that no fees are payable in respect of Mrs. Lair's course. The '
education grant' which she seeks is intended solely for her maintenance and
takes the form of a loan repayable within a certain number of years after the end
of the course.
As to the first question, it is to be noted that Regulation 1612/68 is concerned
with 'freedom of movement of workers' within the Community. To claim the rights
conferred by Article 7 she must thus show that she does so as 'a worker'. The
Court has recently underlined this in Case 316/85 Centre Public v. Lebon [FN2]
in holding that a person seeking work and the children of a worker do not have
rights under Article 7.
FN2 [1987] E.C.R. 2811, [1989] 1 C.M.L.R. 337.
It is clear law, however, that 'worker' must be interpreted as a matter of
Community law: the concept does not vary from member-State to member-State
and cannot be restricted by national measures: Case 75/63 Hoekstra v. Bestuur
der Bedrijfsvereniging voor Detailhandel en Ambachten. [FN3] Even though the
rules on freedom of movement of workers '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' and 'guarantee only the free
movement of persons who pursue or are desirous of pursuing an economic
activity' the concept of 'worker' must be broadly construed: Case 53/81 Levin v.
Staatssecretaris Van Justitie. [FN4] In Case 66/85, Lawrie-Blum v. Land BadenWürttemberg [FN5] the Court specified that the essential characteristic as to
whether a person is a worker is that during a certain period of time he performs
services for and under the direction of another in return for remuneration.
FN3 [1964] E.C.R. 177, [1964] C.M.L.R. 319.
FN4 [1982] E.C.R. 1035 At 1050, [1982] 2 C.M.L.R. 454 at 468.
FN5 [1986] E.C.R. 2121, [1987] 3 C.M.L.R. 389.
All the indicia in this case are that the applicant exercised her right to move to
Germany under Article 48 of the Treaty as a worker; during the periods of her
employment and for the purposes of Regulation 1612/68 during her periods of
unemployment, which *552 as far as is known were involuntary, and retraining
when she received unemployment benefit, she was 'a worker'. She thus at this
period was entitled to exercise the rights given by that regulation unless it is
justified to impose a limit of five years' employment before she can qualify as a
worker.
Whether five years can be justified as an absolute yardstick in deciding whether
a person really is a worker for the purposes of the regulation is discussed in the
reference and has been much debated in these proceedings. It is convenient to
deal with this argument first before turning specifically to the terms of Article 7(2)
and Article 7(3).
For the purpose of the rights given by Article 48, clearly no qualifying period can
be prescribed. The right to move to another member-State to work postulates
that the individual is not there in the first place. Leaving aside the issue whether a
person has a right to move to look for work, the question under Article 48(3)(a)
and (b) is whether he has accepted an offer of employment. If he has, the right
vests immediately, subject of course to the prescribed limitations as to such
matters as public security. He does not have to serve a period in order to qualify
as a worker.
Under the regulation the position is different. It is not enough to show that a
person has accepted an offer of employment. He must be a worker in the
member-State in question.
That seems to me to involve that he must have exercised his right to move to
take up employment and be in the host State in the capacity of a worker as well
as doing a genuine and effective job (Levin) which satisfies the necessary
characteristics of an employment relationship (Lawrie-Blum). If he is there as
such a worker the collateral intentions behind his going (e.g. that he wants his
wife and children to be in a particularly agreeable area or near to a particular
educational institution) are irrelevant. But if he goes there not genuinely in the
capacity of a worker but e.g. in order to become a student or to gain a short,
useful experience before his studies begin, then it does not seem to me that he is
to be regarded as a worker for the purposes of Article 7(2) and (3) of the
regulation, even if during that period he is doing genuine and effective work
which satisfies the test in Lawrie-Blum. Rights under those provisions are given
only to persons in a member-State genuinely in the capacity of a worker.
Once it is clear that he is a genuine worker no period of employment can be
prescribed to limit his rights under the regulation. In its judgments in Cases
249/83Hoeckx v. Openbaar Centrum voor Maatschappelijk Welzijn [FN6] and
122/84 Scrivner v. Centre Public D'Aide Sociale de Chastre, [FN7] the Court held
that it was not possible to prescribe a minimum period of residence *553 before a
person can be entitled to the particular social advantages in issue. However, in
both those cases it is clear that the persons concerned were migrant workers and
they are described as such. If the issue, however, is whether a person is a
worker, different questions arise. In my view it can be relevant to have regard to
the length of the period a person has been in a member-State as well as to what
he has been doing in order to decide whether he is there in the capacity of a
genuine worker.
