C-413/99

OPINION OF MR GEELHOED — CASE C-413/99

O P I N I O N O F ADVOCATE GENERAL GEELHOED delivered on 5 July 2001 1

I — Introduction purposes of the preliminary reference pro- ceedings, namely the case of the 'R' family and that of the Baumbast family. In the case of the 'R' 2family there was a divorce following which the children continued to live with the mother. In the case of the Baumbast family the father left for a non- 1. In this case the Immigration Appeals Member State for occupational reasons, Tribunal has referred certain questions to though the marriage remained intact. the Court for a preliminary ruling. It seeks to ascertain from the Court to what extent Community law requires Member States to observe rights of residence in favour of members of the family of nationals of the European Union who have installed them- selves in a host Member State with a worker, but where circumstances have I I — Legal framework subsequently changed. More particularly, the referring tribunal seeks to ascertain whether persons admitted into the United Kingdom as members of the family of a 3. Two sections of the EC Treaty are of migrant worker within the meaning of the particular relevance to the right of resi- EC Treaty continue to enjoy the protection dence at issue in this case. Part Two of Community law after the status which concerning citizenship of the Union conferred that right on them (their status as includes Article 18 EC (ex Article 8A of members of the worker's family) no longer the EC Treaty), which provides: subsists. In addition, the referring court seeks an interpretation of Article 18 EC.

Title III of Part Three governs freedom of movement for workers. Article 39 EC (ex Article 48 of the EC Treaty) provides: 4. With a view to facilitating freedom of movement for workers Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers was adopted. 3This regulation lays down rules governing the legal position of the ' 1 . Freedom of movement for workers shall members of the family of a worker, inter be secured within the Community. alia, in the following articles.

2. Such freedom of movement shall entail the abolition of any discrimination based 'Article 10 on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 1. The following shall, irrespective of their nationality, have the right to install them- selves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) his spouse and their descendants who are under the age of 21 years or are dependants;

3 — OJ, English Special Edition 1968 (II), p. 475.

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who are residing with him in the territory of that State by marriage to that of a Member State shall be entitled to worker.' remain there permanently if the worker has acquired the right to remain in the territory of that State in accordance with Article 2, 5 and to do so even after his death.

6. I would also refer to two other directives which, though older, are still applicable 2. If, however, the worker dies during his and contain further provisions concerning working life and before having acquired the freedom of movement for workers. Council right to remain in the territory of the State Directive 64/221/EEC of 25 February 1964 concerned, members of his family shall be on the co-ordination of special measures entitled to remain there permanently on concerning the movement and residence of condition that: foreign nationals which are justified on grounds of public policy, public security or public health 6lays down rules, inter alia, on the admission and refusal of persons on grounds of public policy, public security or public h e a l t h . C o u n c i l D i r e c t i v e 68/360/EEC 7of 15 October 1968 on the — the worker, on the date of his decease, abolition of restrictions on movement and had resided continuously in the terri- residence within the Community for tory of that Member State for at least workers of Member States and their two years; or families contains a series of measures to facilitate the movement of persons on whom rights are conferred under Regu- lation No 1612/68. Those include the possibility of pursuing employment in another Member State and rules on travel — his death resulted from an accident at documents including a prohibition on visa work or an occupational disease; or requirements.

Where the second subparagraph cannot be 'R' applied in a Member State, the resources of the applicant shall be deemed sufficient if they are higher than the level of the minimum social security pension paid by 8. In the 'R' case the facts are as follows. the host Member State. Mrs R is a United States citizen. In 1990 she came from the United States to live in the United Kingdom with her then hus- 8 — OJ 1990 L 180, p. 26. band/worker, who is a French national. She I - 7098

