The State (Netherlands) v. Ann Florence Reed (Case 59/85) Before the Court of Justice of the European Communities ECJ

Transcription

1 The State (Netherlands) v. Ann Florence Reed (Case 59/85) Before the Court of Justice of the European Communities ECJ (Presiding, Everling P.C.; Koopmans, Bahlmann and Joliet PP.C.; Due, Galmot, Kakouris, O'Higgins and Schockweiler JJ.) Herr Carl Otto Lenz, Advocate General. 17 April 1986 Reference from the Netherlands by the Hoge Raad (Supreme Court) under Article 177 EEC. Regulations. Interpretation. Any interpretation of an EEC regulation which extends the meaning of a legal term (in casu, "spouse") on the basis of social developments must take into account the situation in the whole Community and not merely in one member- State. [13] Family. Spouse. Aliens. The term "spouse", forming part of a worker's family for the purposes of Article 10(1) of Regulation 1612/68, applies to marriage partners only and does not include cohabitation. [15] Family. Spouse. Aliens. Discrimination. "Social advantage." A member-state which permits the unmarried alien companions cohabiting with its nationals to reside in the Netherlands with their Dutch partner cannot refuse to grant the same advantage to the companions of migrant workers who are nationals of other member-states. [30] The Court interpreted Articles 7 and 48 EEC and Articles 7(2) and 10(1) of Regulation 1612/68 in the context of an English unmarried cohabiting couple living in the Netherlands where the male partner had a residence permit as a

2 Community migrant worker to the effect that the non-working partner could not claim a residence permit as a spouse under Article 10 of Regulation 1612/68 but could claim it as a "social advantage" enjoyed by Dutch nationals under Dutch law. Representation *449 W. T. Snoek, of the Amsterdam Bar, for the applicant. D. J. Keur, with him in the written proceedings I. Verkade, Permanent Under- Secretary at the Ministry of Foreign Affairs, for the respondent government. E. Traversa, of the Commission's Legal Department, and F. Herbert, of the Brussels Bar, for the E.C. Commission as amicus curiae. The following cases were referred to in the judgment: 1. Fiorini (Cristini) v. S.N.C.F. (32/75), 30 September 1975: [1975] E.C.R. 1085, [1976] 1 C.M.L.R Gaz:32/75 2. Ministere Public v. Mutsch (137/84), 11 July 1985: [1986] 1 C.M.L.R Gaz:137/84 3. Ministere Public v. Even (207/78), 31 May 1979: [1979] E.C.R. 2019, [1980] 2 C.M.L.R. 71. Gaz:207/78 4. Office National de L'Emploi v. Deak (94/84), 20 June 1985: not yet reported. The following further cases were referred to by the Advocate General: 5. The State v. Royer (48/75), 8 April 1976: [1976] E.C.R. 497, [1976] 2 C.M.L.R Gaz:48/75 6. Sotgiu v. Deutsche Bundespost (152/73), 12 February 1974: [1974] E.C.R Gaz:152/73 7. Sagulo (8/77), 14 July 1977: [1977] E.C.R. 1495, [1977] 2 C.M.L.R Gaz:8/77 8. Kenny v. Insurance Officer (1/78), 28 June 1978: [1978] E.C.R. 1489, [1978] 3 C.M.L.R Gaz:1/78 9. Morson and Jhanjan v. the State (35-36/82), 27 October 1982: [1982] E.C.R. 3723, [1983] 2 C.M.L.R Gaz:35/ Moser v. Land Baden-Württemberg (180/83), 28 June 1984: [1984] E.C.R. 2539, [1984] 3 C.M.L.R Gaz:180/ Württembergische Milchverwertung-Südmilch AG v. Ugliola (15/69), 15 October 1969: [1969] E.C.R. 363, [1970] C.M.L.R Gaz:15/ Marsman v. Firma M. Rosskamp (44/72), 13 December 1972: [1972] E.C.R. 1243, [1973] C.M.L.R Gaz:44/ The State v. Watson and Bellmann (118/75), 7 July 1976: [1976] E.C.R. 1185, [1976] 2 C.M.L.R Gaz:118/ Castelli v. O.N.P.T.S. (261/83), 12 July 1984: [1984] E.C.R Gaz:261/ Scrivner and Cole v. Centre Public D'Aide Social de Chaster (122/84), 27 March 1985: not yet reported. Gaz:122/84 *450