FN6 [1985] E.C.R. 973, [1987] 3 C.M.L.R. 633.
FN7 [1985] E.C.R. 1027, [1987] 3 C.M.L.R. 638.
If, as a matter of the practical application of the regulation, it is right to take a
specified test period as a guideline (as I think it is) to see whether a person is a
worker, then it seems to me that it cannot reasonably exceed one year. On any
view a period of five years to prove that a person is there genuinely in the
capacity of a worker cannot be justified. If, however, it is clear that even before
that period (and this may well be the exceptional case) a person moved to work
and became a genuine worker, and then decided to undertake vocational
training, he has the rights conferred by Article 7(3). If it is not clear, then a period
of a year seems to me to be a reasonable prerequisite in order to decide the
question whether he is a worker for the purposes of Article 7.
It is obvious that even a year is not necessarily a watertight test since the
potential student may not be deterred by a year's activity. On the other hand,
some limit has to be imposed which does not unduly protract the undertaking of
vocational training at the right stage. As a working rule a year is acceptable
unless as already indicated it is clear even before that period that a person is
there as a genuine worker.
It is also obvious that this approach will produce difficult cases; that is no novelty
either for national administrations or courts. Until in relation to maintenance
grants there is either a system of reciprocity between member-States or
agreement that each member-State maintains its own students when working in
another member-State, difficulties seem to be inevitable.
I do not find it possible to accept that working for however short a period is
necessarily sufficient to give rights to a maintenance grant under Article 7. It is
unacceptable that the person who honestly says, 'I am going as a student' should
get no maintenance grant under the regulation, whereas the person who gets a
job for a day, or a week or a month, in order essentially to be in the memberState to study should be able to say on day one or day seven or day thirty-one; 'I
am now a worker; pay me a grant under Article 7'.
On the facts of the case it seems clear, and as I read the reference the national
court was satisfied, that the applicant went to and was in the Federal Republic in
the capacity of a genuine worker economically integrated into the host State. To
require her to prove work for five years when, as far as is known, she was *554
involuntarily unemployed during a large part of the eight years during which she
has resided in Germany seems to me to be a restriction of her rights to claim to
be a worker and to claim the benefits of Article 7 which cannot be justified.
It is said, however, by the German Government, supported by the Danish
Government, which have both submitted observations, that when she became a
student the applicant ceased to be a worker so that at any rate during her period
as a student she no longer had any rights under the regulation. In reply to the
argument that the Court's case law extends the benefit of Article 7 of the
regulation to former workers and to the families of former or deceased workers
(e.g. Case 32/75 Cristini v. S.N.C.F. [FN8]) it is said that such indirect benefits
are granted by reference to the former worker's status as a worker.
FN8 [1975] E.C.R. 1085, [1976] 1 C.M.L.R. 573.
Although it may well be that certain rights conferred by the regulation are not
available to someone who is a student, whilst a student, it does not follow that a
person who as a worker opts to become a full-time student has no rights under
the regulation. It depends on the nature of the right conferred.
Atlhough the question does not specifically reflect the wording of Article 7(3) of
the regulation, it is convenient to begin with that paragraph because it is
discussed in the order for reference in relation to Article 7(2) and also because if
Article 7(3), the more specific provision, applies the applicant does not need or
may not be able to rely on Article 7(2).
The right under Article 7(3) in the English text is the right under the same
conditions as national workers to 'access to training in vocational training schools
and retraining centres'. It is, however, to be noted that, in the other language
texts, this reference to access apparently does not appear. Thus, the French text
reads: 'il bénéficie également au même titre et dans les mêmes conditions que
les travailleurs nationaux, de l'enseignement des écoles professionelles et des
centres de réadaptation ou de rééducation'. The German text similarly reads 'Er
kann mit gleichen Recht und unter den gleichen Bedingungen wie die
inländischen Arbeitnehmer Berufsschulen und Umschulungszentren in Anspruch
nemen.'