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10. Mr and Mrs Baumbast — he is Ger- man and was a worker at the time of the marriage, and she is a Colombian — were married in 1990 in the United Kingdom. 9. The divorce in 1992 had no effect on The family also comprises two daughters. Mrs R's leave to remain which was valid Mrs Baumbast's eldest daughter Maria is until 1995. In October 1995 an application from an earlier relationship and has was made under the relevant domestic Colombian nationality. The second legislation on behalf of Mrs R and her daughter, Idanella has dual nationality children for indefinite leave to remain. She (German and Colombian). The parties to invoked the particular family situation and the proceedings before the referring tribu- relied upon the right to family life between nal agreed that, for the purposes of the the children and their parents. Indefinite preliminary-reference proceedings, Maria leave to remain was granted to her children was to be treated as a member of Mr but not to her. She appealed against the Baumbast's family. refusal by the Secretary of State to grant her the indefinite leave sought. The appeal was based on the rights of the children under the EC Treaty and the right to family life. Moreover, in her view an issue of discrimi- nation arose since spouses of UK nationals 11. The family obtained a residence permit . are granted indefinite leave to remain after valid for five years until 1995. As from one year. The appeal was refused on the 1990 Mr Baumbast initially pursued an ground that it was not based on one of the economic activity as an employed person grounds under the National Immigration and then for a period as a self-employed Rules. On 5 June 1997 the Secretary of person. Following his company's failure, he

13. Moreover, during the national proceed- 12. In 1995 Mrs Baumbast applied for ings it was established that Mr Baumbast indefinite leave to remain in the UK for and his family are resident in the United the whole family. In 1996 the Secretary of Kingdom. Mrs Baumbast and the two State refused leave for Mrs Baumbast and children have in the meantime been granted her children to remain indefinitely and — indefinite leave to remain in the United in respect of the whole family — refused Kingdom by decision of the Secretary of to extend the leave to remain previously State of 23 June 1998, though leave was issued. On 12 January 1998 the case came refused in Mr Baumbast's case. at first instance before the adjudicator who established that Mr Baumbast was no longer a worker within the meaning of EC law since it was highly unlikely that he would take up a post in the United Kingdom. Nor could he (or his family) rely on Directive 90/364 on the right of resi- dence since they were covered by the German sickness insurance scheme and IV — The preliminary questions consequently were not insured in the United Kingdom in such a way as to satisfy the requirements of Article 1 of Directive 90/364. Mr Baumbast accepted these find- ings of fact. On those grounds he is basing 14. The particulars of the cases outlined himself in the further proceedings on above have given rise to the following four Article 18 EC. However, the children were preliminary questions. I would observe in

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that connection that the third and fourth has ceased to be a worker within questions are relevant only to the Baumbast the host State; case.

(ii) the father who is a citizen of the No 1612/68 or some other (and if so, European Union ceases to be a worker which) provision of EU law? within the host State?

Fourth Question

Third Question

(a) Assuming that the preceding question is answered in the EU citizen's dis- favour, do that person's family members retain the derivative rights (a) On the facts of Mr Baumbast's case, that they, as such members, originally does he, as an EU citizen, enjoy a acquired upon being installed in the UK directly effective right of residence in with a worker? another EU Member State pursuant to Article 18 EC (ex Article 8(a) of the EC Treaty) in circumstances where he no longer enjoys rights of residence as a worker under Article 39 EC (ex Article 48 of the EC Treaty), and does not qualify for residence in the host (b) If so, what are the conditions that apply?' State under any other provision of EU law?

V — Preliminary: relevance of the ques- (b) If so, are his wife and children con- tions to the main proceedings sequently able to enjoy derivative resi- dence, employment and other rights?

15. The question arises as to the extent to which a reply by the Court to the questions retains relevance to the main proceedings. In the 'R' case Mrs R has by her marriage to a British citizen in the meantime (c) If so, do they do so on the basis of obtained indefinite leave to remain in the Articles 11 and 12 of Regulation United Kingdom. Her children had already I - 7102

22. A reference by a national court can be rejected only if it appears that the procedure laid down by Article 177 of the Treaty has been misused and a ruling from the Court elicited by means of a contrived dispute, or it is obvious that Community law cannot apply, either directly or indirectly, to the '20. According to settled case-law, the circumstances of the case referred to procedure provided for in Article 177 the Court...' of the Treaty [now Article 234 EC] is a means of cooperation between the Court of Justice and national courts. It follows that it is for the national courts alone which are seised of the case and are responsible for the judg- ment to be delivered to determine, in 17. My view is that it is sufficiently clear view of the special features of each that there is no question of a contrived case, both the need for a preliminary dispute in the present case. The questions ruling in order to enable them to give arise from proceedings before national their judgment and the relevance of adjudicating bodies concerning the rights the questions which they put to the of residence of the 'R' and Baumbast Court... families. It is also clear that Community law can apply to the circumstances of both cases for the disputes are both based on 9 — Case C-130/95 [1997] ECR v-4291. freedom of movement for persons. It is

