Important legal notice

61987C0235

European Court reports 1988 Page 05589

Opinion of the Advocate-General

My Lords,

Miss Matteucci, the plaintiff in the proceedings before the Belgian Conseil d' État by which this reference under Article 177 of the EEC Treaty is made, is an Italian national. She was born in 1960 in Belgium where her father, an Italian migrant worker, had settled. He has since been resident in Belgium as apparently has her mother. Miss Matteucci received the whole of her education in Belgium. Since 1983, she has been employed as a teacher of a discipline called "rhythmics" at the Centre Culturel in Namur. She continued to study and completed a course in rhythmics at an institute in Brussels in 1985, being placed in the top 2% of students.

In 1984 she applied to the commissariat général aux relations internationales (CGRI) of the Communauté française in Belgium for a "specialization" scholarship to study singing and voice-training in Berlin. Three such scholarships, intended not to cover registration or tuition fees but for the student's maintenance, were available to the Communauté française under an agreement between Belgium and the Federal Republic of Germany of 24 September 1956. On her application form, Miss Matteucci stated that singing lessons would complement her training and experience in rhythmic dance and enable her to teach children and adults to express themselves vocally as well as physically.

Article 4 of the 1956 agreement provides that "each Contracting Party shall grant to nationals of the other party scholarships to enable them to undertake or continue studies or research in the other country or to complete their scientific, cultural, artistic or technical education". Relying on the nationality condition contained in that article, the CGRI, the second defendant in the national proceedings, refused to pass on her application to the German authorities (who, it appears, were to make the final selection from the candidates). Miss Matteucci's challenge of that refusal the Conseil d' État has held to be admissible. It dismissed her case against the Communauté française, the first defendant.

In her initial pleadings, Miss Matteucci relied exclusively on Article 48 of the Treaty as implemented by Articles 7 and 12 of Regulation No 1612/68 (Official Journal, English Special Edition 1968-69, p. 45: the "Regulation"). However, by a supplementary pleading, she sought to rely on the Court's ruling in Case 293/83 Gravier v City of Liège ((1985)) ECR 593, in which the Court, interpreting Articles 7 and 128 of the Treaty, held that "the conditions of access to vocational training fall within the scope of the Treaty" and that therefore "the imposition on students who are nationals of other Member States, of a charge, a registration fee or the so-called 'minerval' as a condition of access to vocational training, where the same fee is not imposed on students who are nationals of the host Member State, constitutes discrimination on grounds of nationality contrary to Article 7 of the Treaty" (paragraphs 25 and 26). Vocational training was defined as "any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment ..., whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education" (paragraph 30).

From the body of the order for reference, it appears that the Conseil d' État wished to know primarily whether the Gravier principle applied to "scholarships granted or refused in circumstances such as those of this case". However, its question is more widely phrased:

"Must the provisions of the Treaty of Rome of 25 March 1957, in particular Articles 7, 48, 59, 60 and 128, be interpreted as meaning that scholarships granted by a Member State cannot be reserved for nationals of one other Member State, as is done by Article 4 of the Cultural Agreement entered into on 24 September 1956 by the Federal Republic of Germany and Belgium?"

No submissions have been made to the Court concerning Articles 59 and 60 which deal with the freedom to provide services, the Commission taking the view that the matter could be resolved by reference to Articles 7 and 48 of the Treaty and to the Regulation. In my Opinions in Gravier and in Case 263/86 Belgium v Humbel (pending), I expressed the view that education provided by the State was not a service within the meaning of those articles because it was not provided "for remuneration". I remain of that view in the absence of further argument to the contrary.

In its judgments in Case 39/86 Lair v Universitaet Hannover and Case 197/86 Brown v Secretary of State for Scotland, given on 21 June 1988 (that is, after the hearing in the present case) ECR 0000, the Court held that the Gravier principle only applied to grants to cover fees for registration, tuition or other expenses in connection with vocational training and that, in the present state of development of Community law, State grants for maintenance and training fell outside the scope of Article 7 of the Treaty (paragraphs 14 and 15 of Lair, repeated verbatim in paragraphs 17 and 18 of Brown).

These rulings apply with at least equal force to the scholarship sought by Miss Matteucci. If maintenance grants provided across the board to nationals are not required, as a matter of Community law, to be provided on the same terms to non-nationals, the reservation to nationals of exceptional scholarships to study abroad such as that sought by Miss Matteucci (which moreover was payable by the German authorities) does not contravene Article 7 read with Article 128.

Different considerations apply if the non-nationals in question can derive rights from Article 48 of the Treaty as specifically implemented by the Regulation.

Article 7 of the Regulation provides that a worker who is a national of a Member State in the territory of another Member State "shall enjoy the same social and tax advantages as national workers" (paragraph 2) and "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" (paragraph 3).

Article 12 is in the following terms:

"The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions."

From the order for reference, it appears that Miss Matteucci seeks to rely on both Articles 7 and 12 of the Regulation as a child of a migrant worker, a position supported by the Italian Government. The CGRI and the French Government contend that Article 12 is inapplicable because she is herself a worker. The Commission's position is that she can claim both under Article 7 as a worker in her own right and under Article 12 as the child of a migrant worker.