It seems to me plain that such right, whether of access or training, is given to the
worker. He can exercise it, and he is entitled to the full benefit of it, even if it
means that during the period of training he ceases to work. To say that he can
exercise the right by going to a vocational training school but that, the moment he
does so, he loses all the benefits conferred on national workers deprives the
provision of all content, indeed of all sense. It follows that if the worker goes to a
vocational training school he is entitled to the same treatment as a national
worker who, it *555 seems, for the purposes of the provision does not cease to
be a worker when he becomes a student and who does receive the educational
grant in issue in this case.
I cannot for my part see that Article 7(3) is limited to workers who do a part-time
course as students and who, it is accepted, will be entitled to claim as workers. If
their work is full-time they may not need a maintenance grant. It is essentially the
student who undertakes a full-time course who needs a grant.
It is, however, sought to qualify any right given on the basis that it only applies
where the course undertaken is connected with the work previously done. I do
not find this limitation in Article 7(3) either expressly or impliedly in relation to
training in vocational schools. Such a limitation as is suggested in my view
conflicts with the aim of the regulation which is directed to the mobility of labour
on equal terms and which recognises the 'close links' which exist between
freedom of movement for workers, employment and vocational training.
Although the reasoning said to lie behind the refusal (that only those who
contribute to the gross national product and pay taxes for five years should
benefit) is understandable, it seems to me, as appears to have been the opinion
of the administrative court, that it is not a factor which can be brought into the
equation. Rights are given to workers as such and not by reference to their
contribution to the gross national product. Moreover, to adopt five years as a
condition because most university courses last five years seems to me to be an
unjustified restriction on the right conferred by Article 7(3). It seems very unlikely
that most workers would in any event pay the amount of the grant by way of
social contributions during that time. On the other side, taken to its logical
conclusion, this argument is capable of leading to a suggestion that what
students should receive by way of a grant should be related to what they have
contributed to the social fund from which the grants are made. I would not accept
this argument.
Nor do I think that the provisions of Article 7(3) are limited merely to the right to
attend a course shorn of any rights to a grant. If one of the conditions under
which a national worker can attend such a course is that he obtains a grant, then
a grant is one of the conditions available to the worker from another memberState. This approach seems to me to be entirely consistent with the Court's
decisions under Article 12 of the regulation, which gives a right to children of a
national of one member-State employed, or who has been employed, in another
member-State to be 'admitted to that State's general educational, apprenticeship
and vocational training courses under the same conditions as the nationals of
that State. ...' In Case 9/74 Casagrande v. Landeshauptstadt München [FN9] the
Court held that this applied 'not only to rules *556 relating to admission but also
to general measures intended to facilitate educational attendance' which in that
case covered means-tested educational grants in respect of children of national
workers. Case 68/74 Alaimo v. Préfet du Rhône [FN10] is to the same effect:
Article 12 covers ' all the rights arising from admission to educational courses'
given to a national's children. 'Under the same conditions' appears in both Article
12 and Article 7(3) and in my view should cover grants equally in both places.
FN9 [1974] E.C.R. 773, [1974] 2 C.M.L.R. 423.
FN10 [1975] E.C.R. 109, [1975] 1 C.M.L.R. 262.
The question is thus whether the training sought here is in a vocational training
school. I have come to the conclusion that 'vocational training' can take place in a
university (my Opinions in Cases 293/85 E.C. Commission v. Belgium [FN11]
and 24/86 Blaizot v. University of Liège) [FN12]. In Brown [FN13] both Germany
and Denmark appear to accept this. If that is right a university in my view is pro
tanto a vocational training school and I see no valid reason to apply Article 7(3)
to only some institutions of education where vocational training is given. There is
no magic in the word ' school': within a university the word is not uncommonly
found as being a part of the university as in 'law school' or 'medical school'.
FN11 [1989] 2 C.M.L.R. 527.
FN12 [1989] 1 C.M.L.R. 57.
FN13 [1988] 3 C.M.L.R. 403.