3 16. Forcheri v. Belgium (152/82), 13 July 1983: [1983] E.C.R. 2323, [1984] 1 C.M.L.R Gaz:152/ Diatta v. Land Berlin (267/83), 13 February 1985: [1986] 2 C.M.L.R Gaz:267/ Unger (Hoekstra) v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (75/63), 19 March 1964: [1964] E.C.R. 177, [1964] C.M.L.R Gaz:75/ Levin v. Staatssecretaris Van Justitie (53/81), 23 March 1982: [1982] E.C.R. 1035, [1982] 2 C.M.L.R Gaz:53/81 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Opinion of the Advocate General (Herr Carl Otto Lenz) A 1. The case before us today concerns the question whether the British companion of a British worker employed in the Netherlands can claim to be entitled to reside in the Netherlands under Community law in conjunction with the Dutch policy on aliens, set out in the 1982 Vreemdelingencirculaire (Circular on Aliens). The circular provides that a foreigner who has a stable relationship with a Dutch national and lives with him in the same household may as regards the right of residence be treated in the same way as a spouse, on condition inter alia that both parties are unmarried and appropriate accommodation and sufficient means of existence are provided for the foreign partner. The same applies to foreigners who have relationships with persons in the Netherlands enjoying a permanent right of residence there (such as refugees and persons who have been granted asylum). 2. In November 1981 Mr. W., an unmarried British national, came to the Netherlands to take up a temporary post with a subsidiary of a British undertaking. As a national of another EEC member-state (an EEC national) he was issued a residence permit in February 1982 which was valid until 5 November With him came his companion, the respondent in the main proceedings, also a British national and unmarried, with whom he had a stable relationship of some five years' standing. On 22 January 1982 she reported to the Dutch authorities responsible for dealing with aliens, giving her residence as that of Mr. W., and said that she was looking for work. 3. Since she was unable to find work, she applied on 24 March 1982 for a residence permit as Mr. W.'s companion. Although the *451 stability of the relationship was not questioned, the application was rejected in October 1982 on the basis of Dutch policy regarding aliens. Miss Reed applied for the review of that decision, and when that application was dismissed in January 1983 she brought the matter before the Raad van State (where it is apparently still pending). 4. Since her application for a review of the authorities' decision had not

4 suspensory effect, the respondent also applied to the President of the Rechtbank, The Hague, for an order that any measures for her deportation should remain in abeyance until such time as the issue of her residence permit should be resolved. That application was granted in December 1982 on the basis of Article 10 of Regulation 1612/68 on freedom of movement for workers within the Community, under which inter alia the spouse of a worker who is a national of one member-state and is employed in the territory of another member-state is entitled to take up residence with him there. The judge held that provision to be applicable on the basis that in view of modern developments companions in the sense outlined above should be treated as spouses. 5. The Netherlands State appealed against that decision to the Gerechtshof in The Hague. In the summer of 1983, while those proceedings were still pending, it appears that Mr. W. and the respondent returned to the United Kingdom without the intention of returning to the Netherlands. In any event, in November 1983 the Gerechtshof delivered a judgment upholding, in the result, the decision of the President of the Rechtbank. The judgment of the Gerechtshof was based on the Dutch policy regarding aliens, summarised above, and the principle to be drawn from Article 7 and Article 48(2) of the EEC Treaty to the effect that workers from member-states may not be discriminated against on grounds of nationality. The Gerechtshof held that as a result the companion of a worker from another member-state had the same right of residence as the companion of a Dutch worker. 6. The Netherlands State brought a further appeal to the Hoge Raad der Nederlanden. It argued that the Gerechtshof had applied Community law incorrectly: it had not taken into account the fact that not only the partners of Dutch persons but also the partners of other persons with an unrestricted right of residence in the Netherlands have a right to reside there. The distinction thus drawn is not between partners of Dutch persons and partners of workers from other member-states, but between partners of persons whose right to reside in the Netherlands is restricted in time. The Dutch policy on aliens could not, therefore, be said to discriminate on the basis of nationality. 7. The proceedings raised questions of Community law, regardless of whether the correct interpretation of the law was that favoured *452 by the Gerechtshof or, should that prove to be untenable, that adopted by the Rechtbank. By an order of 22 February 1985 it therefore stayed the proceedings and referred the following questions for a preliminary ruling under Article 177 EEC: 1. In the light of the provisions of Article 10 of Regulation 1612/68, does discrimination prohibited by Articles 7 and 48 of the EEC Treaty arise where, as part of its policy on aliens, a member-state treats a person who has a stable relationship with a worker who is a national of that Member State as the spouse of such a worker, but does not grant the same treatment to a person who has a stable relationship with a worker who is a national of another member-state but is employed and resides in the first-named member-state? 2. Does it make any difference to the answer to Question 1 if the member-state treats as a spouse not only a person who has a stable relationship with a national of that State but also a person who has a stable relationship with another person

5 who enjoys in principle an unrestricted right of residence in that member-state? 3. Must Article 10(1)(a) of Regulation 1612/68 be interpreted as meaning that in certain circumstances a person who has a stable relationship with a worker within the meaning of that provision is to be treated as his "spouse"? My views on the matter are as follows: B I I should like first of all to make the following preliminary remarks. 1. The first concerns the question whether in the main proceedings there is in fact any need for clarification of the problems of Community law raised. We know from the opinion delivered by the Procureur Generaal in the Hoge Raad that Mr. W. and the respondent have long since left the Netherlands and have no intention of returning there. Apart from the question of costs, the respondent therefore no longer has any legal interest in the proceedings. It may be asked, moreover, whether there is now any need for an interlocutory order of the kind made by the Rechtbank, since the respondent's application for the review of the administrative decision was rejected without any consultation of the Adviescommissie voor vreemdelingenzaken (Advisory Committee for matters regarding aliens) and her application to the Raad van State had suspensory effect, so that under Dutch law she could not be deported. In view of that, the Procureur Generaal considered that even the appeal proceedings had no real significance for the respondent, that the Netherlands State had no legal interest in having the *453 decision against it set aside, and that therefore the proceedings were in fact fictitious. Nevertheless, I do not think that we can hold that on those grounds the questions referred are not relevant to the decision of the national court and therefore decline to answer them. It is true that in principle--i need not produce authority for this--the Court of Justice proceeds with the greatest of caution in such matters. In this case it must not be forgotten that in his opinion the Procureur Generaal acknowledged that the State had an interest in the proceedings at least from the point of view of costs, on which no decision has yet been made, and that for it the matter had become a test case, in which important questions of Community law could be resolved which were also relevant in other cases. It should also be borne in mind that the reference for a preliminary ruling was made after the delivery of that opinion. It seems therefore that the Hoge Raad does not share the view of the Procureur Generaal that the proceedings are fictitious but considers--and that it is a matter for it alone to judge--that a decision on its part is still necessary. Under the second paragraph of Article 177 of the EEC Treaty we are bound by its view. In those circumstances it does not seem justifiable to speak of a clear lack of relevance or to suggest that the reference has been improperly made since the proceedings are contrived. There is therefore no real difficulty in holding the

