C-389/87

Mr President, 4. In Mr Echternach's case, the fact that he Members of the Court, had no residence permit of the type referred to in the Vreemdelingenwet was due to the fact that he was exempted from that requirement by reason of his father's 1. The difficulties encountered by Mr position as an official of the European Echternach and Mr Moritz, both German Space Agency (hereinafter referred to as nationals, in obtaining finance for their 'the ESA') at Noordwijk, in the studies in the Netherlands under the Netherlands. Because of his status as an Netherlands Wet op de Studiefinanciering international civil servant, Mr Echternach (Law on Study Finance, hereinafter referred senior and the members of his family to as the 'Study Finance Law') prompted the belonged, in the words of the request for a Commissie van Beroep Studiefinanciering preliminary ruling, 'to the category of aliens (Study Finance Appeals Committee, here­ to whom privileges are granted by virtue of inafter referred to as 'the Appeals an international agreement and to whom the Committee'), Groningen, to refer to the Netherlands Vreemdelingenwet is not Court a number of very detailed questions applicable'. ' The request also states that the in each of the two cases. ESA issued to Mr Echternach 'an identity document which exempted him from the requirement to have authorization to reside in the Netherlands within the meaning of 2. The refusal by the competent the Vreemdelingenwet'. 2 Netherlands ministry to grant study finance to Mr Echternach and to Mr Moritz was 5. In Mr Moritz's case, the reason why the based on similar grounds: they were not Netherlands authorities considered that he Netherlands nationals, nor did they belong did not have a residence permit allowing to a category of aliens treated in the same him to be placed, for the purposes of the way as Netherlands nationals under the Study Finance Law, in the category of Study Finance Law. More precisely, it foreign students treated in the same way as appears that the Netherlands authorities national students was that, after having lived considered that neither of them held a since 1972 with his parents in the residence permit as referred to in the Netherlands, where his father worked, he Vreemdelingenwet (Aliens Law), to which returned to the Federal Republic of the Study Finance Law refers for the Germany, still with his parents, in 1985, and purpose of defining the categories of foreign then came back alone to the Netherlands in students to be treated in the same way as 1986 in order to continue his studies. On his national students. return to the Netherlands, he was issued with a residence permit only for a temporary purpose. Under the Study Finance Law, such a document does not 3. Besides those points of similarity, there entitle its holder, if a student, to be treated were a number of differences between Mr in the same way as Dutch students. Echternach's situation and that of Mr Moritz. 1 — Request for a preliminary ruling in the Echternach case, p. 2 of the English translation. * Original language: French. 2 — Ibid.

6. Through the detailed and complex I — Substantive scope of Article 12 of the questions put by the Appeals Committee, a regulation number of legal questions may be discerned, some of which are common to both cases while others are specific to one case or the other. 8. Questions 5 and 6 in the Echternach case and Questions 1 and 5 in the Moritz case relate to two aspects of the substantive scope of Article 12 of the regulation. The first concerns the nature of the studies to which that provision relates; its first paragraph provides that: '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 7. First of all, the Court will have to State's general educational, apprenticeship consider to what extent a system for and vocational training courses under the providing public financial assistance for same conditions as the nationals of that studies may fall within the scope of Article State, if such children are residing in its 12 of Regulation (EEC) No 1612/68 of the territory'. The second aspect is the content Council of 15 October 1968 on freedom of of the concept of conditions of access, and movement for workers within the more particularly the question whether the Community (hereinafter referred to as 'the principle of equal treatment as regards regulation'). 3That question will therefore conditions of access laid down in Article 12 concern the substantive scope of that of the regulation can be relied upon with provision. Secondly, in the Echternach case, regard to a system of study finance such as the Court will have to determine whether an that set up under the Study Finance Law. official of the ESA is deprived, by virtue of that capacity, of his status as a migrant worker for the purposes of Community law and prevented, together with his family, from enjoying the rights conferred by that 9. In recent years, the Court has clarified a status. Thirdly, in the Moritz case, the number of points relating to the definition Court will have to decide whether the rights in Community law of vocational training or which a child derives in the host Member education. State from his parent's status as a migrant worker are affected by the fact that the parent leaves that State and the child returns to continue his studies after a brief absence. The two latter points will require the Court 10. First of all, in its judgment of 13 to define the persons covered by Article 12 February 1985 in Gravier, the Court stated of the regulation. Fourthly, and lastly, the the general rule that Court will have to rule whether a child of a migrant worker may be prevented from claiming any financial assistance for his studies from the host Member State by reason of requirements relating to his right 'any form of education which prepares for a to reside in that State. qualification for a particular profession, trade or employment or which provides the 3 — OJ, English Special Edition 1968 (II). p 475. necessary training and skills for such a

and that:

It then stated that 'it is accepted in all the Member States that some university studies are indeed intended to provide students, at the academic level, with certain knowledge, training and skills as preparation for specific occupations'. 'in general, university studies fulfil these criteria. The only exceptions are certain courses of study which, because of their It also pointed out that: particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occu­ 7 pation'. 'Article 10 of the European Social Charter, to which most of the Member States are 5 — Case 24/86 Blaizot v University of Liège [1988] ECR 379, paragraph 17. 4 — Case 293/83 Gravier v City of Liège [1985] ECR 593, 6 — Ibid., paragraph 19. paragraph 30. 7 — Ibid., paragraph 20.