Whether the training is vocational training depends on the Court's test in Gravier
as subsequently to be considered in Case 293/85 Belgium. The questions
referred speak of a 'higher education course leading to a job qualification', in this
case a course in Romance languages and German. I read that as meaning that
the national court was satisfied that the course was vocational training, not least
since otherwise the references to Article 7(3) of the regulation and to Articles 7
and 128 of the Treaty and to Gravier are difficult to understand. If that is right
then it seems to me on the facts stated in the order for reference that a worker
who takes up such a course of vocational training is entitled to the benefit of
Article 7(3), i.e. to a grant under the same terms as national workers. If the
referring court has not already decided that matter, it will need to decide whether
this was vocational training in the light of Gravier and Belgium.
Article 7(2) confers the right to enjoy the same social advantages as national
workers. The Court has in a number of cases construed such advantages as
being those available to national workers by reason of their objective status as
workers or by the mere fact that they are residents in their national State and
whether or not such advantages are directly related to the contract of
employment (e.g. Case 261/83 Castelli v. Office National des Pensions pour
Travailleurs Salaries). [FN14] The question is therefore whether if a *557 national
worker of one member-State goes to take up employment in another memberState and then begins a higher education course leading to a job qualification he
can claim an educational grant as a social advantage on the same terms as the
nationals of that State.
FN14 [1984] E.C.R. 3199, [1987] 1 C.M.L.R. 465.
The United Kingdom contends not, since lex specialis derogat legi generali.
Article 7(3) covers the relevant ground and excludes the application of Article
7(2). If it were not so, it is said, there would be duplication. The United Kingdom
also stresses the word 'also' in Article 7(3) which, it is said, shows that training in
a vocational school (and therefore presumably education in general) is quite
separate from the social advantages referred to in Article 7(2).
I do not accept this argument although I recognise its force. In the first place the
Court has given a broad meaning to 'social advantage' as I have no doubt the
regulation intended. Thus in Case 65/81 Reina v. Landeskreditbank BadenWürttemberg, [FN15] which covered childbirth loans to national workers on
demographic grounds, the Court accepted that 'the concept of social advantage
referred to in Article 7(2) of the regulation encompasses not only the benefits
accorded by virtue of a right but also those granted on a discretionary basis.'
Those benefits are obviously not limited to cash payments but they include them.
Similarly, as already shown, Article 12 has been given a wide construction
(Casagrande). It seems to me that educational grants generally are perfectly
capable of falling within 'social advantages' for workers without giving a
particularly wide meaning to that term.
FN15 [1982] E.C.R. 33, [1982] 1 C.M.L.R. 747.
Is Article 7(2) cut down by Article 7(3)?
Article 7(3) is limited to training in vocational schools. There remain other kinds of
education, in particular general education. If Article 7(3) is to be treated as
dealing exclusively with training in vocational schools then other educational
grants fall within Article 7(2). Equally, if the proper construction of Article 7(3) is
that, contrary to my view, it applies only to fees or the right to attend, then it
seems to me that educational grants for workers at vocational training schools
fall within Article 7(2) as do general education grants.
The word 'also' in Article 7(3), 'également' in the French text, does not seem to
me to exclude this result. It might well have been thought that it was arguable
that, although general education is a 'social' advantage, vocational training is an
'employment' advantage, so that it was necessary to protect against the latter
being by interpretation excluded from Article 7(2) by providing specifically for it in
Article 7(3).
In this context it is not relevant that the national legislation in question covers a
class of nationals as a whole and is not confined *558 to national workers or their
children (Case 76/72 Michel S. v. Fonds National de Reclassement Social des
Handicapés. [FN16]
FN16 [1973] E.C.R. 457 at 464.
Accordingly, under either Article 7(3) if her course is training in a vocational
school or under Article 7(2) if it is general education, the applicant is entitled to
be treated in the same way as national workers in so far as education grants are
concerned.
It is argued that this conclusion cannot be right because educational and social
policy remains within the sole control of member-States and the Community
cannot interfere.
It is true that member-States are left to pursue such policies. The Court,
however, has made it abundantly clear that they must be pursued in such a way
as not to conflict with Community provisions. Thus in Casagrande the Court said
[FN17]: 'Although educational and training policy is not as such included in the
spheres which the Treaty has entrusted to the Community institutions, it does not
follow that the exercise of powers transferred to the Community is in some way
limited if it is of such a nature to affect the measures taken in the execution of
such a policy as that of education and training'. Again in Reina, where
demographic policy was relied on and a member-State's freedom to deal with it
accepted, the Court said [FN18]: 'this does not mean, however, that the
Community exceeds the limits of its jurisdiction solely because the exercise of its
jurisdiction affects measures adopted in pursuance of that policy'. Accordingly
childbirth loans were not to be treated as excluded from the ambit of Article 7(2)
'solely because they are granted for reasons of demographic policy'.
