Steven Brown v. Secretary of State for Scotland (Case 197/86)

Before the Court of Justice of the European

Communities

ECJ

(Presiding, Lord 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 the United Kingdom by the Outer House of the Court of Session

under Article 177 EEC. Education. Discrimination. Vocational training. Education which prepares for a qualification for a particular trade, profession or employment or which provides the necessary training and skills therefor is vocational training for the purposes of Article 7 EEC. In general, university education fulfils these conditions, with the exception of certain special courses which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation. [10] 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): not yet reported, reaffirmed. Education. Discrimination. Vocational schools. Universities. The fact that a teaching establishment provides a measure of vocational training is not sufficient to enable it to be regarded as a vocational school within the meaning of Article 7(3) of Regulation 1612/68. The term ' vocational school' has a narrower meaning and refers solely to establishments which provide only instruction interposed between periods of employment or else closely connected with employment, particularly during apprenticeship. That is not the case with universities, which consequently are not to be regarded as ' vocational schools'

within the meaning of Article 7(3). [12]-[13] Education. Discrimination. Vocational training. State assistance to university students is only covered by Article 7 EEC as related to vocational training in so far as it is intended to cover fees (for *404 registration, tuition etc.) but not as regards maintenance and training. [17]-[18] Gravier v. City of Liege (293/83): [1985] E.C.R. 593, [1985] 3 C.M.L.R. 1 explained. Aliens. Worker. For the purposes of Article 48 EEC and Regulation 1612/68, any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker. The essential characteristic of the 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. Community law does not impose any additional conditions for a person to be classifiable as a worker, and member-States cannot unilaterally make the grant of social advantages contemplated in Article 7(2) of Regulation 1612/68 conditional upon the completion of a given period of employment. [21]-[22] Levin v. Staatssecretaris Van Justitie (53/81): [1982] E.C.R. 1035, [1982] 2 C.M.L.R. 454, Kempf v.Staatssecretaris Van Justitie(139/85): [1986] E.C.R. 1741, [1987] 1 C.M.L.R. 764, Lawrie-Blum v.Land Baden-Württemberg(66/85): [1987] 3 C.M.L.R. 389 and Frascogna v.Caisse des Depots et Consignations(157/84): [1985] E.C.R. 1739, explained. Education. Discrimination. Workers. Where a person takes a job (and thus becomes a worker) solely as a result of his being accepted for admission to university to undertake studies related to the nature of his work, the employment relationship is merely ancillary to the studies. He will not therefore be entitled, relying on Article 7(2) of Regulation 1612/68, to a grant for those studies in his capacity as worker in the host member-State [27] Lair v.Universität Hannover(39/86): not yet reported, distinguished. Aliens. Social benefits. Family. Article 12 of Regulation 1612/68 grants rights only to a child who has lived with his parents, or one of them, in a member-State while at least one of his parents resided there as a worker. It does not create rights for the benefit of a worker's child who was born after the worker ceased to work and reside in the host State. [30] The Court interpreted Article 7 EEC and Articles 7 and 12 of Regulation 1612/68 in the context of a Franco-British dual national whose parents had lived and

worked in Britain before he was born but not since, and who worked in a Scottish engineering firm for eight months before starting a degree course in engineering at Cambridge University for which he was denied a British maintenance *405 grant, to the effect that his university studies counted as vocational training for Article 7 EEC purposes, that consequently discrimination in subsidising his fees would contravene Article 7 EEC but that did not apply to maintenance grants, that universities are not 'vocational schools' under Article 7(3) of Regulation 1612/68, that he was a worker by virtue of his employment in Scotland but because of the very close link between his work and his university course he was not entitled to non-discrimination in grant awards in his capacity as a worker under Article 7(2) of the regulation and that he could not claim the grants as the child of a migrant worker since his parents had left Britain before he was born. Representation Ronald D. Mackay Q.C. and Matthew G. Clarke, of the Scottish Bar, instructed by Messrs. W. & J. Burness, for the petitioner. David Donaldson Q.C., of the English Bar, instructed by H. R. L. Purse, of the Treasury Solicitor's Department, for the United Kingdom Government as amicus curiae. Laurids Mikaelsen, Legal Adviser at the Foreign Ministry, for the Danish Government as amicus curiae. Julian Currall, of the Legal Department of the E.C. Commission, for the Commission as amicus curiae. A written amicus brief was submitted by Martin Seidel, Principal at the Ministry of Economic Affairs, and Manfred Zuleeg, Professor at the University of Frankfurt, for the German Government. 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 2. Blaizot and Others v. University of Liege and Others (24/86), 2 February 1988: not yet reported. Gaz:24/86 3. Re the Immigration of Non-Community Workers: Germany and Others v. E.C. Commission (281/85, 283-285/85 & 287/85), 9 July 1987: [1988] 1 C.M.L.R. 11. Gaz: 281/85 4. 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 5. Kempf v. Staatssecretaris Van Justitie (139/85), 3 June 1986: [1986] E.C.R. 1741, [1987] 1 C.M.L.R. 764. Gaz:139/85 6. Lawrie-Blum v. Land Baden-Württemberg (66/85), 3 July 1986: [1987] 3 C.M.L.R. 389. Gaz:66/85 7. Frascogna v. Caisse des Depots et Consignations (157/84), 6 June 1985: [1985] E.C.R. 1739. Gaz:157/84 8. Lair v. Universität Hannover (39/86), 21 June 1988: not yet reported. Gaz:39/86