6 reference admissible. 2. It is also possible to argue that the examination of the questions posed might be made unnecessary by clarification of a point of Community law not raised in those questions. The Court will recall that, as I mentioned in my summary of the facts of the case, under the 1982 Vreemdelingencirculaire not only Dutch people are entitled to take foreign companions and so help them to obtain a residence permit but also persons in possession of a permanent residence permit. The Dutch Government therefore argues that Dutch legislation makes a distinction not on the basis of nationality but on the basis of the quite different criterion of a permanent and irrevocable right of residence. In many cases, however, Community nationals do not have such a permanent right, as indeed in this case, since under Community law a residence permit is restricted to five years in the first instance, and only thereafter becomes indefeasible. In its observations the Commission has stated that from the point of view of Community law the opinion of the Dutch authorities is not entirely correct. In reality workers from other member-states have a right of residence based directly on the Treaty and its implementing provisions. A distinction must be drawn between that right and the residence permit provided for in Council Directive 68/360 of 15 October That permit is only proof of the right of residence and is thus not constitutive in its effect; *454 furthermore, Article 6(1)(b) of the directive lays down only a minimum period of validity. The relevant case law, it must be acknowledged, takes the same approach. Thus in its judgment in Case 48/75, Royer, [FN1] the Court emphasised that workers derive a right of residence directly from Article 48 of the Treaty; that, said the Court, was the assumption underlying Article 1 of Regulation 1612/68 and Article 4 of Directive 68/360. [FN2] The Court also held that a residence permit is issued only as proof of that right, that the right of residence is acquired independently of the issue of a residence permit, and that the grant of a permit therefore does not give rise to rights but has merely declaratory effect. [FN3] FN1 State v. Royer: [1976] E.C.R. 497, [1976] 2 C.M.L.R FN2 At paras. [19]-[27]. FN3 At paras. [24]-[33]. On that view, it may well be that Dutch law on aliens has been applied to Community nationals on the basis of an incorrect premise and that an appropriate clarification would enable the Dutch authorities to conclude that nationals of other member-states with a right of residence derived from the Treaty already have the right under the existing wording of the Vreemdelingencirculaire to bring with them a steady companion as referred to in paragraph 3 of the Vreemdelingencirculaire. The Court might therefore consider making such a clarification in its ruling. Since it is not certain, however, that the problems raised in the main proceedings

7 can in fact be resolved in that manner (at the hearing the appellant's representative emphasised the fact that under Community law only a temporary residence permit is issued in the first instance, and the Dutch law relies on that fact), the Court can hardly confine itself to such a clarification. The reference must therefore be dealt with in detail as it stands, in order to provide the Hoge Raad with the elements of Community law on which it may base its decision regarding the Vreemdelingencirculaire. The questions referred II 1. Questions 1 and 2 (which may be dealt with together) The central issue here is whether, assuming that workers from other member- States are not in fact covered by the second indent of paragraph 3.1. of the Vreemdelingencirculaire, they must, in accordance with the principle of equal treatment, be treated in the same way as Dutch workers in this regard. The Commission would answer in the affirmative. In its view the discrimination practised in the Netherlands is not compatible with Articles 7 and 48 EEC; the principle of freedom of movement *455 requires that workers from other member- States should be able to bring their companions with them. At the hearing the respondent's representative expressed the same view. The Dutch Government, on the other hand, argues essentially that freedom of movement is not simply a product of the application of the principle of equal treatment but presupposes independent rights. The principle of equal treatment for workers does not apply in all respects (for instance, with regard to voting rights or the education of the children of migrant workers in their native language, even though freedom of movement could be impeded as a result). In particular, it does not apply with regard to the right of residence of foreign workers and persons associated with them. The Treaty and Community secondary law provide for independent rights in that respect, and when Regulation 1612/68 speaks of a right of admission for workers' families it must be assumed that that is intended to create an exhaustive right and therefore does not apply to partners who are not mentioned. (a) It must be pointed out first of all in that regard that if it is to be assumed that under the Vreemdelingencirculaire Community nationals are not entitled to be accompanied to the Netherlands by their partner, although Dutch nationals do have such a right, the obvious conclusion is that there is discrimination on grounds of nationality, contrary to Article 7 EEC. The submission of the Dutch Government that there is no such discrimination since the real criterion is not that of nationality but that of the permanent right of residence is not entirely convincing. In that regard the Commission has referred to the judgments of the Court according to which Community law prohibits not only overt discrimination by reason of nationality but also covert forms of discrimination which, by the application of other criteria, lead to the same result (cf. the judgment of the Court in Case 152/73, Sotgiu [FN4]). Such discrimination might be held to exist in this case if despite the use of an apparently neutral

