Report for the Hearing delivered in Case 316/85

I — Facts

1. Marie-Christine Lebon is a French national born on 1 July 1958. It is clear from the documents transmitted to the Court of Justice by the national court that Mrs Lebon has lived in Belgium since her birth. She resides in Courcelles where she lives with her parents and her child. Her father, a migrant worker, who is also a French national, worked in Belgium from 1949 to 1976 and has been in receipt of a miner's retirement pension since October 1977.

2. Mrs Lebon worked in France for two years (1979 to 1981). When she returned to Belgium she had no means of support and was therefore granted the minimum means of subsistence (the ‘minimex’) as from 3 May 1982 by the Centre public d'aide sociale (Public Social Welfare Centre), Courcelles (hereinafter referred to as ‘the Courcelles Centre’). However, by decision of 17 November 1982 the Courcelles Centre discontinued payment of the minimex on the ground of lack of evidence that Mrs Lebon was looking for work. In December 1982 Mrs Lebon was admitted for treatment to the Clinique Sainte Camille in Namur. From 28 January 1983 she was treated in the Club André Baillon, Liège. During the week she was given accommodation in a hostel for homeless women in Liège and returned to her parents' home in Courcelles at weekends, on public holidays and for the holidays.

3. On 31 March 1983 Mrs Lebon submitted a claim to the Courcelles Centre for the grant of the minimex. Taking the view that hostels are not residential institutions, the Courcelles Centre refused by letter of 18 April 1983 to grant the minimex on the ground that it lacked competence. On 16 May 1983 Mrs Lebon brought an action challenging that decision before the tribunal du travail (Labour Tribunal), Charleroi. That court held that the Courcelles Centre was territorially competent to entertain the claim lodged on 31 March 1983.

4. On appeal by the Courcelles Centre, the Labour Tribunal, Mons, held by judgment of 18 October 1985 that the Public Social Welfare Centre in Liège was territorially competent. It went on to hold that the Courcelles Centre had acted wrongfully in failing to discharge the obligation to forward Mrs Lebon's request for the minimex within three days (Article 7 of the Royal Decree of 30 October 1974) and was therefore liable for any consequent damage, with the result that ‘it is ... necessary to examine whether the Courcelles Centre's omission adversely affected the respondent and in particular whether the Public Social Welfare Centre of Liège would have been required to grant the respondent the minimex if the request had been duly forwarded to it’. In the light of that examination, the cour du travail found it necessary to determine whether or not Mrs Lebon fell within the scope of Regulation No 1612/68 of the Council either as a worker or as a descendant of a worker who is dependent on him. Only by relying on the principle of equal treatment enshrined in the EEC Treaty could Mrs Lebon satisfy the requirement that she ‘must have been ... resident in Belgium for at least the five years immediately preceding the grant of the minimum means of subsistence’, a requirement which she does not fulfil and which the Royal Decree of 8 January 1976 lays down for the grant of the minimex to Community nationals other than those of Belgian nationality.

5. Taking the view that in order to resolve the dispute it was necessary to interpret the relevant rules of Community law, the cour du travail, Mons, made an order on 18 October 1985 in which it decided, pursuant to Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:

‘(1) Where a national of a Member State of the European Economic Community has settled with his family within the territory of another Member State and remains there after having obtained a retirement pension, do his descendants who were living with him retain the right to equality of treatment granted by Regulation No 1612/68 when they have reached the age of majority, are no longer dependent upon him and do not have the status of workers?

2) If so, do such descendants continue to retain that right where they no longer live with the migrant worker and have returned to the Member State of which they are nationals and have lived there independently for a certain period, either for more than one year or for more than two years (see Article 5 of Regulation No 1251/70)?

3) If not, does the status of “dependent member of a worker's family” result from a factual situation, to be assessed in each specific case, or from objective circumstances independent of the will of the person concerned which make it necessary for him to have recourse to the support of the worker?

4) If not, in order that a national of a Member State may rely on his status as a worker in order to enter and establish himself within the territory of another Member State, is it sufficient for him to claim that he wishes or intends to work? Must there be actual evidence of that wish in the form of serious and genuine efforts to find work or must he hold an offer of employment?’