The following further cases were referred to by the Advocate General: 9. Forcheri v. Belgium (152/82), 13 July 1983: [1983] E.C.R. 2323, [1984] 1 C.M.L.R. 334. Gaz:152/82 *406 10. Re Education Fees: E.C. Commission v. Belgium (293/85), 2 February 1988: not yet reported. Gaz:293/85 11. Barra v. State (Belgium) and City of Liege (309/85), 2 February 1988: [1988] 2 C.M.L.R. 409. Gaz:309/85 12. Casagrande v. Landeshauptstadt München (9/74), 3 July 1974: [1974] E.C.R. 773, [1974] 2 C.M.L.R. 423. Gaz:9/74 13. Centre Public d'Aide Sociale de Courcelles v. Lebon (316/85), 18 June 1987: not yet reported. Gaz:316/85 14. Hoeckx v. Centre Public d'Aide Sociale de Kalmthout (249/83), 27 March 1985: [1985] E.C.R. 974, [1987] 3 C.M.L.R. 638. Gaz:249/83 15. Scrivner and Cole v. Centre Public d'Aide de Chastre (122/84), 27 March 1985: [1985] E.C.R. 1028, [1987] 3 C.M.L.R. 638. Gaz:122/84 The following additional cases were referred to in argument: 16. 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 17. Van Roosmalen v. Bestuur Van Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen (300/84), 23 October 1986: not yet reported. Gaz:300/84 18. Drake v. Chief Adjudication Officer (150/85), 24 June 1986: [1986] E.C.R. 1995, [1986] 3 C.M.L.R. 43. Gaz:150/85 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Opinion of the Advocate General (Sir Gordon Slynn) This reference for a preliminary ruling under Article 177 EEC from the Court of Session, Scotland, raises important issues as to the rights of a person to vocational training in a university, and in particular as to rights to a maintenance grant. It is the last in the series of five cases in the others of which I have already given Opinions which in part deal with the matters in issue. I shall make reference to those Opinions to avoid repetition. The agreed relevant facts stated, if I may say so, with the utmost clarity, in the Order for Reference can be summarised as follows. Steven Malcolm Brown, the petitioner in the proceedings before the national court, was born in France in 1966. His British father and French mother have both worked in England but not since 1965 when they moved to France, where they will lived at the time relevant to these proceedings. The petitioner, who has dual French and British nationality, attended French schools, obtaining his *407 baccalauréat in June 1983. He was accepted for a place at Cambridge University

to read electrical engineering, the course beginning in the autumn of 1984. Before going to Cambridge, he was employed from 9 January 1984 as a traineer engineer with Ferranti plc in Edinburgh. His employment was full time, salaried employment described as 'pre-university industrial training' and national insurance contributions were paid. After a twelve week induction course, he was set to work and 'carried out electrical engineering tasks of a practical nature which the company required to be carried out as part of its normal trading activity,' in the words of the Order for Reference. It was a precondition of being accepted for such training that he should have been awarded a university place. He left Ferranti for Cambridge on 14 September 1984. In October 1984, Ferranti agreed to sponsor him under their University Sponsorship Scheme. That entitled him to a sum of money each term and further industrial training in the form of paid employment during the summer vacations. It did not oblige him to work for Ferranti on completion of his course or oblige Ferranti to employ him then. Ferranti normally awards sponsorship only to those who have completed their first year at university, but that requirement was waived in his case, his performance when employed in the earlier part of 1984 being taken into account. Cambridge University recommends but does not require electrical engineering students to obtain industrial experience before starting the course. However, it is obligatory to acquire eight weeks' experience before the end of the second year. The petitioner's intention is to qualify and to work as an electrical engineer and to become a member of the professional body for electrical engineers, the Institution of Electrical Engineering. His degree course aims to provide students with wide knowledge of certain skills in engineering and electrical engineering. It also includes courses in mathematics and industrial organisation. Significant specialisation in electrical engineering is deferred until the third year. The main classes of membership of the Institution are student members, associated members, members and fellows. Members and fellows are known as ' corporate members.' A first or second-class honours degree in electrical engineering or in a relevant discipline such as physics, maths, computer science or information processing, awarded after following a course accredited by the Institution, as is the petitioner's course, satisfies the Institution's educational requirements and enables the graduate immediately to become an associate member. To become a corporate member, further requirements of practical training and experience must be met. The candidate must also satisfy a 'professional test' comprising a written submission recording his experience and an interview in relation to that submission. While a person may carry on business in the United *408 Kingdom as an engineer and use the title ' engineer' without possessing any formal qualifications and without being a member of a particular institution, a person registered in the professional engineers' section of the Engineering Council's register is entitled to use the title 'Chartered Engineer' and the designatory letters 'C.Eng.' provided that he is a member of a nominated institution. Corporate membership of the Institution of Electrical Engineers entitles a person to be so registered.