Article 7 of the Regulation confers rights on "workers". The order for reference does not find specifically that she is a worker, merely that she has taught rhythmic dance at Namur since 1983 and that she continued her studies at any rate until 1985 by when she had applied for the course in issue.

The fact that she was still studying did not prevent her from being a worker - part-time employment is not excluded from the rules on freedom of movement of workers so long as the employment constitutes "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 even if the income received is less than a legal minimum, whether or not supplemented by other income (Case 53/81 Levin v Staatssecretaris van Justitie ((1982)) ECR 1035; Case 139/85 Kempf v Staatssecretaris van Justitie ((1986)) ECR 1741).

The national court must thus determine first whether she was a worker on the basis of the Court's judgments. If so the question remains whether she can rely on the Regulation since she did not herself move from one Member State to another. Her father was the migrant worker. It is clear that if when she took up employment in 1983 she was still dependent on him (since she was over 21 years of age) she had a right to do so by virtue of Article 11 of the Regulation. Even if she was not so dependent, it seems to me that Article 48 in paragraphs 3 (a) and (b) gives her the right, even though already in Belgium, to accept an offer of employment actually made and to move freely within Belgium for that purpose.

The right of the children of migrant workers to take up employment in the Member State where they live seems to me (despite the limitation in Article 11 to dependants and children under 21) to be recognized also by Article 1 of the Regulation which provides that: "Any national of a Member State shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State ...".

Even if she was not a worker at the relevant time, it seems from the Court's judgment of 18 June 1987 in Case 316/85 Centre public d' aide sociale de Courcelles v Lebon that her father can claim as a social advantage under Article 7 (2) that she should have the same educational rights as the children of Belgian workers so long as she was dependent on him in fact, in the sense that he actually maintained her irrespective of the reasons for such maintenance, and whether or not she was in fact capable of supporting herself.

The same would seem to apply to rights conferred under Article 7 (3) of the Regulation.

Assuming that the national court finds either that she was a worker, or a dependant seeking to rely on Article 7 (2) through her father, then it seems to me that she is entitled to the benefits of the Belgian educational system on the same basis as the children of Belgian workers in Belgium, subject to the argument, which I deal with later, based on the fact that the course does not take place in Belgium.

Whether or not she is a worker at all but is a dependant, relying on derivative rights under Article 7, can Miss Matteucci rely on Article 12 of the Regulation, the relationship between the two articles not having been determined in previous decisions of the Court?

Article 12, by its very wording, is not confined to vocational training but covers the host State's "general educational, apprenticeship and vocational training courses". It was explicitly held in Case 9/74 Casagrande v Landeshauptstadt Muenchen ((1974)) ECR 773 to apply to means-tested grants. The Court there held that the second paragraph of Article 12 showed that the article was "intended to encourage special efforts, to ensure that the children may take advantage on an equal footing of the education and training facilities available" (paragraph 4). It deduced that the article therefore referred "not only to rules relating to admission, but also to general measures intended to facilitate educational attendance" (ibidem).

I reject the argument advanced that the reference in Casagrande to "general measures" renders Article 12 inapplicable to exceptional or limited scholarships. I consider that the phrase was intended to comprehend all State measures relating to educational attendance, and not only to those of wide application.

Is there a point at which a child of a migrant worker ceases to be a child for the purposes of Article 12? In the first place is there an age-limit; in the second does he cease to be a child if he begins to work?

Since it is clear that the rights conferred are not confined to periods of compulsory general schooling or even attendance at schools followed immediately by full-time courses at university or technical colleges, as apprenticeship and vocational training courses (which may come later in time) are specifically mentioned, I do not think that it can be said that there is any specific age at which a person ceases to be a child for the purposes of the article. A child of a migrant worker can obviously not claim at any age to attend schools with age-limits; but if there are no age-limits then it seems to me that if a national has the right to enrol for a particular vocational course, or even for general university education, then, as the Commission contends, the child of a migrant worker has the same right and on the same terms. This principle should apply from the beginning of school to the completion of the types of education specified and is not necessarily excluded because at some stage the child has been employed.

If the child is a worker and can successfully claim the benefits of Articles 7 (2) or 7 (3) then he does not need to claim as a child. If he works occasionally but does not qualify as "a worker" then, as I see it, he can claim as a child. The difficult question arises if he is a worker but cannot show that the proposed course is linked to his previous employment for the purposes of Article 7 (2) or if he fails in his claim as a worker for some other reason.

It is here that the question arises as to whether for the purposes of Article 12 the rule is once a child always a child, or once a worker no longer a child. Prima facie it seemed to me that the two categories were mutually exclusive so that once a child was a worker he ceased to be a child for the purposes of Article 12. Yet, there is force in the Commission's submission to the effect that a child of a migrant worker can always rely on Article 12 to claim to be admitted to the State's educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if the child is resident in that State. It may seem strange that a child of a migrant worker who is an adult should, on the basis of the Commission's argument, acquire rights to education not open to workers in the light of the Court's judgments in Lair and Brown according to which the rights to education under Article 7 (2) are limited to courses where there is a link between the previous occupation and the studies in question. On the other hand if mobility and integration of workers and their families is to be encouraged, discrimination on the grounds of nationality against the children of migrant workers is clearly contrary to the intention of the Regulation.