8 criterion nationals of other member-states are largely placed at a disadvantage by comparison with persons whose place of residence is the Netherlands. FN4 Sotgiu v. Deutsche Bundespost: [1974] E.C.R In the event, that issue need not be settled here, however, as we shall see in a moment. (b) It would not be correct to examine the problems raised in the main proceedings in the light only of the prohibition of discrimination laid down in Article 7 EEC. Indeed, the order of the national court itself speaks correctly of Article 7 in conjunction with Article 48 of the Treaty. The Court has held on a number of occasions that in the area of freedom of movement, at issue here, the principle laid down in Article 7 is given its concrete application in Article 48 (see for instance the judgments in Cases 8/77(Sagulo) *456 [FN5], 1/78 (kenny), [FN6] 35-36/82 (morson and jhanjan) [FN7] and 180/83 (moser) [FN8]). For the purpose of interpretation our inquiry should therefore focus on Article 48 and the secondary law based on that Article. FN5 Sagulo: [1977] E.C.R. 1495, [1977] 2 C.M.L.R FN6 Kenny v. Insurance Officer: [1978] E.C.R. 1489, [1978] 3 C.M.L.R FN7 Morson and Jhanjan v. State of the Netherlands: [1982] E.C.R. 3723, [1983] 2 C.M.L.R FN8 Moser v. Land Baden-Württemburg: [1984] E.C.R. 2539, [1984] 3 C.M.L.R (c) If Article 48 of the EEC Treaty is looked at more closely, it is hard to deny that the interpretation proposed by the Dutch Government is persuasive. The meaning of freedom of movement is indicated in Article 48(2). That paragraph speaks of the abolition of any discrimination based on nationality between workers of the member-states as regards employment, remuneration and other conditions of work and employment. That means that in the areas referred to workers from other member-states must be treated in the same way as nationals of the host State, and discrimination on the basis of nationality must cease. It is a classic example of the principle of non-discrimination which is a prohibition (Article 7 EEC) of measures which place nationals of other member- States at a disadvantage, whatever the legal position of nationals of the host State. The legal position of a Community national as a result of the prohibition of discrimination may thus vary according to the member-state, the sector and in some cases even the collective agreement in question. It corresponds to the position of the nationals of the host State. Attention must also be given to Article 48(3), under which workers have a number of rights (inter alia the right to move freely within the territory of member- States in order to take up employment, the right to remain in a member-state for

9 the purpose of employment and the right to remain in the territory of a member- State after having been employed in that State, subject to conditions to be laid down by the Commission). Examination of those provisions, with particular reference to the reservation in Article 48(3) and the wording of Article 48(3)(d), leads inescapably to the conclusion that those rights are granted to Community nationals in order to give practical effect to the principle of freedom of movement, and not to place them in the same position as the nationals of the host State, who enjoy comprehensive freedom of action in their home country, not a right to reside there for a specific purpose. The rights granted in Article 48(3) are not patterned on the rights of the nationals of the host State. They are positive rights which in principle apply in a uniform manner throughout the Community. Thus workers from other Community countries must *457 be treated in the same way as nationals of the host State not in all respects but only with regard to the matters referred to in Article 48(2). That principle was applied in Cases 15/69 (ugliola) [FN9] (inclusion of a period of military service in the calculation of an employee's seniority), 44/72 (marsman) [FN10] (protection against dismissal under the German Law on seriously disabled persons) and 152/73, Sotgiu (separation allowance paid to employees of the German Federal Post Office). With regard to the right of residence, on the other hand, there can be no question of a right to equal treatment; in that respect it is more appropriate to speak of the granting of independent rights. FN9 Württembergische Milchverwertung Südmilch-AG v. Ugliola: [1969] E.C.R. 363, [1970] C.M.L.R FN10 Marsman v. FA. M. Rosskamp: [1972] E.C.R. 1243, [1973] C.M.L.R (d) Similar and perhaps even clearer conclusions may be drawn in that regard from the relevant secondary law adopted under Article 49 of the EEC Treaty for the implementation of the principle of freedom of movement. With regard to the right of residence of workers from other member-states it is significant that in the second recital in the preamble to Council Directive 68/360 of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of member-states and their families [FN11] it is stated that "the rules applicable to residence should, as far as possible, bring the position of workers from other member-states and members of their families into line with that of nationals". In fact the directive contains provisions which show that foreign workers are subject not only to special procedures but also to special conditions, and that there is therefore no question of their being treated in the same way as nationals of the host State in all respects. Reference may be made to Article 4, under which a residence permit is to be issued inter alia solely on production of a confirmation of engagement from the employer, or to Article 7(2), under which on the renewal of the residence permit for the first time the period of residence may be restricted where the worker has been involuntarily unemployed in the State of residence for more than 12 consecutive months. The Court of Justice has also made it clear that no exception can be taken to such differences