FN17 At para. [12].
FN18 At para. [15].
Reliance was placed by the German Government on Regulation 1251/70. It is
said that such a regulation does not confer upon students a right to remain in the
territory of a member-State after having been employed in that State. Accordingly
they cannot claim any rights as workers to stay and undertake studies. I do not
find that regulation helpful. It seems to me to be dealing with specific situations
where, for example, a worker has reached retirement age or has become
incapacitated and is permanently giving up work or where he works in another
member-State whilst keeping his residence in the State in which he previously
worked and to which he returns once a month. The absence of students from
such a regulation does not seem to me to bear upon the questions in this case.
Does the applicant have an additional right under Article 7 of the Treaty to this
kind of grant? Such a right can only exist if the principle stated in Gravier applies
to maintenance grants for vocational training. In my view, it does not, for the
reasons given in my Opinion in Brown. Though having in other cases taken the
*559 opposite view, in Brown the Commission, it seems to me, was accepting
this position. A fortiori Article 7 does not apply to grants for non-vocational
education.
Accordingly, in my view the questions referred fall to be answered on the
following lines:
A national of one member-State who moves to another member-State and takes
up employment in the capacity of a worker is entitled to an award of an
educational grant for maintenance subject to the same criteria and on the same
terms as national workers (a) in respect of general education as a social
advantage under Article 7(2) of Regulation 1612/68: (b) in respect of training in
vocational schools under Article 7(3) of that regulation.
The plaintiff's costs fall to be dealt with by the national court. The costs of the
member-States which have submitted observations and of the Commission are
not recoverable.
JUDGMENT
[1] By an order of 19 November 1985, which was received at the Court on 12
February 1986, the Verwaltungsgericht Hannover referred to the Court for a
preliminary ruling under Article 177 EEC two questions relating in particular to the
interpretation of Article 7 EEC and Article 7 of Council Regulation 1612/68 on
freedom of movement for workers within the Community.
[2] Those questions arose in proceedings brought by Mrs. Lair, the plaintiff in the
main proceedings (hereinafter referred to as 'the plaintiff'), contesting the refusal
by the University of Hanover, the defendant in the main proceedings (hereinafter
'the University'), to award her a maintenance and training grant for the pursuit of
her university studies.
[3] It is apparent from the documents before the Court that the plaintiff is a
French national and has been resident since 1 January 1979 in the Federal
Republic of Germany, where she worked as a bank clerk until 30 June 1981.
Between 1 July 1981 and 30 September 1984, she went through alternate
periods of unemployment and retraining, interspersed with brief periods of
employment, the last of which came to an end on 21 July 1983. Since 1 October
1984, she has been studying Romance and Germanic languages and literature
at the University. It has not been disputed in the main proceedings that that
course of study leads to a professional qualification.
[4] Under section 8 of the German Act on grants for training and further education
(Bundesausbildungsförderungsgesetz--hereinafter referred to as 'the Act on
training grants') as published on 6 June *560 1983 [FN19] and subsequently
amended, assistance for training, including university study, may be awarded not
only to German nationals but also to certain categories of foreigners, inter alia
those who have resided and been engaged in regular work [FN20] in the Federal
Republic for a total period of five years prior to the commencement of the part of
the training course for which assistance is available; there is no requirement of
previous work where German nationals are concerned.
FN19 [1983] I Bgb1. 645, Corrigendum p. 1680.
FN20 'ctivit1e Professionnelle' in the French. The Court translator has used the
phrase 'occupational activity', but that is gobbledygook. What it means is activity
as an employee or self-employed i.e. paid for as part of one's income, but not
voluntary or as a hobby, i.e. not paid for. For this the English word ' work', albeit it
can be ambiguous, is a perfectly proper translation which, moreover, is the
normally used expression. We propose to use it in future.--Ed.