Balancing these factors, it seems to me that the Commission's argument should be accepted and that a child of a migrant worker can rely on Article 12 if the child is not eligible under Article 7, even if there has been intervening employment, subject to the course falling within the description "general educational, apprenticeship or vocational training courses". There may be difficult cases to be decided in the future, particularly as the children of first generation migrant workers grow older. The present does not seem to me such a difficult case since Miss Matteucci, although she had begun work, was still continuing her professional education at the time she applied for the course in Berlin.

There remain the arguments based on the fact that the course is not to be given in Belgium but in Berlin and is provided pursuant to a bilateral convention.

In my opinion, it is clear that if one Member State arranges for its nationals to undertake courses in another Member State, which if they were held in that Member State would constitute social advantages (Article 7 (2)), training in vocational schools or retraining (Article 7 (3)), or general education, apprenticeships or vocational training courses (Article 12), then those courses, albeit held in another Member State, respectively fall within Articles 7 (2), 7 (3) or 12. They are to be seen as part of the educational system of the State. The argument that Article 12 cannot apply because the child will no longer be resident in the State is untenable. Residence in the Member State is a condition of acceptance for the course not for its completion. Were it otherwise no child could claim to take part in a university course held, for example, partly in an English and partly in a French university or institution providing vocational courses.

The last problem, raised by the CGRI and the French Government, relates to the fact that these scholarships are made available under a bilateral treaty pre-dating the Treaty of Rome and styled a "cultural agreement". The French Government seeks to rely on Article 234 of the Treaty which provides:

"The rights and obligations arising from agreements concluded before the entry into force of this Treaty between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.

To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established ..."

This article is, in my view, clearly not relevant since it only applies to treaties between Member States and third countries, which is not the case here.

It is plain, as the Commission accepts, that cultural exchanges and agreements between Member States to achieve such exchanges can make a significant contribution to mutual understanding and to the development of inter-Member State relations. On the other hand, and even though culture, like education, may not be specifically referred to in the Treaty, Treaty provisions may still have their effect (Casagrande, paragraph 6; Gravier, paragraph 19).

In my opinion, even though fully accepting that Member States may wish to arrange exchanges of students who can both bring their own national culture and absorb that of the Member State to which they go, nationality per se cannot be accepted as the test in connection with vocational training as defined in Gravier or the other courses referred to in Articles 7 and 12 of the Regulation. "Cultural" in relation to this kind of agreement is in any event an elastic term. Where the exchange is of students of, e.g. technology or science, "cultural background" may be less important than attainments in technology or science for the purposes of deciding candidates for the exchange. However, even if it is wished to let those with a background in Belgium see Germany and those with a background in Germany see Belgium and to bring the cultures of those States with them, it seems to me that it cannot be said of a candidate born and wholly educated in Belgium, that she cannot be eligible for such a scholarship, solely on the grounds of her nationality, on the basis that she is not someone who has experience or understanding of Belgian culture. Whether there is a better candidate is a wholly different question.

Nor do I think it an answer to Miss Matteucci's claim that the scholarships are provided under an "international convention" between two Member States which was entered into before the EEC Treaty was signed.

In Member States, Community law has primacy; if discrimination on the grounds of nationality is outlawed in a particular area, the Member State against which an individual can insist on the rule of non-discrimination being applied must avoid taking steps which discriminate on grounds of nationality.

Whether or not (1) migrant workers' children resident in Belgium could rely on Article 12 as against the Federal Republic of Germany, a matter I considered in Humbel, and whether or not, (2) as the Commission argues it has, the Federal Republic has a duty under Article 5 of the Treaty to do nothing to obstruct the performance of its obligations under Article 12 of the Regulation by Belgium (and, therefore, to evaluate on their merits all candidates put forward by Belgium whatever their nationality), it seems to me that, if Miss Matteucci can otherwise rely on Articles 7 or 12 of the Regulation, she is not to be denied by the mere fact that the scholarship in question is provided for study in Germany pursuant to an international agreement between Belgium and Germany. Different issues may arise in respect of scholarships provided unilaterally by one Member State or in respect of arrangements made otherwise than by Member States, issues which it does not seem to me arise on the present reference.

I would therefore answer the Conseil d'État's question to the effect that a Member State which has concluded an agreement with another Member State under which scholarships for maintenance in order to study in the latter State are provided cannot refuse to make them available, on the terms applied to its own nationals, to a national of another Member State who is able to claim under Article 7 of the Regulation as a migrant worker or as a dependant of a migrant worker or under Article 12 as a child of a migrant worker, solely on the grounds that the applicant does not have the nationality of the first-mentioned Member State. However, no such obligation arises from Articles 7, read with 128, or from Articles 59 and 60 of the Treaty.

The costs of the parties in the proceedings before the Conseil d'État are a matter for that court. Those of the French and Italian Governments and the Commission are not recoverable.