10 in treatment in the form of special requirements for the nationals of other member-states (see judgment in Case 118/75 (Watson and Belmann) [FN12]). Mention should also be made in this connection of Commission Regulation 1251/70 on the right of workers to remain in the territory of a member-state after having been employed in that State. Article 2 in particular makes it clear that that right is certainly not merely a derivative of the principle of equal treatment. FN11 [1968] O.J. Spec. Ed FN12 [1976] E.C.R. 1185, [1976] 2 C.M.L.R. 552 *458. Council Regulation 1612/68 on freedom of movement for workers within the Community is of particular relevance; as the Dutch Government has correctly pointed out, its preamble makes it clear that a distinction must be drawn between the prohibition of discrimination, which applies in various respects (in particular "as regards employment, remuneration and other conditions of work and employment", referred to in the first recital, and with regard to "the actual pursuit of activities as employed persons and to eligibility for housing ", mentioned in the fifth recital), and other rights (in particular the right to move freely within the Community for the purpose of employment and the worker's right to be joined by his family). Accordingly, Part I of the Regulation is entitled "Employment and workers' families" (Parts II and III, which contain provisions implementing subparagraphs (a) and (d) of Article 49 may be ignored for present purposes). Title I ("Eligibility for employment ") is clearly based, as Articles 1 to 3 show, on the principle of equal treatment. The same is true of Title II (the title "Employment and equality of treatment" leaves no doubt), as can be seen from all three provisions of that title (Article 8 subject to reservations). Title III ("Workers' families ") [FN13] on the other hand, is characterised by the fact that Article 10(1) lists only specific persons who are entitled to install themselves with a worker and Article 10(2) requires member-states merely to facilitate the admission of family members other than those referred to in paragraph (1) who are dependent on the worker or live under his roof in the country of origin. Had that been intended to be a minimum standard, leaving open other possibilities under the principle of equal treatment, that could easily have been made clear. In reality, however, Title III contains no general principle of equal treatment but only requires equal treatment in specific areas, such as housing (Article 10(3)) and the education of workers' children (Article 12). FN13 This title is missing in the original text of Regulation 1612/68 in the original languages, [1968] O.J. L257/5. It was added by a corrigendum published in [1968] O.J. L295/12. It should also be pointed out that Articles 48 to 51 EEC, on freedom of movement for workers, make no mention of any right of workers' families to follow them. Regulation 1612/68 thus goes beyond the minimum content of the Treaty in this respect.

11 That certainly supports the conclusion drawn by the Dutch Government that the question of the right of members of the families of migrant workers and other persons connected with them to accompany them is governed exclusively by Article 10 of Regulation 1612/68. It is possible that the resulting restriction of a worker's right to take his companion with him to another member-state may impair his freedom of movement. The same might also be said, however, of other examples cited by the Dutch Government: the restriction of voting rights and the absence of any *459 right to the education of the children of migrant workers in their native language. Nor does the Court's case law justify a different conclusion, even if it is true, as the Commission has emphasised, that it is very broadly phrased in the interest of giving full effect to the principle of freedom of movement. If I understand correctly, that is true in particular with regard to the phrase "social advantages" used in Article 7 of Regulation 1612/68, which has been defined very broadly. Reference may be made to the judgments in Cases 152/73 Sotgiu, (separation allowance paid by the German Federal Post Office), 32/75, Cristini [FN14] (reductions for travel by rail), 261/83, Castelli [FN15] (guaranteed minimum income for relatives in the ascending line), 122/84, Scrivner and Cole [FN16] (social assistance) and 137/84, Mutsch [FN17] (use of languages in the courts). Case 152/82, Forcheri, [FN18] is somewhat similar, inasmuch as it concerns supplementary fees for foreign students and it was stated, with regard to the principle of equal treatment, that the right to free movement must not be interpreted narrowly. [FN19] FN14 Fiorini (Cristini) v. Societe Nationale des Chemins de Fer Francais: [1975] E.C.R. 1085, [1976] 1 C.M.L.R FN15 Castelli v. Office National des Pensions pour Travailleurs Salaries: [1984] E.C.R FN16 Scrivner and Cole v. Centre Public D'Aide Sociale de Chastre: Not Yet Reported. FN17 Ministere Public v. Mutsch: [1986] 1 C.M.L.R FN18 Forcheri v. Belgian State: [1983] E.C.R. 2323, [1984] 1 C.M.L.R FN19 Ibid., At Para. [11]. However, in view of the structure of Regulation 1612/68, problems such as that raised in these proceedings cannot be resolved by reference to Article 7. Whereas the judgments mentioned above concerned the delimitation of the rights of workers entitled to be admitted, this case concerns the delimitation of the category of persons entitled to be admitted. In this respect it cannot be assumed that the member-states have restricted their freedom of action further than is to be inferred from Regulation 1612/68, and it must be pointed out again that in

