Keywords
Summary

Keywords

1. Freedom of movement for persons — Workers — Definition — National of a Member State employed for a temporary period of two and a half months in the territory of another Member State — Assessment by the national court — (EC Treaty, Art. 48 (now, after amendment, Art. 39 EC))

2. Freedom of movement for persons — Workers — Definition — Person commencing studies after engaging in occupational activity — Retention of the status of worker — Conditions — (EC Treaty, Art. 48 (now, after amendment, Art. 39 EC); Council Regulation No 1612/68, Art. 7(2))

Summary

1. The fact that a national of a Member State has worked for a temporary period of two and a half months in the territory of another Member State, of which he is not a national, can confer on him the status of a worker within the meaning of Article 48 of the Treaty (now, after amendment, Article 39 EC) provided that the activity performed as an employed person is not purely marginal and ancillary.

It is for the national court to carry out the examinations of fact necessary in order to determine whether that is so in the case before it. Circumstances preceding and subsequent to the period of employment, such as the fact that the person concerned:

─ took up the job only some years after his entry into the host Member State,

─ shortly after the end of his short, fixed-term employment relationship, became eligible for entry to university in the host Member State by virtue of having completed his schooling in his country of origin, or

─ attempted to find a new job in the period between the end of the short, fixed-term employment relationship and the time when he took up his studies,

are not relevant in this connection.

see para. 32, operative part 1

2. Migrant workers are guaranteed certain rights linked to the status as a worker even when they are no longer in an employment relationship.

In the field of assistance for university education, a national of a Member State other than the host Member State who has engaged in occupational activity in that host State and then undertaken there university studies leading to a professional qualification must be regarded as having retained his status as a worker entitled as such to benefit from Article 7(2) of Regulation No 1612/68 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92, provided that there is continuity between the previous occupational activity and the studies pursued. However, 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 occupational retraining.

In that regard a Community national, where he has the status of a migrant worker for the purposes of Article 48 of the Treaty (now, after amendment, Article 39 EC) is not necessarily voluntarily unemployed, solely because his contract of employment, from the outset concluded for a fixed term, has expired.

That cannot give rise to a situation whereby a national of a Member State may enter another Member State for the sole purpose of enjoying, after a very short period of occupational activity, the benefit of the student assistance system in that State. Such an abuse is not covered by the Community provisions in question.

see paras 34-36, 48, operative part 2