ECHTERNACH AND ANOTHER v MINISTER FOR EDUCATION AND SCIENCE

19. This brings us to the question whether 16. It would therefore appear that there is the principle of equal treatment regarding no reason to consider that a university conditions of access to 'general educational, course in economics, such as that followed apprenticeship and vocational training' laid by Mr Echternach in the Netherlands, does down in Article 12 of the regulation applies not also fall within the definition of voca­ to study finance assistance as provided in tional training for the purposes of Article 12 the Netherlands. of the regulation and I therefore propose that the Court should answer Question 6 in the Echternach case in the affirmative.

17. Furthermore, given the Court's wide view, according to which university studies 20. The description of the Netherlands system of study finance provided in the 8 — Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 12. 9 — Case 42/87 Commission v Belgium [1988] ECR 5445.

OPINION OF MR DARMON — JOINED CASES 389 AND 390/87

'not only to rules relating to admission, but also to general measures intended to 10 facilitate educational attendance'.

'it is only to the extent to which assistance of that kind is intended to cover registration 22. Essentially the Court must therefore and other fees, in particular tuition fees, decide whether study finance such as that charged for access to education that ... it provided for in the Study Finance Law is a falls, as relating to conditions of access to 'general measure intended to facilitate vocational training, within the scope of the educational attendance'. EEC Treaty and that, consequently, the prohibition of discrimination on grounds of nationality laid down by Article 7 of the 12 EEC Treaty is applicable'. 23. In order to avoid any danger of confusion, it must be borne in mind that there is a distinction to be drawn between the provisions of Community law which relate to the conditions of access to voca­ tional training for Community nationals in 25. The status of migrant worker entails general and those which relate to the markedly more favourable treatment under conditions of access to vocational training Community law, as is particularly well illus­ for migrant workers and members of their trated in the Court's judgment in Lair, cited families. above. There, after considering, in

11 — Case 293/83 Gravier, cited above, paragraph 26. 10 — Case 9/74 Casagrande v Landeshauptstadt München [1974] ECR 773, paragraph 4. 12 — Case 39/86 Lair, cited above, paragraph 14.

ECHTERNACH AND ANOTHER v MINISTER FOR EDUCATION AND SCIENCE

the Court nevertheless held, in answer to a question from the national court based on different legal premisses, that: 28. If Article 12 of the regulation is taken literally, one observes first of all that the scope of the wording used therein might 'a grant awarded for maintenance and appear to be wider than the prohibition of training with a view to the pursuit of discrimination as regards conditions of university studies leading to a professional access to courses of vocational training as qualification constitutes a social advantage laid down in the judgment in Gravier. within the meaning of Article 7(2) of Regu­ Article 12 provides that the children of 14 lation No 1612/68'. migrant workers are to be admitted to courses 'under the same conditions' as the nationals of the host Member State. According to the Treaty, the prohibition of According to that provision, it will be discrimination as regards conditions of remembered, a worker who is a national of access requires, inter alia, that Community a Member State is to enjoy, in the territory nationals should not in any way be charged of the other Member States, 'the same social registration fees or other fees from which and tax advantages as national workers'. nationals are, in law or in fact, exempted, but does not on the other hand require the host State to maintain foreign students given 26. The refusal, therefore, of such access to education in the same manner as it assistance 'awarded for maintenance and maintains its own nationals. In the context training with a view to the pursuit of Article 12, admission to courses under of . . . studies' is lawful under Community the same conditions as nationals would law if it concerns a national who cannot seem, however, to suppose absolutely claim the status of migrant worker on any identical treatment, not confined to grounds, but becomes unlawful if it 'conditions of access' in the narrow sense. concerns a migrant worker.

decisions. In its judgments in Casagrande, 31. Those observations, based essentially on cited above, and of 29 January 1975 in an examination of the Court's previous Alaimo, relating to two refusals to award decisions, lead me therefore to consider that educational grants, the first to the son of an a system of study finance such as the one set Italian worker in the Federal Republic of up by the Study Finance Law falls within Germany and the second to the daughter of the scope of Article 12 of the regulation, another Italian worker in France, the Court and to propose in consequence that the classified those educational grants among Court should answer Question 5 in the the conditions for admission to courses Echternach case and Question 1 in the which Article 12 requires to be the same, Moritz case in the affirmative. without drawing any distinction in either case between that part of the assistance which might have covered access to education in the strict sense and that part which might have covered the student's 11 — The persons covered by Article 12 of maintenance. Thus, in the field of educa­ Regulation No 1612/68 tional grants for the children of migrant workers, the Court in no way established the distinctions recently applied in the Lair and Brown cases as regards Community nationals not affected by the provisions of 32. In the Echternach case, it was suggested Community law relating to migrant that the applicant could not rely on Article workers. 12 of the regulation because his father, by reason of his employment as an official of an international organization, did not have the status of migrant worker for the purposes of Community law. Reference was made in that connection to Article 48(4) of 30. The wide view thus adopted by the the EEC Treaty, according to which the Court for the purposes of applying Article other provisions of that article do not apply 12 of the regulation was made perfectly to employment in the public service, which clear in a passage in the Casagrande was how the post held by Mr Echternach judgment, repeated in almost identical terms senior with the ESA was classified. The in the judgment in Alaimo. In the latter Netherlands Government considers, decision, it stated that the integration of a moreover, that because the ESA has the migrant worker's family into the society of status of an international organization the host country governed by public law its employees 'may derive rights and obligations only from that employment relationship and from the Protocol on the Privileges and Immunities' of the agency's staff, and that they cannot 'presupposes that, in the case of the child of therefore rely on the provisions of the a foreign worker who wishes to be admitted Treaty relating to freedom of movement for to an educational course, that child may workers. take advantage of benefits provided by the laws of the host country relating to educa­ tional grants, under the same conditions as 16 nationals who are in a similar position'. 33. The first observation which springs to 15 — Case 68/74 Alaimov Préfet du Rhóne[1975] ECR 109. mind provides the answer, in my opinion, to 16 — Ibid., paragraph 5. Question 1. It seems clear to me, as it does

35. Even assuming that his post is to be 36. If the occupational situation of Mr regarded as employment in the public Echternach senior is considered not from service within the meaning of Article 48(4), the point of view of the public service within it must be borne in mind that, according to the meaning of Article 48(4) but from that the judgment in Sotgiu, cited above, that of international organizations with their provision offers only special status, I do not believe that a different conclusion can be reached.

'the opportunity of restricting admission of 37. In that connection, both the foreign nationals to certain activities in the Commission and the Portuguese public service', Government very appositely referred to the 17 — Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 155, paragraph 4 18 — Ibid , paragraph 4

OPINION OF MR DARMON —JOINED CASES 389 AND 390/87

What seems to me to be very important here 40. In the Moritz case, the fact that Mr is that the Court apparently recognizes the Moritz's parents and in particular his father, right of all Community nationals, regardless who had worked in the Netherlands since of whether or not they are employed by a 1972, had left the country when Mr Moritz Community institution, to enjoy 'all the applied for financial assistance is relied upon benefits flowing from Community law', in as a ground for refusing to apply Article 12 particular in relation to freedom of of the regulation in his case. In short, it is movement for workers. I agree on this point claimed that since Mr Moritz senior no with the view taken by the Portuguese longer has the status of migrant worker in Government which emphasizes, on the basis the Netherlands, his son cannot claim in of that judgment, that any national of a that country rights deriving solely from that Member State employed in another Member status. State enjoys the rights attached in Community law to the status of migrant worker, without any distinction having to be drawn in that regard according to the 41. That view prompts a number of obser­ nature of the employment or the status of vations. the employer.

42. First of all, I consider it useful to recall the actual wording of the provision in 38. I therefore consider that the fact that a question. Article 12 begins as follows: 'The national of a Member State is employed by children of a national of a Member State who is or has been employed in the territory 19 — Case 152/82 Forcheri v Belgium [1983] ECR 2323, paragraph 9. of another Member State ... '. The phrase

Apart from what we learn from the a contrario argument, it seems to me that, had the Court's position been that a child can no 'as meaning that it grants rights only to a longer claim rights under Article 12 of the child who has lived with his parents or regulation in a State once the parent who either one of them in a Member State whilst worked there has left that State, it would at least one of his parents resided there as a probably not have worded that answer as it worker. It cannot therefore' — and this is did. It could in that case have confined itself the important passage — 'create rights for to a much shorter formulation. However, it the benefit of a worker's child who was seems to me that the wording it chose

20 — Opinion in Case 197/86 Brown v Secretary of Stale for 21 — Judgment of 21 June 1988 in Brown, cited above, ECR Sroi / W [ l988 ] ECR 3205, at p 3234 3205. paragraph 30

OPINION OF MR DARMON—JOINED CASES 389 AND 390/87

48. Mr Moritz's case provides a perfect illustration of what the integration of a family, and in particular of a child, in the host State ordinarily means. Mr Moritz completed most of his education in the 52. The national court asks how, in the Netherlands because his father was working interpretation of that provision, account is there and the possibility of his satisfactorily to be taken of the fact that the child first continuing his education there cannot, in accompanied the migrant worker when the my view, depend solely on the place where latter left the host State and then returned his father happens to pursue his occupation. to that State to continue his studies.

ECHTERNACH AND ANOTHER v MINISTER FOR EDUCATION AND SCIENCE

Netherlands. The difficulty in applying Article 12 is that he was residing there afresh, that is to say after interrupting his residence in the Netherlands for a period of 55. In a manner somewhat similar to the one year and three months. Does such an Court's previous decisions on the main interruption in a child's residence prevent tenance of workers' rights in the event of him from claiming the rights provided for in the transfer of an undertaking, when, in the Article 12 of the regulation? event of its temporary closure, it considers it important for the undertaking to retain its identity, the Court could, in its interpre tation, justify the maintenance of the rights afforded by Article 12 of the regulation to a migrant worker's child by referring to the continuity of the child's vocational training

training. If that training is continued in the host State, a temporary interruption in residence does not matter. The continuance 57. It will therefore suffice to recall that the of studies in that State cannot be considered Court has held that: separately from the reasons explaining it, namely the fact that the child is living with a parent who was a migrant worker. It is a logical result of the integration of such a 'the right of nationals of a Member State to worker's family in the host country that the enter the territory of another Member State children belonging to that family should and reside there for the purposes intended continue their training there, either because by the Treaty — in particular to look for or that is objectively preferable on account of pursue an occupation or activities as the connection between stages of education employed or self-employed persons, or to

'it must therefore be concluded that this right is acquired independently of the issue of a residence permit by the competent 60. Taking the legal principles just 23 authority of a Member State'. mentioned with some of the conclusions reached earlier, I conclude that the child of a migrant worker enjoys a right of residence 58. After setting forth those well-known directly conferred by Article 10 of Regu­ principles laid down in the Court's lation (EEC) No 1612/68, which has legal judgment in Royer I must point out that, as effects regardless of whether or not a regards the children of migrant workers, the residence permit has been issued to him. right of residence in the host Member State is directly conferred by Article 10 of Regu­ lation (EEC) No 1612/68, which states: 'the following shall, irrespective of their nationality, have the right to install them­ selves with a worker who is a national of 61. In my view, therefore, the rights one Member State and who is employed in afforded to the children of migrant workers the territory of another Member State: by Article 12 of that regulation are to be (a) his spouse and their descendants who enjoyed irrespective of whether or not a are under the age of 21 years or are residence permit has been issued. I do not dependants ... '. consider it possible to interpret two provisions of that regulation separately from one another. 59. The right of residence thus conferred on the children of a migrant worker is proved in the Member States in accordance with the detailed rules laid down in Council Directive 68 / 360 / EEC of 15 October 1968 24 by the issue of a residence permit. 62. Even if the enjoyment of the rights Article 6(1)(b) of the directive provides that provided for in Article 12 of the regulation the residence permit must be valid for at were dependent on the possession of a least five years from the date of issue and be residence permit, the competent authorities automatically renewable. That would appear of a Member State may not, in my view, to indicate, in reply to some of the questions refuse to allow a student who is a national of another Member State to enjoy those rights on the ground of a situation which is 22 — Judgment of 8 April 1976 in Case 48/75 Royer[l97b] ECR 497, paragraph 31. contrary to Community law. Since 23 — Ibid-, paragraph 32. Community law provides that as proof of 24 — Directive 68/360/EEC of the Council of 15 October 1968 his right of residence a child of a migrant on the abolition of restrictions on movement and residence within the Community for workers of Member States and worker must be issued with a renewable their families, OJ, English Special Edition 1968, (II), residence permit valid for at least five years, p. 485.

(3) A child of a national of a Member State working in the territory of another Member State may rely on Article 12 of Regulation No 1612/68 whatever the nature of the employment held there by the parent and also if the employment is held within an international organization established in that other Member State;

(4) The child may rely on Article 12 of Regulation No 1612/68 regardless of whether he has obtained documentary proof of his right of residence under Article 10 of that regulation.

OPINION OF MR DARMON—JOINED CASES 389 AND 390/87

In Case 390/87 (Moritz):

(1) Vocational training courses within the meaning of Article 12 of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community include, inter alia, studies at a technical college;

(2) A public contribution towards the financing of studies which assists the student who receives it in bearing the cost both of registration and tuition fees as well as his maintenance costs is included among the conditions of admission to vocational training within the meaning of Article 12 of Regulation No 1612/68;