6. The order for reference was received at the Court Registry on 24 October 1985. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice, written observations were submitted on 10 January 1986 by the government of the Kingdom of Belgium, represented by F. Behets Wydemans, Director-General at the Ministry of Public Health and Family Affairs, on 10 January 1986 by the Commission of the European Communities, represented by its Legal Adviser, Joseph Griesmar, and on 16 January 1986 by the Netherlands Government, represented by I. Verkade, Secretary-General at the Ministry of Foreign Affairs.

7. On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

A — First question

1. The Belgian Government points out that if a practical answer is to be given to the first question, it is necessary to begin by specifying the precise content of the two fundamental concepts referred to in this question, namely the concepts of ‘worker’ and ‘dependent descendant’; the only suggestion it makes is that the questions should be examined in the following order: 4, 3, 1 and 2.

2. The Netherlands Government considers that the conditions in which the members of a family of a Community worker may claim equal treatment under Regulation No 1251/70 of the Commission are governed in every respect by Regulation No 1612/68 of the Council; moreover, in order to answer the question whether, in the specific circumstances of the case, Mrs Lebon may derive an indirect right from Article 7 of Regulation No 1612/68 to the grant of the minimex in Belgium, it is necessary to answer two preliminary questions. The first is whether Mrs Lebon falls within the category of members of the family of a former Community worker whose rights are guaranteed by Community law. The second is whether Mrs Lebon has a right of residence in Belgium which is guaranteed by Community law. In reply to those two questions, the Netherlands Government points out in the first place that, as the Court held in its judgment of 20 June 1985 in Case 94/84 (Deak [1985] ECR 1873 at p. 1881), the category of persons who may indirectly claim certain benefits on the basis of Article 7 of Regulation No 1612/68 is no wider than the category of persons on whom the Community legislature has conferred the right to install themselves with the Community worker concerned in view of the need to prevent the right of freedom of movement for workers from being impaired by an invisible restriction. Accordingly, it is only in relation to the persons referred to in Article 10 (1) of Regulation No 1612/68 that it is pertinent to ask whether the fact that a worker covered by the regulation cannot claim certain rights affects his desire to exercise the right to freedom of movement. Moreover, that consideration implies that the members of the family involved must be those to whom Community law guarantees a right of residence and who have exercised that right. Although certain members of the family can indirectly derive certain rights from Article 7 of Regulation No 1612/68, that is based, as is clear from the Court's judgment of 20 June 1985, on the consideration that the refusal to recognize certain rights may have the effect of preventing the Community worker from keeping the members of the family with him, which would create a non-material barrier to the free movement of workers. Although Title III of Regulation No 1612/68 thus guarantees a right of residence and certain other rights to the closest members of the family of a Community worker covered by the regulation, those rights are not conferred on all the members of the family, however closely they are related to the worker, but only to a given category which is defined in Article 10 (1) of Regulation No 1612/68. According to the Netherlands Government, Mrs Lebon, who is the daughter of a former Community worker, is not covered by the definition in Article 10 (1) of the aforesaid regulation inasmuch as it must be inferred from her request for the minimex that she is not dependent on her father. Accordingly, as she is not entitled to protection as a person referred to in Article 10 (1) of Regulation No 1612/68, Regulation No 1251/70 does not apply to her. The Netherlands Government maintains that, even on the assumption that Mrs Lebon falls within the category of persons defined in Article 10 (1) of Regulation No 1612/68, she cannot derive a right of residence of any kind from Regulation No 1251/70. The provisions of that regulation, in particular Articles 3 (1) and 5, apply only to persons residing with the worker in the host Member State at the time when the regulation becomes applicable to him. That is also in conformity with the purpose of that regulation, which is to ensure that persons who have previously acquired a right of residence guaranteed by Community law are able to remain in the country concerned. On the basis of the information in the order for reference, the Netherlands Government assumes that at the time when Mrs Lebon's father acquired a right of residence in Belgium under Regulation No 1251/70, Mrs Lebon was not living in that country. Nor can the provisions of Regulation No 1251/70 be interpreted as meaning that persons who were covered by the definition in Article 10 (1) of Regulation No 1612/68 at the time when they acquired a right of residence under that regulation can also derive a right of residence from Regulation No 1251/70 even where they have ceased to satisfy the conditions for coming within the definition in Article 10 (1) of Regulation No 1612/68.