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another question whether the questions the EC Treaty (now Articles 39, 43 and 49 raised still have relevance to the proceed- EC). In order to facilitate the exercise of ings before the national tribunal since, those Treaty rights, the Community legis- except in the case of Mr Baumbast, the lature established more detailed rules. In leave sought had already been granted at that context Regulation No 1612/68 was the time when the preliminary questions adopted in 1968. That regulation estab- were submitted. lishes, inter alia, a right of residence in favour of the spouse and other members of the family of a migrant worker.

Social developments

22. As regards the social developments which have occurred since the 1960s and which are of significance to the interpre- 24. Regulation No 1612/68 was adopted tation and application of Regulation at the high-water mark of industrial mass No 1612/68 I have in mind one social/ production when employment conditions cultural trend and two economic trends. were relatively stable. The Community legislature was able to assume that the working cycle had a certain permanence. In the current economic climate rapid changes in the work cycle — and also of the work- place have become much more common. Those changes can happen so quickly, as in 23. Regulation No 1612/68 dates back to a the case of the Baumbast family, that the time when family relationships were choice is made not to move the family relatively stable. The social legislation of continuously. the 1950s and 1960s — like the regu- lation — makes provision for the tradi- tional family in which the husband is the breadwinner and the wife takes care of the household and the children. The traditional family of course continues to exist but has become much less dominant amongst the forms of cohabitation in the Western world. Family relationships and forms of cohabitation have become less stable and 25. The second economic trend is that of more varied. Both the 'R' family — after globalisation. In the global village the the divorce — and the B a u m b a s t organisation and activities of undertakings family — where the father lives only a take on an increasingly international part of the time with his family — are dimension, both within the European examples of these trends. An additional Union and outside it. Situations, such as factor is that families in which the spouses that of Mr Baumbast, in which a worker are of different nationalities or where resident in Member State A is employed in children of other nationalities are present a non-Member State by a company in

27. A wholly different development of relevance to the freedom of movement for persons is the increased significance of the 29. At the time of its adoption, at the end issue of the immigration of nationals from of the 1960s, the regulation merely had to non-Member States. Strictly speaking I concern itself with how the rights of know that this development plays no role residence of family members are estab- in the present case; nor is reliance placed on lished and not with when they are termin- Title IV of Part Three of the EC Treaty. ated: in normal cases the social situation None the less, it is as well to be aware of was stable. To that end Article 40 EC the fact that developments in freedom of provides that the Council is to issue direc- movement for persons within the European tives or make regulations setting out the Union frequently have a close link with measures required to bring about freedom immigration from non-Member States. of movement for workers. Already at the Thus, both Mrs R and Mrs Baumbast end of the 1960s the Council established entered the European Union from a non- the rules which continue to form the basis Member State, availing themselves of the of freedom of movement for workers. provisions concerning freedom of move- Those rules are laid down in Regulation ment for persons within the European No 1612/68 and Directive 68/360/EEC. Union. Article 1 of Regulation No 1612/68 further

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implements Article 39 EC and gives to proposals are of no relevance to the assess- every national of a Member State, irrespec- ment of the questions in the present case. tive of his place of residence, the right to accept and perform paid employment in the territory of another Member State. Under Article 1 of Directive 68/360 the Member States are to lift the restrictions on move- ment and residence of migrant workers and members of their families. Thus they may work in another Member State and neither an entry visa nor an exit visa may be required.

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have sickness insurance for himself and the those rights are established. No specific members of his family which covers all provision is made for changes in circum- risks in the host Member State and must stances, which in my view may be have sufficient financial resources. accounted for by the fact that at the time when the rules were enacted at the end of the 1960s it was appropriate to assume that working and family relationships were stable. Only in Regulation No 1251/70 is provision made for a specific change of circumstances — and one which is fore- 32. Finally, the Maastricht Treaty inserted seeable at any period of time, namely the into the EC Treaty a new section concern- death of the worker. The first two ques- ing citizenship of the Union. Article 18 EC tions submitted to the Court are essentially provides that every citizen has the right to concerned with changed circumstances. move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty.