12 determining the category of persons entitled to accompany a worker the member-states went beyond the minimum duty laid down in the Treaty. It is not surprising, therefore, that no such liberal case law can be discerned in this area. Appeal to the principle of equal treatment alone, and the fact that in the judgment in Case 267/83 (Diatta) [FN20] it was emphasised that the phrase "install themselves" in Article 10 of Regulation 1612/68 must not be interpreted restrictively, is hardly sufficient to justify the far-reaching viewpoint of the Commission. FN20 Diatta v. Land Berlin: [1986] 2 C.M.L.R. 164 At Para. [17]. Finally, some attention must be given to the following point: If the issue of whether or not the companions of workers are entitled to accompany them were to be determined in accordance *460 with the prohibition of discrimination laid down in Article 7(2) of Regulation 1612/68, the result might differ from one member-state to another. The rules laid down in Article 10 regarding the persons entitled to accompany a worker, on the other hand, are uniform in all member-states. It is difficult, therefore, to find support in the scheme of Regulation 1612/68 for the proposition that such a right of accompaniment should be drawn from Article 7 of the regulation. The granting of such a right to companions would constitute an extension of the category of persons to whom Article 10 of the regulation applies, an extension which lies within the competence of the Council, not of the Court. (e) I think, therefore, that the first two questions must be answered in the manner proposed by the Dutch Government: if the Vreemdelingencirculaire is to be interpreted in such a manner that workers from other member-states are not in any event covered by the second indent of paragraph 3.1, it cannot be challenged on the basis of the prohibition of discrimination laid down in Article 7 in conjunction with Article 48 of the EEC Treaty. 2. Question 3 The third question concerns the interpretation of Article 10 of Regulation 1612/68, which is worded as follows: 1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one member-state and who is employed in the territory of another member-state: (a) his spouse and their descendants who are under the age of 21 years or are dependents; (b) dependent relatives in the ascending line of the worker and his spouse. 2. Member-States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.... On this point the Dutch Government and the Commission are for the most part in agreement, since they both take the view that the word "spouse" as used in that provision does not include a partner such as the respondent in the main

13 proceedings. At the hearing Counsel for the respondent, on the other hand, argued in favour of a broad interpretation, based in particular on the point that people who simply live together nowadays would at the time when Regulation 1612/68 was adopted in all likelihood have chosen to be legally wed. To ignore that when interpreting the right of accompaniment provided for in Article 10 of Regulation 1612/68 would be to restrict freedom of movement, and the principle would *461 thus have a more limited application today than it had a number of years ago. (a) It must be pointed out first of all, as all the parties agree, that the term "spouse" has a specific meaning in Community law. Article 10 thus does not refer to national law, that is to say, the law of the host State or, in accordance with the principles of private international law, the law of the State of origin of the person concerned. There is no indication of any intention to make such reference; that is normally done very explicitly in Community law. Moreover, were it otherwise there would be divergence in the application of the law on an issue important for freedom of movement, which would be just as unacceptable as divergence with regard to the term "worker " was held to be in the judgments in Cases 75/63 (unger) [FN21] and 53/81 (levin). [FN22] FN21 Unger (Hoekstra) v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten: [1964] E.C.R. 177, [1964] C.M.L.R FN22 Levin v. Staatssecretaris Van Justitie: [1982] E.C.R. 1035, [1982] 2 C.M.L.R (b) There is much to be said, moreover, for the conclusion that the term in question was originally intended, on the adoption of Regulation 1612/68, to be a term of law, that is to say that the term "spouse" meant only a partner to a valid marriage. I say that not only because it was much less common at that time for couples simply to live together; reference may also be made to the other terms used in that connection (descendants, relatives in the ascending line) and in particular to the fact that with regard to more distant family members Article 10(2) simply requires member-states to "facilitate" their admission, from which it can hardly be concluded that partners who have no marital or family relationship to the worker should be placed in a better position. (c) If, however, the question is raised whether in view of subsequent developments (the Commission, too, speaks of the tendency in a number of member-states to treat persons living together as man and wife in the same way as married couples for many purposes, for example fiscal and social legislation) a different interpretation of the legislature's intention, based on the dynamic approach, is now required it is difficult, taking into account all aspects of the issue, to reply in the affirmative. Certainly it is not sufficient, in support of such an interpretation, simply to refer to the remark in the judgment in Case 267/83 Diatta, [FN23] mentioned above, that in the interest of freedom of movement Article 10 of Regulation 1612/68 must not be interpreted restrictively. It was made solely in connection with the question in

14 what circumstances a person could be said to live with a worker for the purposes of Article 10, in a case involving spouses in the legal sense. FN23 [1986] 2 C.M.L.R. 164 *462. The argument against such a broad interpretation of Article 10 is given further support by the fact that companions can certainly not be treated in the same way as spouses in all member-states in view of the fact that their cultural, social and ethical traditions vary widely in some respects. If the term in Community law were nevertheless interpreted as broadly as the respondent suggests the result could be indirect discrimination against nationals of countries whose laws do not permit them to bring foreign companions to live with them. Serious doubts also arise, it could be said, in the matter of legal certainty. As the legal situation in the Netherlands shows, if companions are to be treated in the same way as spouses it is imperative to lay down limits, criteria and conditions (in particular with regard to the duration and nature of the relationship). These are certainly a matter for the legislature, and can hardly be determined by the Court of Justice in the course of the interpretation of a regulation intended to cover other cases. (d) Article 10 of Regulation 1612/68 must therefore be interpreted as proposed by the Commission and the Dutch Government, that is to say it must be held that a person who has a stable relationship with a worker cannot be treated as a "spouse". C In view of all the foregoing I propose that the Court should reply in the following manner to the questions raised by the Hoge Raad: (a) The prohibition of discrimination laid down in Article 7 in conjunction with Article 48 EEC does not mean that a member-state which, in accordance with its policy on aliens, treats a person who has a stable relationship with a worker who is a national of that State or has in principle an unrestricted right of residence there as his spouse must grant the same treatment to a person who has a stable relationship with a worker who is a national of another member- State but is employed and resides in the first member-state. (b) Article 10(1)(a) of Regulation 1612/68 is not to be interpreted as meaning that in certain circumstances a person who has a stable relationship with a worker within the meaning of that provision is to be treated as his spouse. JUDGMENT [1] By an order of 22 February 1985, which was received at the Court on 1 March 1985, the Hoge Raad der Nederlanden referred to the Court for a preliminary ruling under Article 177 EEC three *463 questions on the interpretation of Articles 7 and 48 EEC and Article 10 of Council Regulation 1612/68 on freedom of movement for workers within the Community. [2] The questions arose in the course of proceedings concerning the rejection, by

15 decision of the State Secretary of Justice of 21 October 1982, of the application for a residence permit made by Ann Florence Reed, the applicant in the main proceedings, as the companion of a worker from another member-state. [3] It appears from the documents before the Court that under the Vreemdelingencirculaire 1982, which sets out Dutch policy on aliens, an alien who has a stable relationship with a Dutch national, with an alien who has been admitted to the Netherlands as a refugee or as a person entitled to asylum, or with an alien who is a holder of a permanent residence permit, may under certain conditions be permitted to reside in the Netherlands. In particular, the persons concerned must live together as one household, or have lived together as such before arriving in the Netherlands, be unmarried and possess adequate means of support for the foreign partner and appropriate accommodation. [4] Miss Reed, an unmarried British national, arrived in the Netherlands on 5 November 1981 and registered for employment on 22 January 1982; she did not, however, succeed in finding a job. On 24 March 1982 she applied for a residence permit on the ground that she was living with Mr. W. Mr. W., who is also an unmarried British national, has worked in the Netherlands since 5 November 1981 and on 23 February 1982 obtained a residence permit as a national of a member-state of the European Economic Community valid until 5 November On the date of the contested decision Miss Reed and Mr. W. were living together in the Netherlands and had a stable relationship of some five years standing. [5] Miss Reed applied for a review of the decision of the State Secretary of Justice rejecting her application for a residence permit. Since that application did not have suspensory effect, Miss Reed brought summary proceedings before the President of the Rechtbank (District Court), The Hague, for an order restraining the State of the Netherlands from deporting her pending a final decision on her application for a residence permit. The President of the Rechtbank granted her application on the ground that in applying Article 10 of Regulation 1612/68 to circumstances such as those of this case unmarried companions must be treated in so far as is possible as spouses. [6] On appeal by the State of the Netherlands the Gerechtshof (Regional Court of Appeal), The Hague, upheld the order of the President of the Rechtbank, but on different grounds. According to the judgment of the Hoge Raad, the Gerechtshof considered that in view of the fact that discrimination on grounds of nationality *464 between workers of the member-states was prohibited by Articles 7 and 48(2) EEC the policy of the Netherlands State with regard to aliens, set out in the Vreemdelingencirculaire, must permit the companion of a worker who is a national of another member-state and is employed in the Netherlands to reside with that worker under the same conditions as those applied to the companion of a worker of Dutch nationality. The State brought a further appeal to the Hoge Raad against the decision of the Gerechtshof. [7] The Hoge Raad considered that the proceedings raised questions concerning the interpretation of Community law. It therefore stayed the proceedings until such time as the Court of Justice should have delivered a preliminary ruling on the following questions:

16 1. In the light of the provisions of Article 10 of Regulation 1612/68, does discrimination prohibited by Articles 7 and 48 of the EEC Treaty arise where, as part of its policy on aliens, a member-state treats a person who has a stable relationship with a worker who is a national of that member-state as the spouse of such a worker, but does not grant the same treatment to a person who has a stable relationship with a worker who is a national of another member-state but is employed and resides in the first-named member-state? 2. Does it make any difference to the answer to Question 1 if the member-state treats as spouses not only a person who has a stable relationship with a national of that State but also a person who has a stable relationship with another person who enjoys in principle an unrestricted right of residence in that member-state? 3. Must Article 10(1)(a) of Regulation 1612/68 be interpreted as meaning that in certain circumstances a person who has a stable relationship with a worker within the meaning of that provision is to be treated as his "spouse"? The third question [8] The third question should be dealt with first. [9] Miss Reed argues that, in the light of legal and social developments, in applying Article 10 of Regulation 1612/68, and in particular the word "spouse " in that Article, to circumstances such as those of this case unmarried companions must in so far as is possible be treated as spouses. [10] The Dutch Government points out that the third question concerns the interpretation of a provision of a regulation which has direct effect in all the member-states; that provision must therefore be interpreted in the Community context. The Community legislature used the word "spouse" in the sense given to that word in family law. When, in support of a dynamic interpretation, reference is made to developments in social and legal conceptions, those developments must be visible in the whole of the Community; such an argument cannot be based on social and legal developments in only one or a few member-states. There is no reason, therefore, *465 to give the term "spouse" an interpretation which goes beyond the legal implications of that term, which embrace rights and obligations which do not exist between unmarried companions. [11] The Commission points out that there is no provision of Community law which defines the terms "spouse" and "marital relations". In the Community as it now stands it is impossible to speak of any consensus that unmarried companions should be treated as spouses. According to the Commission, therefore, the problem cannot be resolved by means of a broad construction of Article 10 of Regulation 1612/68. [12] According to Article 189 EEC, Regulation 1612/68 has general application, is binding in its entirety and is directly applicable in all member-states. [13] It follows that an interpretation given by the Court to a provision of that regulation has effects in all of the member-states, and that any interpretation of a legal term on the basis of social developments must take into account the situation in the whole Community, not merely in one member-state. [14] Article 10(1) of Regulation 1612/68 provides that certain members of the

