C-7/94

1. The question submitted to the Court by 2. German legislation on education allow­ the Bundesverwaltungsgericht for a prelimi­ ances, so far as is relevant for the purposes of nary ruling concerns the interpretation of this case, consists primarily of the Bundes­ Article 12 of Council Regulation (EEC) ausbildungsförderungsgesetz (Federal Law No 1612/68 of 15 October 1968 on freedom on Educational Support; hereinafter 'the of movement for workers within the Com­ BAföG'). The second subparagraph of Para­ munity (hereinafter 'the Regulation'). 1The graph 5 of the BAföG provides in general national court wishes to ascertain in particu­ terms that an education allowance may be lar the scope of that article's application granted to students resident on the national ratione personae in order to establish territory for attending courses abroad pro­ whether the concept mentioned therein of vided that, having regard to the level already the child of a migrant worker should be attained by the student, such courses are understood as limited exclusively to a child beneficial, that they fall within the candi­ who is under 21 years of age and/or depen­ date's normal period of instruction and that dent on a parent. the candidate possesses the necessary linguis­ tic skills. Among those entitled to an allow­ ance, the first subparagraph of Paragraph 8 of the BAföG mentions not only German citizens, but also those students who, as the children of migrant workers, benefit from the free movement of persons in accordance with the Aufenthaltsgesetz/EWG (German Law on the right of residence for Commu­ nity nationals). Lastly, Paragraph 1(2) of that Law states that, for the purposes of its pro­ Article 12 of the Regulation provides that visions, the children (of a migrant worker) the children of a national of a Member State are to be regarded as members of the family who is or has been employed in the territory if they have not yet reached 21 years of age of another Member State are to be admitted or if they are still dependent on the migrant to that State's general educational, appren­ worker or his spouse. ticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Furthermore, pursuant to the sec­ ond paragraph of Article 12, Member States are required to encourage all efforts to enable such children to attend those courses under the best possible conditions. 3. Mr Gaal is a Belgian national born in 1967 who, since 1969, has been living in Ger­ many where he completed his secondary * Original language: Italian. education and enrolled at university to study 1 — OJ, English Special Edition 1968 (II), p. 475. biology. Since 1987, following the death of

his father, he has been in receipt of an German Government considers that the sec­ orphan's allowance, which constitutes his ond sentence of the second paragraph of only source of financial support. Article 165 of the Treaty has been infringed in so far as insufficient information has been made available regarding the criteria for assignment to the Chamber hearing the case of five out of the six judges listed in the Official Journal 2 at the beginning of the In 1989 Mr Gaal applied to the competent judicial year as belonging to the Chamber. authority (the Landesamt für Ausbildungs­ förderung; hereinafter 'the Landesamt') for an allowance in order to undertake, in con­ nection with his course, an eight months' period of study at a university in the United Kingdom. The Landesamt rejected the appli­ cation on the ground that, since the candi­ date had already reached 21 years of age and Although the German Government's plea was not dependent on his parents, he fell has had the effect of delaying the proceed­ outside the category of those who are enti­ ings, it is manifestly unfounded. The Cham­ tled to the allowance in accordance with the ber hearing the present case is composed of aforesaid German legislation. five judges, precisely as envisaged by Article 165 of the Treaty. The designation of those five judges from among the six belonging to the Chamber clearly falls within the scope of the Court's autonomy in matters of internal organization. 4. In the ensuing proceedings, initiated by Mr Gaal against the rejection of his applica­ tion, the German court hearing the appeal on a point of law referred to the Court of Jus­ tice for a preliminary ruling the above ques­ tion, by which in effect it seeks to ascertain whether Article 12 of the Regulation must be interpreted in such a way as to render the 6. Let us now turn to the substance. As a twofold limitation laid down by the German preliminary point it should be noted that, legislation inoperative, thereby requiring the even though the Court has frequently had Landesamt to grant Mr Gaal the allowance occasion to rule on the scope both ratione requested. materiae and ratione personae of Article 3 12 of the Regulation, no interpretation of that article has been given with respect to the specific question whether there is an 'implied' limit to its application in the form

Our task is therefore to assess whether and, if so, to what extent it is appropriate or even In the first place, if the legislature had necessary to go beyond a literal interpreta­ wished to make the concept of child for the tion of Article 12 to the point of asserting purposes of Article 12 subject to the two that the application of the rule contained limiting conditions in dispute, it would have therein is limited to cases in which the ben­ added an express provision to that effect, of eficiaries are under 21 years old or are still the kind contained in Articles 10 and 11 of dependent on their parents. That would be the Regulation. The argument that the con­ the result of a systematic interpretation of cept of child in Article 10 should automati­ the Regulation — or rather of the last three cally be extended to the other relevant arti­ articles of the first part (Articles 10, 11 and cles of the Regulation is equally untenable, as 12) — requiring those three provisions to be demonstrated by the next article — Article aligned with one another as regards their 11 — which, in indicating which persons are content. to enjoy the benefits provided for therein, expressly specifies children who are under the age of 21 or still dependent. The fact is that not one article and still less the preamble contains a definition of child which must be applied to each of the provisions which fol­ If Article 12 of the Regulation were inter­ low. preted in that way, as the Landesamt and the German Government have suggested, it would not preclude the relevant provisions of the BAföG from being applied. If, on the other hand, the Court were to consider it necessary to accord Article 12 a different interpretation, the German legislation would be incompatible with that article and would have to be disapplied. 8. As regards the rationale underlying the article in question, the purpose of which is to ensure the fullest possible integration of the migrant worker's family into the society of the host country, it is worth briefly consider­ 7. On that point, let me say at once that just ing the Court's most important rulings on as, in my view, the text of Article 12 of the the subject, in order to observe the wide