35. In addition, a further series of second- ary legislation, namely Directives 90/364, 90/365 and 93/96, establishes rights of 33. At this juncture I come to the following residence for persons who are not or are conclusion which underpins the subsequent no longer economically active. Those rights reasoning of this Opinion. are, in those directives, subject to the requirement of sufficient financial resources. That is to prevent a migrant from having to have recourse to the social security benefits of a host Member State.

V I I— The current state of EC law by within the meaning of the regulation, as reference, inter alia, to the Court's case- long as the marriage has not been formally law dissolved, even if the spouses have already separated. 14 Secondly, dependants in the descendant line under the age of 21 years and also other dependent relatives in both 37. In the preceding points I have outlined the descendant and ascendant lines may certain fundamental developments in the install themselves with the migrant worker. area relevant to this case. In order to be For other blood relatives the condition able to provide an adequate reply to the applies that they must be dependants. 15 questions submitted by the referring tribu- Under the Court's case-law, the status of nal, a more thorough treatment of the dependent member of a worker's family is current state of EC Law is called for at this the result of a factual situation. The person particular juncture. having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker's support or to raise the question whether the person concerned is able to support himself by taking up paid employment. 16 It follows from the judg- ment in Diatta 17 that family members are Articles 10, 11 and 12 of Regulation not required to be living permanently with No 1612/68 the worker.

it only has effect in the case of children who broad interpretation of children's rights are not EC nationals: children who have u n d e r A r t i c l e 12 of R e g u l a t i o n the nationality of a Member State enjoy a No 1612/68. Even after a period of tem- self-standing right to freedom of movement porary residence in the country of origin for workers under Article 39 EC. they may return to the host country in order to continue their studies. In its judg- ment in Di Leo 21 the Court ruled that a Member State must treat children covered by Article 12 in the same way as its own nationals for the purposes of study grants, even where the studies are pursued in the 41. Article 12 relates to admission to gen- Member State of which the children con- eral educational, apprenticeship and voca- cerned are nationals. tional training courses. 18 The connecting factor for the right of children to access to education is not the status of worker of one of the two parents but the broader criterion of whether one of them works or has worked. Even if the parent concerned is not pursuing an activity as an employed person or no longer works, the children still have a right to access to education. In its judgment in Echternach and Moritz 19 the Court held that the child of a Community worker who was employed in another Member State retains the status of member of a worker's family within the meaning of Regulation No 1612/68, when the family returns to the 42. In sum, access to education is under the Member State of origin and the child of terms of Article 12 limited to the children such a worker — possibly after a certain belonging to the family of the migrant period of interruption — remains in the worker and his spouse. It is not a require- host State in order to pursue his studies ment that the worker should live in a family there which he was unable to continue in relationship with the children concerned. the Member State of origin. The Court Furthermore, it follows from the judgment expressly upheld the view of the Commis- in Gaal 22 that Article 12 is applicable to sion and the Portuguese Government in financial assistance to students who are that case according to which 'the principle already at an advanced stage in their of equal treatment enshrined in Commu- education, even if they are 21 years of age nity law must ensure as complete an inte- or are no longer dependants of their gration as possible of workers and parents. 'Accordingly, to make the appli- members of their families in the host cation of Article 12 subject to an age-limit country'. 20 The Court therefore adopts a or to the status of dependent child would conflict not only with the letter of that provision, but also with its spirit.' How- ever, no rights are granted to a child born 18 — See, for example, Hans von der Groeben and others, Ulrich Wolker, Kommentar zum EU/EG-Vertrag [Commentary on EC Treaty], 5th Ed., Nomos, Baden-Baden, 1997, p. I-1148. 19 —Joined Cases 389/87 and 390/87 [1989] ECR 723. 21 — C-308/89 [1990] ECR I-4185. 20 — See paragraphs 19 and 20 of the judgment. 22 — Case C-7/94 [1995] ECR I-1031.