17 "family" of a worker, including his "spouse", irrespective of their nationality, "have the right to install themselves with a worker who is a national of one member- State and who is employed in the territory of another member-state". [15] In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation, it must be held that the term "spouse" in Article 10 of the regulation refers to a marital relationship only. [16] The answer to the third question must therefore be that Article 10(1) of Regulation 1612/68 cannot be interpreted as meaning that the companion, in a stable relationship, of a worker who is a national of a member-state and is employed in the territory of another member-state must in certain circumstances be treated as his "spouse" for the purposes of that provision. The first and second questions [17] Since the first and second questions referred to the Court by the Hoge Raad are closely related, they may be dealt with together. [18] The applicant in the main proceedings considers that Dutch policy with regard to the unmarried companions of workers who are nationals of another member-state is incompatible with the EEC Treaty; it also results in discrimination in relation to Regulation 1612/68, inasmuch as it authorises a Dutch national to bring to the Netherlands a companion of foreign nationality whereas that possibility is not open to a national of another member-state. *466 [19] The Dutch Government argues in the first place that the right of EEC nationals, who have a right of residence under Community law, to bring with them their family, as set out in Article 10 et seq. of Regulation 1612/68, is not based on a situation comparable to that of workers who are nationals of the host State, and thus is not a result of the principle of non-discrimination but rather an independent right granted under Community law, the content and scope of which must be found within the four corners of Regulation 1612/68. Secondly, it was not because of a difference of nationality that the applicant in the main proceedings and Mr. W. were not treated in the same manner as Dutch nationals, but because of their legal position with regard to the right of residence; that is confirmed by the fact that Dutch policy in that respect makes no distinction between Dutch nationals and aliens who hold a permanent residence permit. [20] The Commission observes that the Dutch policy with regard to aliens constitutes discrimination prohibited by Articles 7 and 48 EEC in so far as a worker who is a national of another member-state and is employed in the Netherlands is not formally treated in the same manner as a worker of Dutch nationality with regard to the admission to the Netherlands of his companion, where the latter does not have Dutch nationality. Any member-state which authorises the entry of the unmarried companions of its nationals on the ground that in the context of a stable relationship such a companion should be treated as a spouse, must place workers who are nationals of other member-states and are employed in its territory in the same position as its own nationals in that regard. Furthermore, it does not appear from the documents placed before the Court that

18 the State of the Netherlands has argued that the discrimination in question is justified on objective grounds. [21] The Court notes that Article 7 EEC provides that "within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited". That principle, laid down in a general manner in Article 7, is applied specifically with regard to freedom of movement for workers within the Community in Article 48. [22] It must therefore be ascertained whether the right to be accompanied by an unmarried companion falls within the scope of the Treaty and is thus governed by the principle of non-discrimination laid down in the provisions referred to above. [23] In view of the fact that Mr. W. is a worker, as appears from the judgment of the national court, that question must be examined in the light more specifically of Articles 48 and 49 EEC and the provisions of secondary legislation implementing those Articles, in particular Council Regulation 1612/68. *467 [24] Article 7(2) of Regulation 1612/68 provides that in the host State a worker who is a national of another member-state must "enjoy the same social and tax advantages as national workers". [25] The Court has emphasised, in particular in Case 32/75 (Cristini v. S.N.C.F. [FN24]), that the phrase "social advantages" in Article 7(2) must not be interpreted restrictively. FN24 [1975] E.C.R. 1085, [1976] 1 C.M.L.R [26] As the Court has repeatedly held, the purpose of Article 7(2) of Regulation 1612/68 is to achieve equal treatment, and therefore the concept of social advantage, extended by that provision to workers who are nationals of other member-states, must include all advantages "which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other member countries therefore seems suitable to facilitate their mobility within the Community" (Case 207/78, Ministere Public v. Even [FN25] and Case 94/84, Office National de L'Emploi v. Deak [FN26]). FN25 [1979] E.C.R. 2019, [1980] 2 C.M.L.R. 71. FN26 Not yet reported. [27] The Court held in Cristini and in Case 137/84 (Ministere Public v. Mutsch [FN27]) that the possibility for a migrant worker of obtaining fare reductions granted to large families or of using his own language in proceedings before the courts of the member-state where he resides fall within the concept of a social advantage for the purposes of Article 7(2) of Regulation 1612/68. FN27 [1986] 1 C.M.L.R. 648.