3. The Commission points out in the first place that, according to Article 7 of Regulation No 1251/70, ‘the right to equality of treatment, established by Council Regulation (EEC) No 1612/68, shall apply also to persons coming under the provisions of this regulation’. Next, it observes that Regulation No 1251/70, by virtue of Articles 1 and 3 thereof, applies not only to the worker himself but also to the members of his family, as defined in Article 10 of Regulation No 1612/68. As far as the worker's descendants are concerned, Article 10 (1) (a) of Regulation No 1612/68 provides that they must be either under the age of 21 years or dependants. As regards the latter, the Commission relies on the judgment of 20 June 1985 in Case 94/84 Deak, in which the Court confirmed that the principle of equal treatment laid down in Article 7 of Regulation No 1612/68 is applicable to descendants of a worker who are dependent on him inasmuch as it is also intended to prevent discrimination against them (paragraph 22 of the judgment). In those circumstances, the Commission considers that the first question, in the terms in which it is couched, must be answered in the negative. A person whose ascendant exercises his right to remain in a Member State cannot, when he has reached the age of majority and is presumably no longer dependent on that ascendant, be regarded, simply because he is a descendant, as coming within the scope of Article 7 of Regulation No 1251/70 in the Member State concerned, even by virtue of the right to equal treatment laid down in Article 7 of Regulation No 1612/68, particularly as regards social advantages.

B — Second question

1. Since it considers that the first question should be answered in the negative, the Netherlands Government considers that it is no longer necessary to answer the second question submitted by the national court.

2. The Commission takes the view that the second question may be regarded as devoid of purpose. It none the less considers it useful to clarify the situation referred to in that question. Accordingly, it maintains that the fact that a descendant who is over the age of 21 and is dependent on a migrant worker ceases temporarily to reside with the latter in the latter's host country and establishes himself in the country of which he is a national (or in another Member State) in order to carry on there an occupation enabling him to support himself so that he is no longer dependent on his ascendant cannot have the effect of extinguishing any subsequent right to reacquire in the ascendant's host country the status of a ‘dependent descendant’ qualifying for equal treatment as regards social advantages, as provided for in Article 7 of Regulation No 1251/70 which refers to Regulation No 1612/68. In that regard, the Commission emphasizes in the first place that it does not follow from Article 3 of Regulation No 1251/70 that the members of the family who reside with the worker concerned and on whom the right to remain is conferred must necessarily and in all circumstances already have resided with him whilst he was carrying on an occupation. Secondly, that interpretation of Article 3 is not precluded by Article 5 of the same regulation. With regard to the members of the family referred to in Article 10 of Regulation No 1612/68 who install themselves for the first time or reinstall themselves (in the case of a descendant who again becomes a dependant) with a retired worker who exercises his right to remain in the country concerned, the two-year period referred to in Article 5 starts to run from the date on which those members of the family install themselves for the first time or reinstall themselves with that retired worker.

C — Third question

1. The Netherlands Government maintains that the term ‘dependent’ in Article 10 (1) of Regulation No 1612/68 means that the worker must ‘wholly or largely support’ the descendant. In this case, Mrs Lebon's income is insufficient to enable her to support herself, but her father is not supporting her either, which explains her request for social assistance. The Netherlands Government considers that it must therefore be inferred from that request for assistance that Mrs Lebon is not dependent on her father, with the result that she falls outside the scope of Article 10 (1) (a) of Regulation No 1612/68. The Netherlands Government adds that an interpretation to the effect that even a situation of that kind is covered by the concept of ‘dependent’ could not be explained by reference to Article 10 of the aforementioned regulation. It emphasizes that this would make it difficult to understand why children who have the ‘misfortune’ not to have to resort to public assistance but are capable of supporting themselves — otherwise than by working in the host country — can no longer remain with their parents by virtue of Article 10.