Under statutory powers, the Secretary of State for Scotland has made the following relevant regulations governing payment of student allowances from public funds: the Students' Allowance (Scotland) Regulations 1971, [FN1] as amended by the Students' Allowances (Scotland) Amendment Regulations 1983 [FN2] and the Students' Allowances (Scotland) Amendment (no. 2) Regulations 1983. [FN3] The two principal elements of students' allowances are the maintenance allowance (the amount of which depends on the parental contribution, which is means tested) and the tuition fees which are paid directly by the Scottish Education Department (SED) to the university irrespective of the student's income or that of his parents. FN1 S.I. 1971/124. FN2 S.I. 1983/798. FN3 S.I. 1983/1536. I do not think it is necessary to set out the provisions of the Regulations in detail. Suffice it to say that, by letters of 6 August and 18 October 1984, the SED refused the petitioner's application for a student's allowance on the following grounds; he would have been entitled to an allowance if he had satisfied the conditions set out respectively in any one of the three heads of refusal. (1) He had not been ordinarily resident in the British Isles for the three years ending 31 August 1984. (2) Although resident within the European Community for that period, he had not been in employment in Scotland for at least nine of the twelve months preceding that date and he was not seeking an allowance in respect of the course at a 'vocational training establishment' (being a 'vocational school' within the meaning of Council Regulation 1612/68), both of which conditions had to be satisfied for an EEC national resident within the Community elsewhere than in Scotland to obtain an allowance. It is to be noted that another condition which must be satisfied under that head is that the person seeking the allowance must have entered the United Kingdom wholly or mainly for the purpose of taking up or seeking employment. (3) Although resident within the European Community and the child of an EEC national, neither of his parents was employed in Scotland on, or had been in employment in Scotland for an aggregate period of not less than one year during the three years preceding, the 'qualifying date' (in casu 30 June 1984). *409 In proceedings for judicial review of the SED's refusal, the petitioner claims that he is entitled to an allowance, and the Regulations are overridden, by virtue of one or other of the following provisions of Community law: (i) Article 7 of the EEC Treaty as interpreted in Case 293/83 Gravier v. City of Liege [FN4] (ii) Article 7(3) of Regulation 1612/68, (iii) Article 7(2) of that regulation or (iv) Article 12 thereof. FN4 [1985] E.C.R. 593, [1985] 3 C.M.L.R. 1

His claims are contested by the Secretary of State for Scotland (under whose authority the SED comes) and the Court of Session has referred certain questions to this Court relating to those Articles of the Treaty and the regulation. 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. Article 12 of Regulation 1612/68 provides: 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. The Danish Government objects as a preliminary matter that as he is a British national he cannot rely, as against the United Kingdom, on any provision of the Treaty dealing with discrimination. The United Kingdom Government takes no such point and apart from the brief reference in the Danish Government's observations the question has not been discussed in argument. I proceed on the basis that as a French national he can claim rights as such, France being the country in which he has resided and with which, apart from the fact that he is the son of a British national, he has the closest connection.

Question 1 Does a course of full-time study in engineering at a university leading to the award of a degree which enables the holder of the degree to satisfy the educational requirements for associate membership of the professional body for electrical engineers which in turn may enable him, after completion of further practical experience, to be registered as a professional engineer, and to use the title 'Chartered Engineer' constitute either or both of: *410 (i) vocational training falling within the scope of the EEC Treaty for the purpose of Article 7 thereof as interpreted in Case 152/82 Forcheri v. Belgium and Case 293/83 Gravier v. City of Liege; and (ii) training in a vocational school referred to in Article 7(3) of Council Regulation 1612/68? This question has to be decided in the light of the Court's judgments in Case 152/82 Forcheri v. Belgium [FN5] and Gravier, though the national court in deciding the issue finally will have the benefit of the Court's ruling in Cases

293/85 E.C. Commission v. Belgium [FN6] and 24/86 Blaizot v. University of Liege and Others, [FN7] in which the question as to when university education may constitute vocational training, if at all, was argued at length. FN5 [1983] E.C.R. 2323, [1984] 1 C.M.L.R. 334. FN6 Not yet reported. FN7 Not yet reported. My views are set out in my Opinions in those cases, particularly that in Belgium, and I do not repeat them here in extenso. Briefly, they are that a university course constitutes vocational training if it 'prepares for a qualification' or 'provides the necessary training and skills' for a particular profession, trade or employment, even if it includes 'an element' of general education. In answer to the Court's written questions the German Government appeared to accept that all forms of university level education which prepare for a profession or employment are vocational training and the Danish Government equally accepted that all training conferring competence in an occupation over and above general education is vocational training. On the other hand the Federal Republic submitted in its observations that a university course may be vocational only if completion of it is a prerequisite for entry to a particular profession. I do not accept that submission. There are some professions which may be entered both by graduates of a given discipline and by non-graduates with certain academic or practical qualifications or experience. To hold that university courses leading to such professions were not vocational because they were not a prerequisite of entry would unjustifiably restrict the Gravier definition. On the agreed facts set out in the Order for Reference it appears prima facie that the petitioner's course satisfies the test which I have set out as being the basis of Gravier in respect of the profession of electrical engineering. It gives him in large measure the necessary training and skills to be an electrical engineer, to be employed in electrical engineering and, if his degree is at the required level, to become an associate member of the professional institution which enables him to proceed to full membership. It is not in my opinion decisive against him that the course does not give him immediately or directly the qualification of 'chartered engineer.' It seems clear that the degree which entitles him to associate membership is an integral *411 part of the full qualification in addition to being a training for the particular profession. I do not accept the narrower interpretations urged by the German and Danish Governments namely that an additional requirement, a connection with the worker's activity as a worker, is to be read into Article 7(3). The freedom of movement of workers which Regulation 1612/68 sets out to facilitate is ' one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement' (third recital). That objective would obviously be in part frustrated if a Community

worker were not able to receive training in a new discipline, particularly at a more advanced level. As to the second part of the first question the petitioner and the Commission take the view that no distinction can sensibly be drawn between 'vocational training' and the phrase 'training in vocational schools' in Article 7(3) of Regulation 1612/68. The United Kingdom considers that the Court may well so conclude. In my view any educational establishment providing one or more courses in vocational training should be regarded pro tanto as a 'vocational school' for the purposes of Article 7(3).