43. In determining the scope of Articles 10, 11 and 12 of Regulation No 1612/68 it is also important to consider who is a worker and when the status of worker comes to an end. Furthermore, the Court has also had occasion, independently of Articles 10, 11 and 12, to examine the social advantages to which the worker and members of his family are entitled. 4 6 . Under Article 7 of Regulation No 1612/68 a worker who is a national of one Member State may claim a social advantage in another Member State. 44. In Martinez Sala 24 the Court was According to the Court's case-law study called upon to provide a definition in finance granted to children of migrant Community law of the concept of worker workers is to be regarded as a social in the context of freedom of movement and advantage in favour of a migrant worker social security. The Court ruled as follows: within the meaning of Article 7(2) of 'In the context of Article 48 of the Treaty Regulation No 1612/68. 25 In Bernini the [now Article 39 EC] and Regulation Court held in that connection that 'study No 1612/68, a person who, for a certain finance granted by a Member State to the period of time, performs services for and children of workers constitutes for a under the direction of another person in migrant worker a social advantage within return for which he receives remuneration the meaning of Article 7(2) of Regulation must be considered to be a worker. Once (EEC) No 1612/68, where the worker con- the employment relationship has ended, the tinues to support the child. In such a case, person concerned as a rule loses his status the child may rely upon Article 7(2) in of worker, although that status may pro- order to obtain study finance under the duce certain effects after the relationship same conditions as are applicable to the has ended...' children of national workers, and no addi-

47. In Christini 27 the Court, in ruling that the reference to social advantages in Article 7(2) was not to be interpreted Article 18 EC restrictively, stated that: 'It therefore fol- lows that, in view of the equality of treat- ment which the provision seeks to achieve, the substantive area of application must be 48. In Martínez Sala 28 the Court con- delineated so as to include all social and tax sidered the question of citizenship of the advantages, whether or not attached to the European Union. However, it did not contract of employment...' express a view on the scope of Article 18 EC, notwithstanding a detailed exposition on that point in the Opinion of the Advocate General. In Kaba 29 the Court addresses Article 18 EC without expressly forming a view as to whether it has direct effect. The Court says that, as Community law currently stands, there is no uncon- To the question whether such an advantage ditional right in favour of nationals of one was to be granted to the widow and Member State to remain in the territory of children after the death of the migrant another Member State. That is to be worker, the Court replied that 'it would be inferred, inter alia, from Article 18 EC contrary to the purpose and the spirit of the which, though recognising that citizens of Community rules on freedom of movement the Union have the right to move and reside for workers to deprive the survivors of such within the territory of the Member States, a benefit following the death of the worker expressly refers to the limitations and con- whilst granting the same benefit to the ditions laid down in the Treaty and to the survivors of a national'. The Court went on measures adopted to give effect to it. to refer to the provisions of Regulation No 1251/70, in particular Article 3(1) thereof, which provides that, if a worker has acquired the right to remain in the territory of a Member State, the members of his family who are residing with him are 49. In his Opinion in Martínez Sala Advo- entitled to remain there after his death, and cate General La Pergola stated: 'Now, to Article 7 which provides that: 'the right however, we have Article 8a of the Treaty

50. The Advocate General points to the schematic context in which the right enshrined in Article 18 EC is placed by the Maastricht Treaty. He has this to say on it: 'Article 8a extracted the kernel from the other freedoms of movement — the 52. Advocate General Cosmas has also freedom which we now find characterised stated his views on the effect of Article 18 as the right, not only to move, but also to EC. In his Opinion in the Wijsenbeek 33 reside in every Member State: a primary case he showed himself to be an advocate right, in the sense that it appears as the first of the direct effect of that article. First, the of the rights ascribed to citizenship of the literal formulation of Article 18 EC mili- Union.... It is not simply a derived right, tated in favour of direct effect. The right of but a right inseparable from citizenship of every citizen of the Union to move and the Union... Citizenship of the Union comes reside freely within the territory of the through the fiat of the primary norm, being Member States was expressly recognised. conferred directly on the individual, who is He further pointed to the particular feature henceforth formally recognised as a subject of Article 18 EC which introduces into the of law who acquires and loses it together Community legal order a purely individual with citizenship of the national State to right mirrored in the right to freedom of which he belongs... Let us say that it is the movement which is constitutionally guar- fundamental legal status guaranteed to the anteed in the legal systems of the Member citizen of every Member State by the legal States. On those grounds it produced direct order of the Community and now of the effect by obliging Community and national Union....' 31 32 — See Christian Tomuschat, 'Commentary on Case C-85/96 Maria Martínez Sala v Freistaat Bayern', Common Market 30 — Opinion in Martínez Sala, cited at footnote 24, paragraph Law Review, 37, Kluwer Law International, Netherlands, 18. 2000, p. 453. 31 — Cited above at footnote 30. 33 — Case C-378/97 [1999] ECR I-6207.