2. According to the Commission, the question whether a person is dependent on another, that is to say economically dependent as regards his means of support, is essentially a question of fact. The Commission considers that in making an assessment of the facts in each case, the national court may be obliged to bring into account ‘objective circumstances independent of the will of the person concerned which make it necessary for him to have recourse to the support of the worker’. However, the Commission draws attention to the fact that the scope of the third question is not very clear inasmuch as its wording seems to suggest that there is a distinction, or a contradiction, between the assessment of the facts in each case and the aforesaid objective circumstances. According to the Commission, the existence of objective circumstances of that kind, which make it necessary for the person concerned to have recourse to another's support, must not be an absolute condition for recognition of that person's status as a dependent member of the family, otherwise the right to reunite the family may be restricted by conditions which are not laid down in Article 10 of Regulation No 1612/68. In that regard the Commission emphasizes that, just as it is permissible for a national worker to continue to support and provide accommodation for a descendant who is over the age of 21 and prefers not to work although he would be able to earn a living by pursuing an occupation, it must be permissible in the name of equal treatment for a Community worker to continue to provide for such a descendant.

D — Fourth question

1. The Netherlands Government considers that the fact that a Community national moves freely from one Member State to another or evinces the intention to work by registering as a person seeking employment does not confer on him the status of a worker within the meaning of Regulation No 1612/68. According to the Netherlands Government, a distinction must be drawn between Community nationals who accept or pursue activities as employed persons and those who are looking for work. In its view, Regulation No 1612/68, as is clear from its wording, applies to Community nationals who accept or pursue activities as employed persons. It is also clear from the definition of the free movement of workers set out in Article 48 (3) (a), (b) and (c) of the EEC Treaty that a person looking for work may not on that ground alone be regarded as a worker within the meaning of that article. Those provisions are applicable only where an offer of employment is actually made. Moreover, when it adopted the various provisions governing freedom of movement for workers, the Council always started from the premise that only EEC nationals who are or have been employed may be regarded as workers, which explains the adoption of different provisions governing the right of residence in the event of unemployment that would otherwise be largely redundant. Finally, the Netherlands Government considers that even if Mrs Lebon is already working, the fact that she earns an inadequate income therefrom which obliges her to request the minimex shows that work which generates an income of that kind cannot confer on persons who engage in it the status of Community workers.

2. The Commission considers that Community law does not require nationals of a Member State wishing to enter, and establish themselves in, the territory of another Member State to show that they hold an offer of employment. Their right to seek employment in another Member State clearly implies that they do not already hold an offer of employment when they enter the territory of that other Member State and initially reside there at least on a temporary basis. That is clear: (a) from Article 5 of Regulation No 1612/68 which deals with cases where ‘a national of a Member State ... seeks employment in the territory of another Member State’; (b) from Article 3 (1) of Council Directive No 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (Official Journal, English Special Edition 1968 (II), p. 485) which provides that Member States are to allow the persons to whom Regulation No 1612/68 applies to enter their territory ‘simply on production of a valid identity card or passport’; and also (c) from the declaration on interpretation set out in the minutes of the Council meeting at which Regulation No 1612/68 and Directive 68/360 were adopted, according to which nationals of another Member State have a minimum of three months in which to look for employment. Only where a worker has still not found employment on the expiry of that period or needs to rely on public assistance may he be requested to leave the territory of the host Member State. The Commission considers, however, that it is insufficient for a national of a Member State to express the intention of acquiring the status of a worker; he must, in addition, unequivocally demonstrate his intention by making serious and sincere attempts to find work. In that regard, the Commission refers to the judgment of 23 March 1982 in Case 53/81 (Levin [1982] ECR 1035) in which the Court held, as regards the different formulations used in Article 48 of the EEC Treaty, Regulation No 1612/68 and Directive 68/360, that those formulations give expression to ‘the requirement, which is inherent in the very principle of freedom of movement for workers, that the advantages which Community law confers in the name of that freedom may be relied upon only by persons who actually pursue or seriously wish to pursue activities as employed persons’. Accordingly, the worker's intention must not, in the Commission's view, remain purely theoretical. On the contrary, a person seeking employment must put that intention into practice by taking positive steps which show that he is actually looking for work (registering with his local employment office, contacting employers who have vacancies, inserting advertisements in the press and so on).

J. C. Moitinho de Almeida

Judge-Rapporteur

1 Language of the Case: French.