Question 2 Is the concept of access to vocational training for the purpose of Article 7 of the EEC Treaty as interpreted in Case 152/82 Forcheri v. Belgium and Case 293/83 Gravier v. City of Liege to be interpreted as including payment by a member-State under provisions of its national law to or on behalf of a person undergoing such vocational training of either or both of (a) his tuition fees and (b) his maintenance? The question refers not to the charging of fees as in Gravier but to payments to or on behalf of a person of the relevant tuition fees. The reason is that in the United Kingdom, broadly speaking, university fees are paid not by the United Kingdom student but by his local education authority, whereas prior to September 1986 university fees had to be paid by the Community national student directly. I see no difference in principle between charging and not charging fees on the one hand and paying and not paying them on the other. Both are discriminatory within the meaning of Gravier. Does Gravier cover tuition fees as opposed to an enrolment fee? If it is a condition of access to the national training that tuition fees be paid, in my view plainly yes. In Gravier reference is made to an enrolment fee but, as the facts of the case and as Blaizot and Case 309/85 Barra v. Belgian State and City of Liege [FN8] make clear, what was in issue in all the Belgian cases was not the basic enrolment fee, which all students pay, but what was called at the hearing the 'foreign students' minerval' which could be up to 50 per cent. of the cost of *412 providing the training. That is essentially or at any rate substantially a tuition fee. FN8 [1988] 2 C.M.L.R. 409. In fact, by virtue of an amendment to the relevant United Kingdom rules which came into force on 1 September 1986, tuition fees for nationals of Community States (apparently irrespective of the nature of the university studies undertaken) have been paid by the United Kingdom authorities. For this reason the United Kingdom has not contested the claim that tuition fees should not be paid by the Community national student. It seems, however, that the amendment does not give the petitioner all the relief he seeks. The amendment was not retroactive. He was required to pay fees for the academic years 1984 and 1985, and there is a

suggestion that he may have had to pay them for 1986. Moreover his counsel indicated at the hearing that the amendment either does not or may not apply to those whose courses began before the amendment came into force. For the reasons given, on the basis that he was undertaking vocational training, those fees were not payable according to the Gravier decision, which as I have indicated in Blaizot I consider not to have merely a prospective effect but to cover students undertaking vocational training at the time of the Gravier judgment in respect of the whole of their courses. They are, accordingly, so far as paid, recoverable; if unpaid they are not payable. Payments for maintenance, the second part of Question 2, raise a different issue. The petitioner says with force, referring to Case 9/74 Casagrande v. Landeshauptstadt München [FN9] that conditions of access to vocational training include not only the conditions on which students are initially admitted to a course but also cover what is needed to make attendance at the course possible. The student must have the means of maintenance, books and equipment. Whereas national students receive maintenance grants, a student of another member-State has to provide for his own maintenance, a crucial factor in his decision whether to attend the course; there is, it is said, clearly discrimination. FN9 [1974] E.C.R. 773, [1974] 2 C.M.L.R. 423. The member-States which have submitted observations, and the Secretary of State in the national proceedings, insist that maintenance grants do not fall within the Gravier principle. In this case the Commission did not contend that they did so. Indeed, although it took a different position in earlier cases, it seems to me that it was ultimately accepting that they do not. The question is not an easy one, but for the reasons given in my Opinion tentatively in Gravier and below, I do not consider that the conditions of access referred to in Gravier cover such grants. In the first place the judgment in Gravier emphasises that the fees were ' a financial barrier to access to education' in the sense that if the student did not pay them, he could not receive the education. *413 Though of course I realise that if a student cannot eat or have a bed he cannot study, it does not seem to me that the means of subsistence have a sufficiently direct link with access to the course itself to fall within the principle of non-discrimination spelled out in Gravier. Direct access to a vocational training course is within the scope of application of Article 7 of the Treaty; the means of subsistence, in the absence of more specific Community provisions, are not. Is such a result inconsistent with the contention of the Commission, and the concession of the Secretary of State, that for someone who is a worker there can be no discrimination as to maintenance grants for vocational training for the purposes of Article 7(3) of Regulation 1612/68? In my view it is not. There is in the regulation a specific provision that a worker is entitled 'by the same right and under the same conditions as national workers' to have either 'access to vocational training' or, as in the French text, simply ' l'enseignement des écoles professionnelles.'

In the light of the French and other texts than the English, I consider that 'access to vocational training' means the same as 'l'enseignement des écoles professionnelles' and covers not merely the right to attend but all aspects of the pursuit of a vocational course. Taking account of the objectives of the regulation as spelled out in the recitals, it seems to me, for the reasons given in my Opinion in Lair, [FN10] that the right and conditions referred to in Article 7(3) include maintenance grants if they are given to national workers. FN10 Not yet reported. Article 7(2), if it is applicable, a question I also consider in Lair, is even clearer. A 'social advantage,' if it applies to vocational training or education other than vocational training, clearly covers maintenance grants. If, as I think, it covers at least general education it is unthinkable that a worker has a better right in respect of general education than he has in respect of vocational training. In my opinion the answer to (a) is yes and to (b) no.

Question 3 Is a person who is a national of, and has been resident in, one member-State and who enters another member-State ('the Host State') to be regarded as a 'worker' for the purposes of Article 7 of Regulation 1612/68 where: (a) The person concerned is engaged in full-time paid employment covered by the social security system as a trainee electrical engineer for a period of eight months before going to university; (b) Prior to entering the Host State the person concerned had already arranged that at the end of the period of eight months he would take up full-time studies in engineering at a university in the Host State; (c) He would not have been employed by his employer in the capacity in which he was employed if he had not been accepted for admission to the university; and *414 (d) He took up that employment in order to obtain experience of working in the electrical engineering industry? Since the ultimate decision as to whether the petitioner is a worker for the purposes of Article 7 of the regulation is for the national court, the question for this Court is whether for those purposes the term 'worker' properly interpreted covers a person who carries out the activities specified in the question. The petitioner contends that whilst with Ferranti he was a worker within the meaning of Article 48 of the Treaty. He satisfied the test in Case 66/85 Lawrie-Blum v. Land Baden-Württemberg [FN11] (judgment of 3 July 1986) as a person who 'for a certain period of time ... performs services for and under the direction of another person in return for which he receives remuneration.' He was in the same position as the trainee teacher in Lawrie-Blum, who was also undertaking 'practical preparation directly related to the actual pursuit of the occupation in point.' Moreover he was covered by the national social security system as a trainee engineer.

FN11 [1987] 3 C.M.L.R. 389. The petitioner and the Commission say that this is enough. Once a worker, he is a worker for all purposes and no period can be prescribed before he can be regarded as a worker either for the purposes of Article 48 or for the purposes of the regulation. His intentions in taking up this employment are irrelevant, as is the fact that it was from the beginning intended to be for a limited period before he began his university course. The United Kingdom, Germany and Denmark once again totally disagree with that conclusion. The regulation is designed to facilitate the taking-up of employment in, and the integration of migrant workers into, the host member-State. To regard a short-time period of employment, even if taken as a means of supplementing income or as useful to his course, whether before going to university or during vacations, as qualifying for student maintenance grants, perhaps over a very long period, is, it is said, to give a wholly unjustified interpretation to the object and purpose of Regulation 1612/68. It is plain that for the purpose of Article 48 'worker' is to be given a broad meaning (see Case 53/81 Levin v. Staatssecretaris Van Justitie). [FN12] It is equally clear that the work during his period at Ferranti had the indicia of a contract of employment referred to in Lawrie-Blum. For that purpose a worker may be part-time or receive less than the minimum subsistence wage specified by the national authorities. On the other hand Levin made it equally plain that the employment must be effective and genuine 'to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary' and that the rules as to freedom of movement for *415 workers 'guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity.' FN12 [1982] E.C.R. 1035 at 1050, [1982] 2 C.M.L.R. 454 at 468. A person who is a 'worker' for the purposes of Article 48 is entitled to accept an offer of employment actually made and to move into a member-State for that purpose. The Court has accepted that he also has the right to go in search of employment (Case 316/85 Centre Public v. Lebon, [FN13] judgment of 18 June 1987). A person seeking work does not have rights under Article 7(2) of the regulation and it does not seem to me to follow that even if a person has rights under Article 48 of the Treaty he necessarily has all the rights conferred by Article 7 of the regulation. FN13 Not yet reported. In my opinion for the purposes of applying for a student grant under Article 7 he must show that he does so genuinely in his capacity as a worker and he must be in the member-State in such capacity and for the purpose of being a worker. A person who has the fixed intention of going to a member-State in any event as

a student, and who has a place in a university or school for a fixed date and period, but who in order to gain useful experience does a short-term job, does not in my view qualify under Article 7(2) and (3) as a person who can claim a grant in his capacity as a worker. In a sense the work is ancillary to the course of study and although the collateral intentions of someone who is doing a genuine job in his capacity as a worker have been said to be irrelevant, the Court's decisions do not in my view preclude an examination of the reasons for his being in a member-State and doing temporary work and of the real capacity in which he makes a claim for a grant. It seems to me that a person who goes through the stages postulated in the question is going to university in the position of a student in the ordinary course; he is in no real sense a person who is exercising the rights of a worker to take up vocational training as a means of mobility or advancement. He does not go to the university in the latter capacity. Once it is clear that a person has moved as a genuine worker, has become a worker and then subsequently decided to apply for vocational training in his capacity as a worker, he is entitled to rely on Article 7(2) and (3) in relation to educational grants. In such a case it seems to me that to prescribe a limitation period during which he must have worked is not acceptable (Cases 249/83 Hoeckx v. Openbaar Centrum voor Maatschappelijk Welzijn, [FN14] and 122/84 Scrivner v. Centre Public D'Aide Sociale de Chastre.) [FN15] But in deciding whether a person is such a worker, if the matter is in doubt, it is in my view permissible to have regard to the length of the period during which he claims to have worked. That period must be *416 reasonable for the purpose and it seems to me that a year is, if not an infallible yardstick, a reasonable one for the purpose. FN14 [1985] E.C.R. 973, [1987] 3 C.M.L.R. 638. FN15 [1985] E.C.R. 1027, [1987] 3 C.M.L.R. 638. I do not accept that the Court's decision in Case 157/84 Frascogna v. Caisse de Depots et Consignations [FN16] prevents the imposition of a minimum period in order to decide whether a person is genuinely in a member-State in his capacity as a worker. That case was concerned with an old-age allowance for a person resident in a member-State. She satisfied the age requirements and the Court's decision was to the effect that an additional residence requirement was unlawful. By analogy, once it is clear that a person is a worker for the purposes of Article 7 of the regulation, a minimum qualifying period is not acceptable. It is different to have regard to a period of work to decide the essential question as to whether the person is a worker for the purpose of Article 7(2) and (3) of the regulation when dealing with student grants. FN16 [1985] E.C.R. 1739. In this case it was permissible to have regard to the fact that the petitioner had

only worked for eight months in a training capacity in deciding that he was not entitled to rights as a worker under Article 7(2) or (3) of the regulation.

Question 4 Where a worker ceases employment in order to take up, and does take up, a degree course in electrical engineering with the intention of becoming and practising as an engineer, is he entitled under Article 7(2) of Regulation 1612/68 to an allowance payable, under national law, to students in respect of either or both of (a) tuition fees and (b) maintenance? In view of the answer I propose to the third question, the fourth question does not call for a detailed reply. However, for the reasons given in my Opinion in Lair, I consider that a person who is a worker for the purpose of Article 7(2) and (3) is entitled to receive maintenance grants and to be charged or exempted from tuition fees on the same conditions as nationals, under paragraph (2) in respect of non-vocational training or under paragraph (3) in respect of training in vocational schools or retraining centres.

Question 5 Where the child of a national of one member-State is resident in the territory of another member-State ('the Host State') may he claim the benefit of Article 12 of Regulation 1612/68 where his parent, who now no longer works or resides in the Host State, was last resident or employed in the Host State before the birth of the child and the residence of the child in the Host State is not due to the fact of the parent's employment in the Host State? If Article 12 is read literally the petitioner says that he qualifies in any event. His French mother, through whom he can claim, was *417 employed in the United Kingdom and he is resident there. He further makes the point that it would be a great restriction on the mobility of labour if, when a parent and child lived for fifteen years in one member-State and then moved to live in another member-State, the child could not return to reside for the purposes of study or if children subsequently born could not do so and be entitled to the rights conferred by Article 12. The United Kingdom replies that the mother left the United Kingdom in 1965 before the United Kingdom's accession and that her children cannot have rights conferred by Community law which hinge on her employment and residence in the United Kingdom before that time. Moreover it cannot be right that children whose residence has no connection with the parent's employment in a member-State should be entitled to such rights if the object of Article 12 is to facilitate integration of a worker's family into the Host State where he is or was employed. Article 12 in my view is to be read as conferring a right on a child who has lived with his parents or parent in a member-State whilst the parent was employed there. The fact that the parent moves does not deprive such a child of his rights. On the other hand it seems to me that a child born subsequent to the termination

of the parent's residence and employment in a member-State is not given such a right by this Article. He was never part of the family in that State nor integrated into that State as part of a worker's family. His return and residence for the purpose of study is not as a child of someone who is employed nor as someone who was a child during the period of his parent's employment which has now come to an end. In any event I am not satisfied that the child of a national of another member-State who left the United Kingdom before the United Kingdom acceded to the Treaty has such rights. Accordingly, in my opinion the questions fall to be answered along the following lines: 1. (i) The term 'vocational training' includes a course of full-time study in electrical engineering at a university leading to the award of a degree which enables the holder of the degree to satisfy the educational requirements for associate membership of the professional body for electrical engineers, which in turn may enable him after completion of further practical experience to be registered as a professional engineer, alternatively if the course provides him with the skills and training necessary for such a profession, trade or vocation. (ii) Such training is training in a vocational school for the purposes of Article 7(3) of Council Regulation 1612/68. 2. Article 7 of the EEC Treaty as interpreted in Case 293/83 Gravier v. City of Liege prohibits discrimination on the grounds of nationality between nationals of the member-State where or from which the vocational training takes place and nationals of other member-States in respect of the payment to or on behalf *418 of the person undergoing such training of tuition fees but not of maintenance. 3. & 4. The term 'worker' for the purposes of education grants falling within Article 7(2) or 7(3) of Regulation 1612/68 does not include a person who enters a member-State and works for eight months prior to beginning on a certain date a university course for which he had already been accepted before entering that State in order to obtain experience in the field of his university studies and when the employer only agrees to give him such work on the condition that he has been accepted for admission to the university. Such person is not entitled to a grant under Article 7(2) or 7(3) of Regulation 1612/68, either for tuition fees or the maintenance. 5. The child of a national of one member-State is not entitled to the benefit of Article 12 of Regulation 1612/68 in respect of an educational grant when the relevant parent had ceased to work and reside in the host member-State before the child was born; nor is he so entitled when that parent worked in, but left, the Host State before its accession to the European Economic Community. The costs of the parties to the main action fall to be dealt with by the national court. The costs of the Governments which have submitted observations and the Commission are not recoverable. JUDGMENT [1] By an order of 27 June 1986, which was received at the Court on 31 July

1986, the Court of Session, Scotland, referred to the Court for a preliminary ruling under Article 177 EEC five questions relating in particular to the interpretation of Article 7 of the EEC Treaty and Articles 7 and 12 of Council Regulation 1612/68 on freedom of movement for workers within the Community. [2] The questions were raised in proceedings brought by Mr. Brown, the petitioner in the main proceedings (hereinafter referred to as 'the petitioner'), against the refusal of the Scottish Education Department (SED), an administrative department under the responsibility of the Secretary of State for Scotland, the respondent in the main proceedings, to award him a student's allowance. [3] It is apparent from the documents before the Court that the petitioner has dual French and British nationality. He lived in France until taking his baccalauréat and subsequently, at the beginning of 1984, he went to the United Kingdom. From 9 January to 14 September 1984, he worked for a company in Edinburgh. His employment is described in the order for reference as being ' preuniversity industrial training.' In October 1984, he commenced studies leading to a degree in electrical engineering at Cambridge University. *419 [4] The SED refused, on various grounds based on national law, to award the petitioner a student's allowance comprising, on the one hand, a maintenance grant, the amount of which is dependent upon the income of the student's parents and, on the other, direct payment of the tuition fees by the SED, irrespective of the income of the student or of his parents. [5] The petitioner accepts that he has no entitlement under the national regulations. Nevertheless, he brought an action against the SED's refusal, claiming that he was entitled to the award of an allowance under Community law by virtue of one or other of the following four provisions: Article 7 EEC, as interpreted by the Court in Case 293/83, Gravier, [FN17] and Article 7(3), Article 7(2), and Article 12 of Regulation 1612/68. FN17 [1985] E.C.R. 593, [1985] 3 C.M.L.R. 1. [6] Having been asked by the parties to request a preliminary ruling on a number of issues, the national court referred the following questions to the Court of Justice: 1. Does a course of full-time study in engineering at a university leading to the award of a degree which enables the holder of the degree to satisfy the educational requirements for associate membership of the professional body for electrical engineers which in turn may enable him, after completion of further practical experience, to be registered as a professional engineer and to use the title 'chartered engineer' constitute either or both of: (i) vocational training falling within the scope of the EEC Treaty for the purpose of Article 7 thereof as interpreted in Case 152/82 Forcheri v. Belgium and Case 293/83 Gravier v. City of Liege; and (ii) training in a vocational school referred to in Article 7(3) of Council Regulation 1612/68?