55. In the last section of its judgment in Martinez Sala the Court examined whether a citizen who is lawfully residing in the territory of a host Member State can rely 54. Finally, I would refer to the Opinion of on the principle of non-discrimination Advocate General Léger in the Kaur 34 case enshrined in Article 12 EC. The Court in which it was stated that there must be a stated that such a citizen may rely on that cross-border element. Article 18 EC gov- article in all situations falling within the substantive scope of Community law. Equal treatment for migrant workers and 34 — Paragraph 28 of the Opinion in Case C-192/99 Kaur members of their families constitutes an [2001] ECR I-1237. important means of giving effect to free-

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dom of movement for workers, as may be result, in particular, from the fact that the inferred, inter alia, from Article 39(2) EC. spouse has indefinite leave to remain in the national territory or that the person apply- ing has already been resident for a con- siderable period.

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mental rights, as guaranteed, inter alia, by European Union's Charter of Fundamental the European Convention for the Protec- Rights 39 enshrines respect for family life. tion of Human Rights, as general principles However, as Community law currently of Community law. The Court has con- stands, that Charter has no binding force. sistently held that the fundamental rights laid down in the ECHR 'form an integral part of the general principles of law with which the law must ensure compliance' but only if the area to which the case pending before the Court relates falls within the scope of Community law. 37 For the present 60. In that connection principles concern- case the judgment in Commission v Ger- ing migration have also been established. 4 0 many 38is of specific relevance; in that case One of those principles is that the extent of the C o u r t held t h a t ' R e g u l a t i o n a State's obligation to admit to its territory No 1612/68 must also be interpreted in relatives of immigrants already established the light of the requirement of respect for there depends on the specific circumstances family life set out in Article 8 of the of the persons concerned and the general Convention for the Protection of Human interest. In accordance with generally Rights and Fundamental Freedoms'. accepted rules of international law, a State, having regard to its Treaty obligations, has the right to monitor access by foreigners to its territory. As far as immigration is concerned, Article 8 of the ECHR cannot be considered to impose on a State a general obligation to respect immigrants' choice of the country of their matrimonial residence and to authorise family reunion in its territory.

62. Freedom of movement for workers is in on that point, notably in Opinions of principle applicable only during the period Advocates General. In my view, it is, in which the worker is engaged in active however, clear that Article 18 EC has employment. The social advantages definite legal consequences, whose extent accruing to family members on the basis and scope are as yet unclear. of Regulation No 1612/68 from freedom of movement for workers may none the less continue to subsist after the end of the employment relationship. That is for example expressly provided for in the case of the death of the worker. More particu- larly, Article 10 of the Regulation confers a 64. The prohibition on discrimination is an social advantage — in the form of a right important means of attaining freedom of to remain — in favour of children who live movement for workers but is not so far- in a family relationship with the worker. reaching that members of the families of Article 12 gives children the right to con- persons from another Member State must tinue their studies even after their parents' be granted the same right to remain as the employment relationship comes to an end. family members of a national of the host Moreover, Article 12 does not require the country itself. Finally, the right to respect (continued) existence of a family relation- for family life under the ECHR forms part ship. In Echternach and Moritz 41 the Court of Community law at issue in the present applied a wide interpretation to that right case. However, that is not so far-reaching in favour of children by permitting them to that a Member State must authorise family return to the host country after a temporary reunion in its own territory. period of residence in their country of origin. I also deduce from the case-law on Article 7 of Regulation No 1612/68 that the Court applies a broad interpretation to the rights of members of the workers' family.

main proceedings before the referring The first two questions tribunal ('R' and Baumbast, hereinafter 'the appellants'), the Commission and the United Kingdom and German Govern- ments. At the hearing on 6 March 2001 the appellants, the Commission and the United Kingdom and German Govern- The observations ments made further submissions. In view of the extent of the various submissions, I shall merely reproduce the salient points thereof, and then express my view. The point of departure of my views is, on the one hand, the developments described in Part VI of my Opinion and, on the other, 67. In the 'R' case the appellants submit the state of EC law, as described in Part that the children entered the United King- VII. dom as members of a migrant worker's family and that they retain a right of installation under Article 10(1) of Regu- lation No 1612/68. The fact that their parents have in the meantime divorced is of no significance.

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69. The appellants go on to observe that family who are residing in the care and Article 12 of Regulation No 1612/68 is control of their mother, the only feasible linked to Article 10. Article 12 relates condition for attendance at school is to solely to children who had the right under enjoy continued residence with their Article 10 to install themselves. The appel- mother. lants state that in both cases the children meet the criteria under Article 12 whereby they recognise that the right to install oneself and to follow educational courses in the host country is not unlimited. In the 'R' case the children continue to be members of the family of the migrant worker who remains resident in the host country. In the Baumbast case the situation is comparable, albeit that the children's 71. The appellants go on to point out that father is no longer employed in the United the Baumbast and 'R' children are Kingdom. However, in Echternach and materially disadvantaged by comparison Moritz, 42 that fact was held to be irrel- with children of a marriage between a evant to the continued existence of British citizen and a foreign woman. The children's rights under Article 12. The mother of those children would receive appellants further observe that in both indefinite leave after 12 months, irrespec- cases the children could not move to the tive of the fate of the family links there- countries of which they are nationals. They after. This is a benefit of advantage to the have no family member there and also do worker who knows that his family life will not speak French (the 'R' children) or not be adversely affected by immigration German (the Baumbast children). A move considerations in the event of divorce. would jeopardize continuity of their edu- cation.

74. More generally, the appellants dwell on the continued right to remain in favour of 76. The Commission observes that the persons who had the right under Article 10 right under Article 10 of Regulation to install themselves in a host country. No 1612/68 is a derived right dependent Article 10 of Regulation No 1612/68 deals on the migrant worker. Article 12 — con- with dependants having the right 'to install cerning the pursuit of studies — is not a themselves' with the worker. 'Installation' self-standing right of residence but is is to be regarded as a once-for-all action merely intended to ensure that the worker's rather than as a continuous action. Accord- children have access to education under the ingly they do not need to be permanently same conditions as children who are installed with the worker. Nor do they after nationals of the host country. installation have to continue to satisfy the criteria of Article 10. In Gaal 43 the Court upheld the right to access to education of a worker's child of over 21 who was no longer dependent on the worker. As a further example the appellants mention the case where a worker dies. In a number 77. A distinction must be drawn, according of circumstances Community law acknowl- to the Commission, between the case where edges a right to remain in favour of the one of the parents continues to be a worker surviving spouse (see Article 3(2) of Regu- in the host country ('R') and the case where lation No 1612/68 and the judgment in the parent is no longer a worker (Baumb- Christini 44 ). ast). In the former case the children retain their right of residence on the basis of their relationship with the worker. That con- clusion is not altered by the fact that the children do not live under the same roof as their father. 45 The second case is more complex. The essential requirement for a right of residence, that is to say the 75. In summary the appellants submit as relationship with the worker, is not fulfil- follows: where family members have led. The more difficult question is whether

78. The Commission deals only briefly — The wording 'best possible conditions' with the question of the mother's right of refers not to the domestic conditions of residence in both cases. Mrs R is no longer the child but to educational and train- a member of the family of a migrant ing facilities. worker and cannot assert a right of resi- dence on that ground. Nor may Mrs Baumbast do so, since the conditio sine qua non of her entitlement, namely her husband's status as a worker, has been lost. The Commission acknowledges the clear consequence of that conclusion for the — Under United Kingdom domestic law children's right of residence. UK national children do not have the right to require the State to admit non-national parents or carers. To 46 — See also point 41 hereof. admit primary carers of children from

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another Member State would not be to Assessment place such children on an equal footing but would be to place them in a more beneficial position than British children.