10. On the question of the article's applica­ tion ratione personae, the Court made it clear at the outset that the children of a deceased 9. Starting from that premiss, the Court has migrant worker are also entitled to rely on 10 confirmed in clear and unconditional terms the principle of equal treatment. Further­ the principle of equal treatment in matters of more, while affirming that it is indispensable education as between the children of migrant in order to achieve the integration pursued workers and the nationals of the host State. by the Regulation for the child of a Commu­ The Court has also made it clear that the nity worker to be able to undertake and suc­ principle refers 'not only to rules relating to cessfully complete studies at every level in admission, but also to general measures the host country, the Court has laid down intended to facilitate educational atten­ that even a child who has returned to his 5 dance', and to all the benefits provided by State of origin with his family does not lose the laws of that State, with a view to the rehabilitation of the handicapped, for exam­ 6 ple. 7 — See Joined Cases 389/87 and 390/87, cited above, para­ graphs 29 and 30. 8 — Ibid., paragraphs 34 and 35. 9 — See Case C-308/89, cited above, paragraph 15. 10 — See Case 42/87 Commission v Belgium [1988] ECR 5445, 4 — See Case 76/72 Michel S. [1973] ECR 457, paragraph 13, paragraph 10. However, the Court had already stated that Case 9/74, cited above, paragraph 3, and Case 68/74 Alaimo Article 12 cannot confer rights on a worker's child who is [1975] ECR 109, paragraph 4, which repeat almost word for born after the worker no longer works and resides in the word the fifth recital in the preamble to the Regulation. host State, since in such a case the child has never possessed 5 — See Case 9/74, cited above, paragraph 9. the status of a member of the worker's family (see Case 6 — See Case 76/72, cited above, paragraph 14. 197/86 Brown [1988] ECR 3205, paragraphs 29 and 30).

Lastly, I should like to point out that in the same judgment, while examining the Nether­ 12. That conclusion would appear moreover lands legislation providing for grants for to be substantiated by a number of further Netherlands students (to which the Court considerations. itself established that the children of migrant workers were entitled), the Court found that the financing in question was intended to 11 — See Joined Cases 389/87 and 390/87, cited above, para­ cover widely differing costs, possibly includ­ graphs 21, 22 and 23. ing the maintenance costs of the student's 12 — I am of course referring to Article 7 of the Treaty (now Article 6) on the basis of which the Court — in the absence of a specific provision (which exists, however, in the present case) — confirmed the unacceptability of the special enrol­ ment fee required from foreign students by Belgian educa­ tional establishments (sec Case 152/82 Forcheri [1983] 13 — See, to the same effect, the Opinion of Advocate General ECR 2323, Case 293/83 Gravier [1985] ECR 593 and Case Sir Gordon Slynn in Case 235/87 Matteucci [1988] 24/86 Blaizot [1988] ECR 379). ECR 5589, particularly pp. 5601 and 5602.

I -1037

OPINION OF MR TESAURO — CASE C-7/94

14. The German Government has contended that, if a literal interpretation of Article 12 were to be accepted, it might lead to a paradoxical situation in which the child of a migrant worker, despite having no right under Article 10 to install himself with his parent (being over 21 years of age or inde­ pendent), might nevertheless be able to obtain the benefits available under Article 12, or even claim the right to install himself in 15. One final observation concerns Council the host country on the basis of a right to Directive 90/366/EEC of 28 June 1990 on 16 benefit under Article 12. the right of residence for students, to which the German Government has referred in its observations in support of the view that migrant students have no right to main­ tenance grants from the host State. Although it is true that under Article 3 of that directive students possessing a right of residence have no right to maintenance grants, it does not follow that the directive in question pre­ cludes a right to similar allowances where, as On that point, I feel it is enough to note in this case, that right derives from other that, as the Commission has correctly sub­ provisions of Community law. mitted, the child's right to reside within the

15 — OJ, English Special Edition 1970 (II), p. 402. 14 — See Joined Cases 389/87 and 390/87, cited above, paragraph 32. 16 — OJ 1990 L ISO, p. 30.

I - 1038

GAAL

16. In the light of the foregoing considerations I therefore propose that the Court give the following answer to the question submitted by the Bundesverwaltungsger­ icht: