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	Číslo (Kód CELEX): Number (CELEX Code):		61986J0197

	Název: Title:		JUDGMENT OF THE COURT OF 21 JUNE 1988. STEVEN MALCOLM BROWN V SECRETARY OF STATE FOR SCOTLAND. REFERENCE FOR A PRELIMINARY RULING FROM THE COURT OF SESSION, SCOTLAND. NON-DISCRIMINATION - ACCESS TO UNIVERSITY EDUCATIONS - TRAINING GRANTS. CASE 197/86.

	Publikace: Publication:		REPORTS OF CASES 1988 PAGES 3205

	Předmět (klíčová slova): Keywords		FREE MOVEMENT OF WORKERS;

	Související předpisy: Corresponding acts:		157E007;368R1612

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Gravier Case 293/83 Gravier v City of Ličge [1985] ECR 593 · Blaizot Case 24/86 Blaizot v University of Ličge [1988] ECR 379 · Forcheri Case 152/82 Forcheri v Belgium [1983] ECR 2323 · Levin Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035 · Kempf Case 139/85 Kempf v Staatssecretaris van Justitie [1986 ECR 1741 · Lawrie-Blum Case 66/85 Lawrie Blum v Land Baden-Württemberg [1986] ECR 2121 · Lair, Case 39/86 Sylvie Lair v Universität Hannover [1988] ECR 3161


	Plný text: Fulltext:		Ne

Fakta:
Mr Brown, who has French and British nationality, lived in France until 1984, when he went to the United Kingdom in order work with a company in Edinburgh before commencing studies at the Cambridge University leading to a degree in electrical engineering; Mr Brown’s parents had last worked and resided in the United Kingdom before his birth. Mr Brown had arranged for this employment, which has been described as ‘pre-university industrial training’, prior to coming to the United Kingdom. The employment, which Mr Brown had taken up in order to obtain experience of working in the electrical engineering industry, was from the beginning limited to an eight months’ period and Mr Brown would not have been employed if he had not been accepted for admission to the university. The present case arose when the Scottish Education Department refused to award Mr Brown a student’s allowance, comprising on the one hand a maintenance grant, on the other direct payment of tuition fees. Mr Brown challenged the refusal as being contrary to Community law and the Court of Session, Scotland, referred to the ECJ five questions on the interpretation of Article 7 of the EEC Treaty and Articles 7 (3), 7 (2) and 12 of Regulation 1612/68 Of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).
. The court wished to know (1) whether a full-time study in engineering at a university constituted (a) vocational training falling within the scope of the EEC Treaty and/or (b) training in a vocational school referred to in Article 7 (3) of Regulation No 1612/68; (2) whether the concept of access to vocational training was to be interpreted as including payment by a Member State under provisions of its national law to a person undergoing such training (a) tuition fees and/or (b) maintenance; (3) whether a person in the circumstances set out above was to be regarded as a worker in the meaning of Article 7 of Regulation 1612/68; (4) whether where a worker ceases employment in order to take up university studies was he entitled under Regulation 1612/68 to an allowance payable, under national law, to students in respect of (a) tuition and/or (b) maintenance; and (5) whether a person in the circumstances of Mr Brown was entitled to claim the benefit of Article 12 of Regulation 1612/68.

Názor soudu a komentář:
The Court addresses these questions in turn. The answer to the first question followed from the Court’s prior rulings: According to the definition of vocational training - falling in the scope of application of the Treaty - given in Gravier and under the Court’s ruling in Blaizot, university studies qualified as vocational training, except only for the case where they are pursued solely for the purpose of improving the student’s general knowledge rather than for preparation for an occupation. Vocational school, on the other hand “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.”As to the second question, the Court points out that - as had been established by its prior case-law ( Gravier; Blaizot) - unequal treatment in respect to access to vocational training constituted discrimination on the basis of nationality prohibited by Article 7 of the Treaty and that in general university training was part of vocational training. The question remained whether from this basis an entitlement to assistance from the host Member State could follow. The Court denies this with respect to assistance for maintenance which falls outside the scope of Article 7 and is a matter of social policy which is left to the Member States. However, assistance in regard of tuition fees charged for access to education has a more concrete relation to access to vocational training and thus falls within the scope of the EEC Treaty and is subject to the prohibition of discrimination of Article 7.
The third question relates to the concept of “worker” under Article 7 (2) of Regulation 1612/68. This has a “specific community meaning” under which “any person who pursues an activity which is effective and genuine (…) 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 her receives remuneration” ( Levin; Kempf; Lawrie-Blum). “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 advantage contemplated in Article 7 (2) of Regulation 1612/68 conditional upon the completion of a given period of occupational activity”. Consequently, also Mr Brown was to be regarded as a worker, irrespective of the limited time and of the purposes under which he pursued his employment.
Since the Court had already in its answer to the second question recognised an entitlement of students from other Member States to assistance with respect to tuition, it finds no need to answer the first part of question four. The second part of this question was whether a worker in the particular circumstances of the present case was entitled under Article 7 (2) of Regulation 1612/68 to an allowance payable to students with respect of the maintenance when he takes up university studies. In its judgement of the same date in Lair, the Court had ruled that a grant awarded for maintenance constitutes a social advantage under Article 7 (2) and that a worker taking up university studies retained his status as worker and was entitled to such benefit under Article 7 (2) provided that there is a link between the previous occupational activity and the studies in question. It would seem to follow that Mr Brown could claim a maintenance grant under Article 7 (2) of Regulation 1612/68. The Court, however, distinguishes the present case on the ground that it was “established that he acquired that status [of worker] as a result of being accepted for admission to university to undertake the studies in question”. Under these circumstances, it in fact appears that the employment and thus the status of a worker rather results from the undertaking of the studies and therefore - as the Court correctly points out - the employment relationship is “merely ancillary to the studies to be financed by the grant”. A worker (cf. the answer to the third question) thus is not entitled to all the benefits granted to workers, if the work has been taken up solely for the purpose of preparation for studies and not an occupation or employment.
The fifth question regarded the interpretation of Article 12 of Regulation 1612/68 which ensures equal access to education for children of workers who are employed in another Member State. The Court, however, finds that the plaintiff in the main proceedings could not rely on this provision. The Regulation presumed that the worker still resides in the host Member State at the time of the birth of his child. This interpretation follows from the purpose of the Regulation as it is expressed in the fifth recital in the preamble. The regulation “is intended to establish freedom of 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 the 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”.

Shrnutí (Summary of the Judgment):
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, HOWEVER, TO BE REGARDED AS "VOCATIONAL SCHOOLS" WITHIN THE MEANING OF ARTICLE 7 (3) OF REGULATION NO 1612/68 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY. THE TERM VOCATIONAL SCHOOL USED IN THAT PROVISION DOES NOT INCLUDE EVERY TEACHING ESTABLISHMENT WHICH PROVIDES A MEASURE OF VOCATIONAL TRAINING. IT REFERS SOLELY TO ESTABLISHMENTS WHICH PROVIDE ONLY INSTRUCTION SANDWICHED BETWEEN PERIODS OF EMPLOYMENT OR ELSE CLOSELY CONNECTED WITH EMPLOYMENT, PARTICULARLY DURING APPRENTICESHIP. THAT IS NOT THE CASE AS FAR AS UNIVERSITIES ARE CONCERNED.

2. WHILST IT IS TRUE THAT THE CONDITIONS FOR ACCESS TO VOCATIONAL TRAINING, INCLUDING UNIVERSITY STUDIES IN GENERAL, FALL WITHIN THE SCOPE OF THE TREATY FOR THE PURPOSES OF ARTICLE 7 THEREOF, ASSISTANCE GIVEN BY A MEMBER STATE TO ITS NATIONALS WHEN THEY UNDERTAKE SUCH STUDIES NEVERTHELESS FALLS OUTSIDE THE TREATY, AT THE PRESENT STAGE OF DEVELOPMENT OF COMMUNITY LAW, EXCEPT TO THE EXTENT TO WHICH SUCH ASSISTANCE IS INTENDED TO COVER REGISTRATION OR OTHER FEES, IN PARTICULAR TUITION FEES, CHARGED FOR ACCESS TO EDUCATION.

3. THE CONCEPT OF WORKER WITHIN THE MEANING OF ARTICLE 48 OF THE TREATY AND OF REGULATION NO 1612/68 HAS A COMMUNITY MEANING. 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. ACCORDINGLY, THE MEMBER STATES CANNOT UNILATERALLY MAKE THE GRANT OF THE SOCIAL ADVANTAGES CONTEMPLATED IN ARTICLE 7 (2) OF THE ABOVEMENTIONED REGULATION CONDITIONAL UPON THE COMPLETION OF A GIVEN PERIOD OF EMPLOYMENT. A NATIONAL OF A MEMBER STATE WHO ENTERS INTO AN EMPLOYMENT RELATIONSHIP IN ANOTHER MEMBER STATE FOR A PERIOD OF EIGHT MONTHS WITH A VIEW TO SUBSEQUENTLY UNDERTA
KING 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 THEREFORE TO BE REGARDED AS A WORKER WITHIN THE MEANING OF ARTICLE 7 (2) OF REGULATION NO 1612/68.

4. 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 WHICH MAY BE CLAIMED PURSUANT TO ARTICLE 7 (2) OF REGULATION NO 1612/68 BY A NATIONAL OF ANOTHER MEMBER STATE WHO HAS UNDERTAKEN, IN THE HOST STATE, AFTER HAVING ENGAGED IN AN OCCUPATION IN THAT STATE, STUDIES WHICH ARE LINKED, BY VIRTUE OF THEIR SUBJECT-MATTER, WITH THE PREVIOUS OCCUPATION. IT CANNOT, HOWEVER, BE INFERRED THAT A NATIONAL OF A MEMBER STATE IS ENTITLED TO A GRANT FOR STUDIES 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. THE EMPLOYMENT RELATIONSHIP, WHICH IS THE ONLY BASIS FOR THE RIGHTS DERIVING FROM REGULATION NO 1612/68, IS IN SUCH CIRCUMSTANCES MERELY ANCILLARY TO THE STUDIES TO BE FINANCED BY THE GRANT.

5. ARTICLE 12 OF REGULATION NO 1612/68 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.

Plný text judikátu (Entire text of the Judgment):