C-308/89

DI LEO

O P I N I O N OF MR ADVOCATE GENERAL DARMON delivered on 3 O c t o b e r 1990 *

Mr President, the Verwaltungsgericht Darmstadt, which Members of the Court, has submitted this reference for a preliminary ruling.

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excluding the Community nationals referred In that judgment the Court held, in reply to to earlier from eligibility for the grant where a question on whether the financing of the education or training is 'provided in a courses provided for by a 1986 Netherlands State of which they are nationals ' . 3 law constitutes one of the advantages referred to by Article 12, that:

4. Clearly, Miss di Leo's application did not fulfil the conditions laid down by the Bafög, either in the version in force until 30 June 1988, or as subsequently amended. 4 'assistance granted to cover the costs of However, the national court raised the students' education and maintenance is to question whether Community law required be regarded as a social advantage to which a Member State whose legislation provides the children of Community workers are for a grant in respect of education or entitled under the same conditions as apply training abroad to award such a grant to a to the host country's own nationals'. 6 person in Miss di Leo's situation. In that regard, it referred more specifically to Article 12 of Regulation No 1612/68.

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The same conditions of admission to educational courses as apply to nationals of the host State must be accorded to a child of a migrant worker if that child resides within the territory of that State. Here, it should be noted that emphasis is laid on the place where the child resides, and not on the place 7. There is no doubt that Article 12 of where the educational activity is organized. Regulation No 1612/68 lays down a One possible situation is where a Member residence clause, inasmuch as the same State awards to the children of those of its conditions as those laid down by that nationals who live in a frontier district a provision must be granted by the host grant in respect of schooling which they Member State to the children of a migrant receive beyond the frontier, whilst worker if they reside within its territory. continuing to reside within it.

This that provision that a child of a migrant means that the fact that an educational worker who undertakes education or course is pursued abroad, outside the host training outside the host State cannot, on State is not absolutely the same as the basis of that provision, apply for the non-residence in the territory of that State. grant in respect of education or training Hence it is appropriate to take a closer look abroad which is awarded by that State to at the scope of Article 12, as regards both the children of its own nationals. The Court the location of the educational activities has not so far given a ruling on the question which it covers and the condition of whether the wording of Article 12 had the residence which it lays down.

10. According to the third recital in the preamble to Regulation No 1612/68 'the status of child of a Community worker 'freedom of movement constitutes a funda- within the meaning of Regulation No mental right of workers and their families', 1612/68 implies, in particular, that it is and the fifth recital adds that this right 'in recognized in Community law that such order that it may be exercised, by objective children must be eligible for study assistance standards, in freedom and dignity, requires from the State in order to make it possible that equality of treatment shall be ensured for them to achieve integration in the in fact and in law in respect of all matters society of the host country'. 8 relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in In the light of those passages, I believe it is particular as regards the worker's right to be by reference to the objectives thus laid joined by his family and the conditions for down by the Court with regard to inte- the integration of that family into the host gration that it is necessary to assess the country'. scope of Article 12 of Regulation No 1612/68 as regards, in the first place, a possible territorial limitation of the courses to which it refers and, secondly, the condition of residence which it lays down.

11. In its case-law the Court has defined the link between the measures provided for 13. From that point of view, I cannot by Regulation N o 1612/68 with regard to disguise my reluctance to accept the equal treatment and the concept of inte- argument referred to earlier, to the effect gration. I shall refrain from citing the that the pursuit of a course by a migrant Court's earliest judgments, with their now worker's child outside the territory of the classic formulations, and confine myself to host Member State cannot contribute to his recalling the highly significant terms of its aforesaid judgment in Echtemach and 7 — Joined Cases 389 and 390/87, ciced above, paragraph 20. Moritz, where it emphasizes that: 8 — Paragraph 35.