[5] Under section 1 of the Act on training grants, applicants are entitled to such a
grant where they have no other means of supporting themselves and financing
their training. Grants are awarded, inter alia, for training 'for the purpose of
acquiring a professional qualification' until its conclusion by the award of a
diploma (see section 7 of the Act). They are made for ' maintenance and training'
and their amount is fixed at a flat rate for various categories of beneficiary in
sections 12 to 14b, no distinction being made between what is required for
maintenance and for training. Under section 17 of the Act, in the case of
university study assistance is awarded in the form of interest-free loans to be
reimbursed in instalments beginning five years after the end of the maximum
duration of the training in respect of which they were made. Under section 10(3)
of the Act, as a rule no grants are made to applicants who are aged 30 or over at
the beginning of the part of the training course for which aid is available.
[6] The grant for which the plaintiff applied was refused by the University on the
ground that she did not fulfil the condition for the award of assistance to
foreigners inasmuch as she had not been engaged in work in the Federal
Republic of Germany for at least five years. The University considered that only
periods during which a foreigner is engaged in work and in that capacity pays
taxes and social security contributions, which are ultimately what enable the
Federal Republic of Germany to make social investments such as maintenance
and training grants, can be regarded as periods of work for the purposes of
section 8 of the Act.
[7] The national court, to which the plaintiff appealed against that decision, is
uncertain whether she may claim assistance under section 8 of the Act in
conjunction with Articles 48 and 49 of the EEC Treaty and Article 7 of Regulation
1612/68 or, if not, whether refusal of such a grant constitutes a breach of the
prohibition of discrimination contained in Article 7(1) EEC.
*561 [8] The national court therefore referred the following questions to the Court:
1. Does Community law entitle nationals of member-States of the European
Community who take up employment in another member-State and there, after
giving up their employment, commence a course of higher education leading to a
professional qualification (in this case, a university course in Romance and
Germanic languages and literature) to claim a training grant on the same basis of
aptitude and need as that social advantage is accorded to nationals of the host
member-State?
2. Does the fact that a member-State accords grants for higher education leading
to vocational qualifications to its own nationals on the basis of aptitude and need
but accords the same grant to nationals of other member-States only if they have
worked in the host member-State for at least five years before the start of the
course concerned constitute discrimination contrary to Article 7 of the EEC
Treaty?
[9] Reference is made to the Report for the Hearing for a fuller account of the
relevant legal provisions and the background to the main proceedings and of the
observations submitted to the Court, which are mentioned hereinafter only as far
as is necessary for the reasoning of the Court.
[10] The national court's second question, which raises the general problem
whether a student is entitled, by reason solely of being a national of another
member-State, to such a grant, should be examined first.
Interpretation of Article 7 of the EEC Treaty (the second question)
[11] This question seeks in essence to determine whether the first paragraph of
Article 7 EEC applies to grants for maintenance and training made by a
member-State to its nationals for the purpose of university studies.
[12] It should be pointed out first of all that in Case 293/83, Gravier v. City of
Liège, [FN21] the Court held that unequal treatment based on nationality is to be
regarded as discrimination prohibited by Article 7 of the Treaty if it falls within the
scope of the Treaty and that conditions for access to vocational training do fall
within its scope. Case 24/86, Blaizot v. University of Liège, [FN22] the Court
further ruled that, in general, university studies fulfil the conditions required in
order to be regarded as vocational training for the purposes of the EEC Treaty.
FN21 [1985] E.C.R. 593.
FN22 [1989] 1 C.M.L.R. 57.
[13] On the other hand, the Court did not have occasion to express a view in
those judgments as to whether a national of another member-State is entitled,
when undertaking such studies, to assistance given by a member-State to its
own nationals.
*562 [14] It is only to the extent to which assistance of that kind is intended to
cover registration and other fees, in particular tuition fees, charged for access to
education that by virtue of the judgment in Gravier it falls, as relating to
conditions of access to vocational training, within the scope of the EEC Treaty
and that, consequently, the prohibition of discrimination on grounds of nationality
laid down by Article 7 EEC is applicable.
[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 (cf.
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 in Joined Cases 281, 283, 285
and 287/85, Germany and Others v. E.C. Commission-- migration policy). [FN23]
FN23 [1987] E.C.R. 3203, [1988] 1 C.M.L.R. 11.