2. Is the concept of access to vocational training for the purpose of Article 7 of the EEC Treaty as interpreted in Case 152/82 Forcheri v. Belgium and Case 293/83 Gravier v. City of Liege to be interpreted as including payment by a member-State under provisions of its national law to or on behalf of a person undergoing such vocational training of either or both of (a) his tuition fees and (b) his maintenance? 3. Is a person who is a national of, and has been resident in one member-State and who enters another member-State ('the Host State') to be regarded as a 'worker' for the purposes of Article 7 of Regulation 1612/68 where: (a) the person concerned is engaged in full-time paid employment covered by the social security system as a trainee electrical engineer for a period of eight months before going to University; (b) prior to entering the Host State the person concerned had already arranged that at the end of the period of eight months he would take up full-time studies in engineering at a university in the Host State; (c) he would not have been employed by his employer in the capacity in which he was employed if he had not been accepted for admission to the university; and *420 (d) he took up that employment in order to obtain experience of working in the electrical engineering industry? 4. Where a worker ceases employment in order to take up, and does take up, a degree course in electrical engineering with the intention of becoming and practising as an engineer, is he entitled under Article 7(2) of Regulation 1612/68 to an allowance payable, under national law, to students in respect of either or both of (a) his tuition fees and (b) his maintenance? 5. Where the child of a national of one member-State is resident in the territory of another member-State ('the Host State') may he claim the benefit of Article 12 of Regulation 1612/68 where his parent, who now no longer works or resides in the Host State, was last resident or employed in the Host State before the birth of the child and the residence of the child in the Host State is not due to the fact of the parent's employment in the Host State? [7] 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 or discussed hereinafter only in so far as is necessary for the reasoning of the Court. The first question [8] In the first part of the first question, the national court wishes to know whether university studies of the kind described in the order for reference constitute vocational training within the scope of the EEC Treaty. [9] It must first of all be observed that, under Article 177 EEC, it is the responsibility of the Court of Justice to provide the national court with the necessary interpretative criteria to enable it to classify the studies in question. [10] It should then be noted that, as the Court ruled in Gravier, cited above, 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 is vocational training. It must also be made clear, as was ruled by the Court in its judgment of 2 February 1988 in Case 24/86, Blaizot v. University of Liege, [FN18] that in general university education fulfils those conditions, with the exception of certain special courses of study which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation. FN18 Not yet reported. [11] In the second part of the first question, the national court wishes to know whether universities which provide vocational training may be regarded as vocational schools within the meaning of Article 7(3) of Regulation 1612/68. [12] It should be observed that the fact that a teaching establishment provides a measure of vocational training is not sufficient to enable it *421 to be regarded as a vocational school within the meaning of that provision. The term vocational school has a narrower meaning and refers solely to establishments which provide only instruction interposed between periods of employment or else closely connected with employment, particularly during apprenticeship. That is not the case as far as universities are concerned. [13] It must therefore be stated in reply to the first question that university studies which prepare for a qualification for a particular profession, trade or employment or which provide the necessary training and skills for such a profession, trade or employment constitute vocational training, but that universities are not to be regarded as 'vocational schools' within the meaning of Article 7(3) of Regulation 1612/68. The second question [14] In the second question, the national court wishes to know whether the payment by a member-State to or on behalf of students of tuition fees charged by a university and grants for students' maintenance falls within the scope of the EEC Treaty for the purposes of Article 7. [15] It should be pointed out first of all that in Gravier the Court ruled, on the one hand, that unequal treatment based on nationality must be regarded as discrimination prohibited by Article 7 EEC if it falls within the scope of that Treaty and, on the other, that conditions for access to vocational training fall within the scope of that Treaty. In Blaizot the court further ruled that, in general, university studies fulfil the conditions required in order to be regarded as forming part of vocational training for the purposes of the EEC Treaty. [16] On the other hand, the Court did not have occasion to express a view in the aforementioned 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. [17] It is only to the extent to which assistance of that kind is intended to cover

registration or 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 principle of non-discrimination on the ground of nationality laid down by Article 7 EEC is applicable. [18] Subject to that reservation, it must 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 *422 provisions of the EEC Treaty (cf. judgment of 9 July 1987 in Joined Cases 281/85, 283, 284 and 285/85 and 287/85, Germany v. E.C. Commission [FN19]--Migration policy). FN19 [1988] 1 C.M.L.R. 11. [19] It must therefore be stated in reply to the second question that the payment by a member-State to or on behalf of students of tuition fees charged by a university falls within the scope of the EEC Treaty for the purposes of Article 7 thereof, but the payment of grants for students' maintenance does not. The third question [20] In its third question, the national court essentially wishes to know whether a national of another member-State who enters into an employment relationship in the Host State for a period of eight months with a view to subsequently undertaking university studies in that country in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university must be regarded as a worker for the purposes of Article 7(2) of Regulation 1612/68. [21] It must be emphasised in the first place that the concept of worker within the meaning of Article 48 EEC Regulation 1612/68 has a specific Community meaning. As the Court has already held, any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker (judgments in Case 53/81, Levin v. Staatssecretaris Van Justitie, [FN20] and Case 139/85, Kempf v. Staatssecretaris Van Justitie [FN21]). The essential characteristic of the employment relationship is that for a certain period of time a person performs a services for and under the direction of another person in return for which he receives remuneration (Case 66/85, Lawrie-Blum v. Land Badenwürttemburg [FN22]). FN20 [1982] E.C.R. 1035, [1982] 2 C.M.L.R. 454.

