Keywords
Summary

Keywords

1 Freedom of movement for persons - Workers - Concept - Existence of an employment relationship - Pursuit of activities which are effective and genuine - Spouse of the director and sole shareholder of a company - Covered

(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC); Council Regulation No 1612/68)

2 Freedom of movement for persons - Workers - Equal treatment - Social advantages - Study finance - Grant to dependent descendants of a worker who is a national of another Member State - Residence requirement - Not permissible

(Council Regulation No 1612/68, Art. 7)

3 Freedom of movement for persons - Freedom of establishment - Legislation of a Member State making study finance in the case of children of nationals of other Member States conditional upon residence in the national territory - Discrimination against dependent descendants of self-employed workers - Not permissible

(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC))

Summary

1 The concept of `worker', within the meaning of Article 48 of the Treaty (now, after amendment, Article 39 EC) and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a `worker'. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.

The fact that a person is related by marriage to the director and sole shareholder of a company does not preclude that person from being classified as a `worker' within the meaning of the above provisions, so long as he pursues his activity in the context of a relationship of subordination. The personal and property relations between spouses which result from marriage do not rule out the existence, in the context of the organisation of an undertaking, of a relationship of subordination characteristic of an employment relationship.

2 While a Member State may not make the grant of a social advantage within the meaning of Article 7 of Regulation No 1612/68 dependent on the condition that the beneficiaries be resident within its territory, the principle of equal treatment laid down in that provision is also intended to prevent discrimination to the detriment of descendants dependent on the worker. In a situation where national legislation does not impose any residence requirement on the children of national workers for the financing of their studies, such a requirement is discriminatory if imposed on the children of workers who are nationals of other Member States.

Accordingly, the dependent child of a national of a Member State who pursues an activity as an employed person in another Member State while maintaining his residence in the State of which he is a national can rely on Article 7(2) of Regulation No 1612/68 in order to obtain study finance under the same conditions as are applicable to children of nationals of the State of employment, and in particular without any further requirement as to the child's place of residence.

3 Article 52 of the Treaty (now, after amendment, Article 43 EC) confers on nationals of a Member State who wish to pursue activities as self-employed persons in another Member State the benefit of the same treatment as the host State's own nationals and prohibits any discrimination based on nationality which hinders the taking up or pursuit of such activities. The principle of equal treatment is also intended to prevent discrimination to the detriment of descendants who are dependent on a self-employed worker. It precludes, therefore, national legislation which makes study finance conditional upon a residence requirement in the case of the children of workers who are nationals of other Member States but not in the case of the children of workers who are nationals of the host State, since such a condition is discriminatory.

Accordingly, the dependent child of a national of a Member State who pursues an activity as a self-employed person in another Member State while maintaining his residence in the State of which he is a national can obtain study finance under the same conditions as are applicable to children of nationals of the State of establishment, and in particular without any further requirement as to the child's place of residence.