[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 EEC
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 1612/68 (the first question)
[17] The first question, relating to the interpretation of Article 7 of Regulation
1612/68, comprises three distinct branches involving, respectively, the following
questions:
Whether maintenance and training grants awarded for university studies leading
to a professional qualification constitute a 'social advantage' within the meaning
of Article 7(2) of Regulation 1612/68.
Whether a national of another member-State who undertakes university studies
in the host State after having engaged in occupational activity in that State is to
be regarded as having retained his status as a 'worker' and is entitled in that
capacity to the benefit of Article 7(2) of Regulation 1612/68.
Finally, whether a host member-State may make the right to the 'same social
advantages' provided for in Article 7(2) of Regulation 1612/68 conditional upon a
minimum period of prior occupational activity within its territory.
*563 The concept of social advantage
[18] In order to define the concept of social advantage within the meaning of
Article 7(2) of Regulation 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.
[19] A worker who is a national of a member-State and who has exercised that
fundamental freedom is, under Article 7(2) of Regulation 1612/68, to enjoy 'the
same social ... advantages as national workers' in the host member-State.
[20] In addition to the specific right mentioned in Article 7(1) of that regulation not
to be treated differently from national workers in respect of any conditions of
employment and work, in particular as regards reinstatement or re-employment,
'social advantages' include all other advantages by means of which the migrant
worker is guaranteed, in the words of the third recital in the preamble to the
regulation, the possibility of improving his living and working conditions and
promoting his social advancement.
[21] In that connection the Court has ruled that it follows from Regulation 1612/68
as a whole and from the objective pursued that the advantages which that
regulation extends to workers who are nationals of other member-States are all
those which, whether or not linked to a contract of employment, are generally
granted to national workers primarily because of their status as workers or by
virtue of the mere fact of their residence on the national territory and whose
extension to workers who are nationals of other member-States therefore seems
likely to facilitate the mobility of such workers within the Community: Case
249/83, Hoeckx v. Openbaar Centrum voor Maatschappelijk Welzijn, Kalmthout,
[FN24] and Case 122/84, Scrivner v. Centre Public D'Aide Sociale de Chastre.
[FN25]
FN24 [1985] E.C.R. 973, [1987] 3 C.M.L.R. 633.
FN25 [1985] E.C.R. 1027, [1987] 3 C.M.L.R. 638.
[22] It follows that a worker who is a national of another member-State and has
exercised his right as such to freedom of movement is entitled in the same way
as national workers to all the advantages available to such workers for improving
their professional [FN26] qualifications and promoting their social [FN27]
advancement.
FN26 This does not mean 'professional' but rather 'vocational' or 'career'. ' Job
qualifications' expresses the meaning better.--Ed.
FN27 This does not mean 'social advancement' in the usual English sense of
acquiring greater social status. Again it means 'career' advancement.--Ed.
[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 *564 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 job qualifications and promoting his career 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 1612/68.
[25] It was argued before the Court that the application of Article 7(2) of
Regulation 1612/68 was precluded by Article 7(3) of the same regulation by
virtue of the specific content of the latter, which provides that a worker who is a
national of a member-State 'shall also, by virtue of the same right and under the
same conditions as national workers, have access to training in vocational
schools and retraining centres.'
[26] In that regard, it should be noted that in order for an educational institution to
be regarded as a vocational school for the purposes of that provision the fact that
some vocational training is provided is not sufficient. The concept of a vocational
school is a more limited one and refers exclusively to institutions which provide
only instruction either alternating with or closely linked to an occupational activity,
particularly during apprenticeship. That is not true of universities.
[27] However, while it is true that Article 7(3) of the regulation provides for a
specific social advantage, that does not mean that a grant awarded for
maintenance and training with a view to the pursuit of studies in an institution
which does not fall within the concept of a vocational school under that provision
cannot be held to be a social advantage within the meaning of Article 7(2).
[28] The answer to the first branch of the first question must therefore be that a
grant awarded for maintenance and training with a view to the pursuit of
university studies leading to a professional qualification constitutes a social
advantage within the meaning of Article 7(2) of Regulation 1612/68.
The concept of worker
[29] In this connection, the three member-States which have submitted
observations argue that a person loses the status of worker, on which the social
advantages depend, when, in the host State, he gives up either his previous
occupational activity or, if unemployed, his search for employment in order to
pursue full-time studies. The Commission disagrees with that view.