FN21 [1986] E.C.R. 1741, [1987] 1 C.M.L.R. 764. FN22 [1987] 3 C.M.L.R. 389. [22] Community law does not impose any additional conditions for a person to be classifiable as a worker and the member-States cannot unilaterally make the grant of the social advantages contemplated in Article 7(2) of Regulation 1612/68 conditional upon the completion of a given period of employment (CF. Case 157/84, Frascogna v. Caisse des Depots et Consignations [FN23]). FN23 [1985] E.C.R. 1739. [23] Accordingly, it must be stated in reply to the third question that a national of another member-State who enters into an employment relationship in the Host State for a period of eight months with a view to subsequently undertaking university studies there in the same field of activity and who would not have been employed by his employer if he had not already been accepted for *423 admission to university is to be regarded as a worker within the meaning of Article 7(2) of Regulation 1612/68. The fourth question [24] The first part of the fourth question, which relates to tuition fees, has become devoid of purpose in view of the reply given to the second question. The second part of the fourth question seeks to determine whether a worker in the particular circumstances described by the national court is entitled, by virtue of Article 7(2) of Regulation 1612/68, to an allowance payable to students in respect of their maintenance when he takes up a university course in the Host State. [25] It must be observed, as the Court has ruled in its judgment of today's date in Lair v. Universität Hannover (Case 39/86), [FN24] that a grant awarded for maintenance and for 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. FN24 Not yet reported. [26] In the same judgment, the Court has ruled that a national of another member-State who has undertaken university studies in the host State leading to a professional qualification, after having engaged in an occupation in that State, must be regarded as having retained his status as a worker, being entitled, as such, to the benefit of Article 7(2) of Regulation 1612/68, provided that there is a link between the previous occupation and the studies in question. [27] Nevertheless, it cannot be inferred from that finding that a national of a member-State will be entitled to a grant for studies in another member-State by virtue of his status as a worker where it is established that he acquired that status exclusively as a result of his being accepted for admission to university to

undertake the studies in question. In such circumstances, the employment relationship, which is the only basis for the rights deriving from Regulation 1612/68, is merely ancillary to the studies to be financed by the grant. [28] The answer to the fourth question must therefore be that a worker who is a national of another member-State and who entered into an employment relationship for a period of eight months with a view to subsequently undertaking studies in the host State in the same field of activity and who would not have been employed by its employer if he had not already been accepted for admission to university is not entitled, under Article 7(2) of Regulation 1612/68, to receive for the purpose of his studies an allowance payable to students who are nationals of the host State in respect of their maintenance. *424 The fifth question [29] It is relevant to the answer to be given to the fifth question that the petitioner was born after his parents had ceased to work and reside in the United Kingdom. As a result, he never had, in the United Kingdom, the status of a member of a worker's family. [30] The fifth recital in the preamble to Regulation 1612/68 indicates that that regulation is intended to establish freedom of movement for workers by, inter alia, eliminating obstacles to the mobility of workers, in particular as regards the worker's right to be joined by his family and the conditions for the integration of his family into that host country. It follows that Article 12 of the regulation must be interpreted as meaning that it grants rights only to a child who has lived with his parents or either one of them in a member-State whilst at least one of his parents resided there as a worker. It cannot therefore create rights for the benefit of a worker's child who was born after the worker ceased to work and reside in the host State. [31] It must therefore be stated in reply to the fifth question that a child of a national of one member-State who resides in the territory of another member-State may not claim the benefit of Article 12 of Regulation 1612/68 where his parent, who no longer resides in the host State, last resided there as a worker before the birth of the child. Costs [32] The costs incurred by the United Kingdom, the Federal Republic of Germany, the Kingdom of Denmark 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 on costs is a matter for that court. Order On those grounds, THE COURT, in reply to the questions submitted to it by the

Court of Session, Scotland, by order of 27 June 1986, HEREBY RULES: 1. University studies which prepare for a qualification for a particular profession, trade or employment or which provide the necessary training and skills for such a profession, trade or employment constitute vocational training. Universities are not to be regarded as 'vocational schools' within the meaning of Article 7(3) of Council Regulation 1612/68 on freedom of movement for workers within the Community. 2. The payment by a member-State to or on behalf of students of tuition fees charged by a university falls within *425 the scope of the EEC Treaty for the purposes of Article 7 thereof, but the payment of grants for students' maintenance does not. 3. A national of another member-State who enters into an employment relationship in the host State for a period of eight months with a view to subsequently undertaking university studies there in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university is to be regarded as a worker within the meaning of Article 7(2) of Regulation 1612/68. 4. A worker who is a national of another member-State and who entered into an employment relationship for a period of eight months with a view to subsequently undertaking studies in the host State in the same field of activity and who would not have been employed by his employer if he had not already been accepted for admission to university is not entitled, under Article 7(2) of Regulation 1612/68, to receive for the purposes of his studies an allowance payable to students who are nationals of the host State in respect of their maintenance. 5. A child of a national of one member-State who resides in the territory of another member-State may not claim the benefit of Article 12 of Regulation 1612/68 where his parent, who no longer resides in the host State, last resided there as a worker before the birth of the child.

(c) Sweet & Maxwell Limited [1988] 3 C.M.L.R. 403 END OF DOCUMENT