integration in that State. If we consider, in which would result from such an interpre- particular, the possibility of that State tation is all the more difficult to defend refusing to award to a migrant worker's since the actual circumstances of the former child for the pursuit of a course abroad a and the latter may in fact be very similar. If grant which it awards to its own nationals, a person has lived since birth or early that would seem to suggest a lack of inte- childhood in a given place with his family, gration. going to study in another country leads to a comparable change in the conditions of existence, both physical and emotional, whether or not that person is a national of the country left behind. The award or 14. Let us consider for a moment a otherwise of a grant by that country in situation in which two young people, one of order to cope with the change must, in that whom is a national of a Member State and respect as well, surely be relevant to the the other the child of a migrant worker feeling of being integrated in that country. from another Member State, have both completed their primary and secondary education and wish to enrol for the same course at university, but only the first of whom obtains a grant from the State in 16. Hence it seems to me that the aim of order to pursue that course abroad, whilst integration in the society of the host the other is refused such a grant. Is the Member State in no way requires Article 12 latter, at the time when the refusal is to be interpreted as not being applicable to notified to him, likely to experience a courses pursued outside that State and may, feeling of being integrated in the host on the contrary, justify the application to Member State, a feeling that he was being such courses of the principle of equal treated by that State no differently from his treatment embodied in that provision. fellow student whose nationality is different from his own? Integration is not simply a legal concept; it is also something which must be lived and experienced personally and intimately. Hence it is far from certain, 17. Let me add that such an approach in my view, that the actual possibility of a seems to find support in the Court's migrant worker's child pursuing a course judgment in the Matteucci case. 9 Inter- outside the host State, which may depend preting Article 7(2) of Regulation No on the award of a grant by the State, is a 1612/68, which provides that a worker who priori unconnected with the aim of inte- is a national of a Member State is to enjoy, gration in that State. in the territory of the other Member States, the same social advantages as national workers, the Court considered that that provision

and established in its territory as far as 'In my opinion, it is clear that if one equality of treatment with national workers Member State arranges for its nationals to is concerned', undertake courses in another Member State, which if they were held in that Member State would constitute social advantages (Article 7(2)), training in vocational schools or retraining (Article 7(3)), or general education, apprenticeships or vocational and that, consequently, training courses (Article 12), then those courses, albeit held in another Member State, respectively fall within Articles 7(2), 7(3) or 12. They are to be seen as part of the educational system of the State'. 11 'where a Member State gives its national workers the opportunity of pursuing training provided in another Member State, that opportunity must be extended to Community workers established in its territory'. 10 19. I would point out, moreover, that the corresponding interpretation of Articles 12 and 7(2) of Regulation No 1612/68, as advocated by the Commission, seems to be suggested by the Court in one of its most recent judgments. In Echternach and Moritz 18. Article 7(2) is a provision which refers the Court emphasized the convergence with some precision to a territorial concept, between those two provisions pointing out inasmuch as the benefit of equal treatment that provided for therein is accorded 'in the territory' of a Member State in favour of workers who are nationals of another Member State. As we have seen, the Court has interpreted that concept in a manner which does not preclude an advantage granted by a Member State to its own 'the Court has . . . held that a grant awarded nationals for the pursuit of education or for maintenance and training with a view to training outside its own territory from being the pursuit of secondary or further granted to a Community migrant worker education is to be regarded as a social established within that territory. In my view, advantage within the meaning of Article there is nothing to prevent the territorial 7(2) of Regulation No 1612/68, to which concept inherent in Article 12 from being migrant workers are entitled under the same interpreted in the same manner. Hence the conditions as nationals', need for the fullest possible integration in the society of the host Member State seems to me to entail such an interpretation of that provision. That tallies with the view expressed by Advocate General Sir Gordon Slynn in his Opinion in the Matteucci case when he stated that: before adding that

'the same principle must apply to the are admitted to educational courses on the children of such workers when they are same conditions as its own nationals 'if such admitted to educational courses in the host children are residing in its territory'. The country under Article 12 of the regulation Government of the Federal Republic of since, if interpreted in any other way, that Germany has pointed out that the German provision would often have no practical version of Article 12 of Regulation No effect'. 12 1612/68 lays down the more concrete condition of 'living', and not residing, in the

The Dutch passages quoted above, seems to me to version uses a related wording: 'indien zij constitute, having regard to the judgment in aldaar woonachtig zijn', literally 'if they are Matteucci, a further reason for considering living there'. The Italian version is closer to that the equal treatment provided for by the the French version in expressing the first-mentioned provision for the benefit of condition as follows 'se i figli stessi vi the children of migrant workers is not resiedono', which is to say 'if the children excluded where the host Member State themselves are residing there'. I would point implements for its own nationals measures out, however, that in German 'wohnen' can encouraging the pursuit of courses outside mean both 'to live' and 'to reside' and that its own territory. in Dutch 'woonachtig' may be translated as 'living' or 'residing'. Hence the use of that expression is ambiguous and it is by no means certain that the German and Dutch versions refer to 'living', which is more