[30] It should be noted first of all that neither Article 7(2) of Regulation 1612/68
nor Articles 48 or 49 of the EEC Treaty provide an express answer to the
question whether a migrant worker who has interrupted his work in the host State
in order to *565 pursue university studies leading to a job qualification is to be
regarded as having retained his status as a migrant worker for the purposes of
Article 7 of the regulation.
[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 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 Cases
53/81, Levin v. Staatssecretaris Van Justitie, [FN28] and 139/85, Kempf v.
Staatssecretaris Van Justitie [FN29]) but who are no longer employed are
nevertheless considered to be workers under certain provisions of Community
law.
FN28 [1982] E.C.R. 1035, [1982] 2 C.M.L.R. 454.
FN29 [1986] E.C.R. 1741 [1987] 1 C.M.L.R. 764.
[34] First, under Article 48(3)(d) EEC, persons who remain in the territory of a
member-State after having been employed in that State are regarded as workers.
Commission Regulation 1251/70 on the right of workers to remain in the territory
of a member-State after having been employed in that State, which implemented
that provision of the Treaty, gives workers whose work 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 on the abolition
of restrictions on movement and residence within the Community for workers of
member-States and their families [FN30] 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 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.
FN30 [1968] O.J. Spec. Ed. 485.
[35] Furthermore, Article 7(3) of Regulation 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.
*566 [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 work activity and the course of study; there must be a relationship
between the purpose of studies and the previous work 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.
[38] Such a conception of freedom of movement for migrant workers
corresponds, moreover, to current developments in careers. Continuous careers
are less common than was formerly the case. Occupational activities are
therefore occasionally interrupted by periods of training or retraining.
[39] The answer to the second branch 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 job qualification, after having engaged in work 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 1612/68, provided that
there is a link between the previous work 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
[40] In this regard, the three member-States which have submitted observations
argue that any member-State is entitled to require that a national of another
member-State applying for a maintenance and training grant with a view to the
pursuit of university studies must first have engaged in work activity for a
minimum period within its territory. The Commission disagrees with that point of
view.
[41] It should be stressed that a student who is a national of another memberState may claim such a grant for university training only in his capacity as a
worker within the meaning of Article 48 EEC and Regulation 1612/68. The Court
has held (see Cases 75/63, Hoekstra v. Bedrijfsvereniging Detailhandel, [FN31]
and 53/81, Levin) that the concept of worker has a specific Community meaning
and may not be defined on the basis of criteria laid down in national legislation.
FN31 [1964] E.C.R. 177, [1964] C.M.L.R. 319 *567 .
[42] Member-States cannot therefore unilaterally make the grant of the social
advantages contemplated in Article 7(2) of the above regulation conditional upon
the completion of a given period of occupational activity (see Case 157/84,
Frascogna v. Caisse des Dépôts et Consignations). [FN32]
FN32 [1985] E.C.R. 1739.
[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 work
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.
[44] The answer to the third branch of the first question must therefore be that the
host member-State cannot make the right to the same social advantages
provided for in Article 7(2) of Regulation 1612/68 conditional upon a minimum
period of prior occupational activity within the territory of that State.
Costs
The costs incurred by the Federal Republic of Germany, the Kingdom of
Denmark, the United Kingdom and the Commission of the European
Communities, which have submitted observations to the court, are not
recoverable. As these proceedings are, in so far as the parties to the main
proceedings are concerned, in the nature of a step in the action pending before
the national court, the decision as to costs is a matter for that court.
Order
THE COURT, in reply to the questions referred to it by the Verwaltungsgericht
Hannover, by order of 19 November 1985,
HEREBY RULES:
1. 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.
2. A grant awarded for maintenance and training with a view to the pursuit of
university studies leading to a professional qualification constitutes a social
advantage within the meaning of Article 7(2) of Council Regulation 1612/68 on
freedom of movement for workers within the Community.
*568 3. A national of another member-State who undertakes 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
1612/68, provided that there is a link between the previous occupational activity
and the studies in question.
4. The host member-State cannot make the right to the same social advantages
provided for in Article 7(2) of Regulation 1612/68 conditional upon a minimum
period of prior occupational activity within the territory of that State.
(c) Sweet & Maxwell Limited
[1989] 3 C.M.L.R. 545
END OF DOCUMENT