That 22. Article 12, I would remind the Court, situation produces different results provides that the host Member State is to according to whether the student is required ensure that the children of a migrant worker actually to reside in the host State for the duration of the course in respect of which 12 — Joined Cases 389 and 390/87, cited above, paragraph 34. he claims equal treatment as regards the

conditions of admission, or only as from the a course outside the host Member State, time when he takes the decision to pursue that: that course abroad. In my view, the choice between the two cannot be made without taking account of the overall objective pursued by several provisions of Regulation No 1612/68, including Article 12, namely 'the argument that Article 12 cannot apply to promote the integration of the migrant because the child will no longer be resident worker's family in the society of the host in the State is untenable. Residence in the

On the basis of the whereas at the same time the grant was concept of residence, as interpreted by the maintained in the case of a national of the Court in connection with Regulation No 3 host country engaged in the same activities concerning social security for migrant in the place where he was studying, would workers, 14 the student may be regarded as run counter to the objective pursued by having maintained the permanent centre of Regulation No 1612/68 with a view to the his interests in the Member State in which achievement of full freedom of movement his family lives, and for that reason he is for workers. still living there.

upon. Once again I would refer to the view 14 — Judgment in Case 13/73 Angenieux v Hakenberg [1973] ECR 935, paragraphs 23 to 32 and point 3 of the operative expressed by Sir Gordon Slynn who part. emphasized, in his aforesaid Opinion in the 15 — Directive on tax exemptions within the Community for Matteucci case, with regard to the pursuit of certain means of transport temporarily imported into one Member State from another (OJ 1983 L 105, p. 59).

Luxembourg national had studied in in their reasoning the Governments of the Strasbourg for a certain period was not Federal Republic of Germany and the incompatible with the maintenance in Netherlands have transposed that condition Luxembourg of the permanent centre of his to a context where it does not belong. The interests. 16 fundamental aim pursued by means of the residence clause would appear to be to prevent the benefit of the equal treatment provided for in Article 12 from being claimed in favour of children who have 26.

How many times would a student have to travel back and 28. I therefore incline to the view that forth between the place where he is Article 12 does not exclude from the benefit pursuing a course and the host State before of the equal treatment provided for therein being regarded as retaining the permanent either the pursuit of a course as such outside centre of his interests in that State? Would a the territory of the host Member State or a distinction have to be drawn according to situation in which the child has gone to live the length of the periods spent by the outside that territory for the purpose of student with his family? As we can see, the studying abroad. temptation to reason by analogy with solutions arrived at in other circumstances would involve subtle and, ultimately, highly 29. Should it be assumed, however, that the complex analyses. Hence it is preferable, in case of a child of a migrant worker who my view, for the Court to adhere to the goes to study in the Member State of which reasoning which I suggested initially and to he is a national falls outside the scope of take account of the actual residence of a Article 12? The national court's question migrant worker's child at the time when he expressly refers to a situation of that kind. decides to go and study abroad, instead of a Under the Bafög the benefit of the grant for more or less fictitious residence in the host the pursuit of a course abroad has since State while the course is in progress. 1 July 1988 been denied only to students who go and study in the Member State of which they are nationals.

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territory of the host State or students who friends there with nationals of that State have gone to live abroad for study purposes. and who only returned to their country of It does not single out courses pursued in a origin for brief periods in order to spend Member State of which the student is a their holidays there. national.

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of a national system of grants for the concerned and to those belonging to the pursuit of courses abroad such as that estab- family of a migrant worker established lished by the Bafög. I would point out, in within that State's territory. A Member any event, that the award of a grant to the State cannot take account of grants paid nationals of the Federal Republic in order to abroad to the child of a migrant worker go and study medicine abroad, in view of who has left his family in order to pursue a the difficulty or impossibility of gaining course and, at the same time, refrain from admission to medical faculties within taking into consideration the same grants national territory on account of the numerus paid to its own nationals who have gone clausus, would seem to correspond to an abroad to undertake similar courses. Finally, objective wider then that of cultural the mere possibility of individual attempts enrichment. being made to evade the rules against over- lapping benefits, in respect of which the Member States could impose penalties, cannot lead to a restrictive interpretation of Article 12 of Regulation No 1612/68. 34. Another point is that a student's departure in order to pursue a course in the State of which he is a national cannot necessarily be regarded as a prelude to subsequently settling within its territory. 36. In my view, therefore, the pursuit of an The student's return to the host State where educational course by a student in the he spent his childhood with his family and Member State of which he is a national does where his family may still be living, in order not fall outside the scope of Article 12. to work there, is not at all unlikely. In that regard the grant awarded by the host State in order to pursue a course abroad, even in the State of which the student is a national, may be a significant factor affecting his 37. Before I bring this Opinion to an end, it integration in the first State. may well be useful to refer to certain aspects of a more restrictive interpretation of Article 12 than that which I suggest the Court should adopt.

earlier, it seems to run directly counter to remains that the general and unconditional the aim of integration. nature of the answer envisaged, in response to a question which expressly referred to Article 12, are worth considering. I do not see any possible reason why the Court should take a new approach and adopt henceforth a dissociated interpretation of 39. Next, I should point out that the inter- Article 7(2) and Article 12. pretation suggested by the Governments of the Federal Republic of Germany and the Netherlands would lead to a departure from the thinking behind the judgment in Echternach and Moritz as regards the link between the scope of Article 7(2) and that of Article 12 of Regulation No 1612/68.

In the light of the State, the Court would undoubtedly betray solutions adopted by the Court in its the spirit by which it was actuated when it judgment of 18 June 1987 in Lebon 19and gave its ruling in the Echternach and Moritz in the Matteucci judgment, I consider that case. The concern to rely on Article 7(2) for the award of a grant to pursue a course the interpretation of Article 12 strikes me as abroad, as provided for by the Bafög, having found expression, very significantly, constitutes for a migrant worker a social in paragraph 5 of the operative part of the advantage within the meaning of Article judgment, which I referred to earlier. 18The 7(2), in so far as he continues to provide reference therein to the concept of social maintenance for a child of his who goes and advantages manifestly owes more to Article studies outside the host Member State. 7(2), in which it is expressly mentioned, Accordingly, if she were denied the direct than to the wording of Article 12, from benefit of equal treatment provided for by which it is missing. Hence if the two Article 12 as a result of a restrictive inter- provisions are examined together, it is pretation of that provision, Miss di Leo possible for the Court, through a combined would be able to benefit indirectly from the interpretation, to devise an outline of the equal treatment provided for by Article 7(2) answer to the effect that a migrant worker's in favour of her father. I would point out, child may be regarded as entitled to a grant moreover, in reply to an objection by the from the host State to pursue a course Federal Government, that a grant or an abroad if that State awards such a grant to allowance may constitute a social advantage its own nationals. Admittedly, the wording within the meaning of Article 7(2) in favour of Article 12 of Regulation No 1612/68 and of migrant workers even if, for the purposes the condition of residence which it lays of national legislation, those entitled to it down cannot be disregarded, but the fact are the children and not the parents.

18 — See paragraph 5 of this Opinion. 19 — Case 316/85 [1987] ECR 2811.

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view, that was quite clearly decided by the awarded by the same State where it is Court in the Lebon judgment. undertaken by its own nationals, would be tantamount to the adoption by the Court of an exceptionally narrow view of integration. That is why I believe the Court should 41. Ultimately, I am convinced that the adopt an interpretation of Article 12 which decisive factor here is the concept of inte- reflects the entire scope of the aim of inte- gration. An interpretation of Article 12 of grating migrant workers and their families Regulation No 1612/68 which would mean and renders superfluous an approach based regarding as consistent with the aim of inte- on Article 7(2). Besides, is not the ultimate gration in the society of the host Member rationale of Regulation No 1612/68, in State a situation in which a course which a actual fact, a unique concept of integration child has gone to pursue outside that State in the society of the host country, which continues to be paid for by a migrant cannot vary from one provision to another, worker established within that State according to whether the person involved is together with his family, when a course of a worker or a child who has migrated with that kind is covered by a public grant him?

42. I therefore suggest that the Court answer the question as follows:

'Article 12 of Regulation (EEC) No 1612/68 must be interpreted as meaning that a grant awarded by a Member State for the pursuit of a course abroad is to be regarded as a social advantage to which the children of Community workers are entitled under the same conditions as nationals of that State, without any exception being made in the case of a child who goes to study in the Member State of which he is a national.'