82. The first question submitted by the referring tribunal concerns the right of the 'R' and Baumbast children to remain in the United Kingdom.

83. In the case of the 'R' children the reply — To answer Question 2 in the affirm- to that question is straightforward. Those ative would lead to the absurd result children have a right to remain under that persons such as Mr Baumbast Article 10 of Regulation No 1612/68. That would gain a derivative right to reside right continues to subsist even after the from what was in itself a derivative divorce of their parents as long as the father right which his children derived from continues to have the status of worker him. within the meaning of Article 39 EC. In Diatta 4 7 it was held not to be necessary for the children to be living under the same roof as their father.

Article 39 EC — are to be admitted to 87. In replying to this question it is not educational courses if they are residing in enough for me merely to analyse the word- the territory of the Member State con- ing of the regulation, as interpreted in the cerned (in this case the United Kingdom). Court's case-law. As I already stated at Echternach and Moritz establishes that point 34 above, the Community legislature children whose worker/parent has left the has failed to have regard to cases where the country have the right to continue in the family or working situation changes after host country studies already commenced entry into the host country, as in the case of there. As the Court further held in that the 'R' and Baumbast families. Only the judgment, in such cases children retain the case of the worker's death is provided for in status of member of a worker's family Regulation No 1251/70. On this point within the meaning of Regulation European legislation on freedom of move- No 1612/68 and thus their right to remain. ment for workers no longer meets the needs of the time. In other words the legislation is in need of overhaul.

85. In my view that reasoning applies equally to the 'R' children in the hypo- thetical event that their father should no 88. For those reasons Community law longer continue to be a worker within the needs to be interpreted in such a way as meaning of Article 39 EC in the United to take account of changes in social con- Kingdom. For the 'R' children's right to ditions. In that way the lacunae which have remain can also be founded on Article 12 appeared in Community legislation as a of Regulation No 1612/68. For the pur- result of a failure to overhaul it can be poses of Article 12 their situation is entirely prevented from resulting in undesired legal identical to that of the Baumbast children. consequences.

90. First, the interpretation of Regulation capable of actually being exercised, in No 1612/68 must do justice to the central which connection the second paragraph of objective of the regulation which I may Article 12 encourages all efforts made to summarise as being to facilitate the attain- enable such children to attend those courses ment of the objectives of Article 39 EC. under the best possible conditions. Subsequent complications concerning the family's ability to reside must be precluded from deterring the worker from going to work in another Member State. In deciding whether or not to go and work in another Member State certainty or otherwise as to the children's education frequently plays an important role. In the furtherance of free- dom of movement for workers it is there- fore important that education be guaran- 92. In that connection I would also draw teed as far as possible by Community law. attention to the prohibition of discrimi- nation on the ground of nationality. In Martínez Sala 49 the Court established that a citizen of the European Union who is lawfully residing in the territory of another Member State may rely on that prohibition in all situations falling within the sphere of Community law. I would also recall the judgment in Echternach and Moritz. 5 0 The Court stated that treatment on the same footing as a country's own nationals encourages the integration of the children in the host Member State. It may be inferred from these two judgments, read 91. Secondly, the children's right to remain in conjunction, that the parent carer's right under Article 12 of Regulation No 1612/68 to remain can be justified by the children's would be rendered nugatory if the parent right to equal treatment. carer were not allowed to remain in the host Member State. I would recall that the adjudicator in the national proceedings in the Baumbast case adverted to the possible consequence of an illusory right to remain in favour of the children. This consequence prompted him to grant Mrs Baumbast — temporary — leave to remain in the United Kingdom. 48 In other words what is at stake here is the efficacy of Article 12 93. Finally, recognition of a right to remain of Regulation No 1612/68. The right of in favour of the parent carer is also of children to be able to continue their studies importance in connection with the ECHR in the host Member State must also be and, in particular, Article 8 thereof which

96. In the appellants' view Article 18 EC 51 — At point 58 hereof I already discussed the significance for has direct effect. In that connection they Community law of the fundamental rights laid down in the ECHR. In addition to Article 8 of the ECHR see also the refer to the Court's case-law and to aca- comparable, but non-binding, Article 7 of the Charter of Fundamental Rights of the European Union. demic writings. The fact that the right to

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97. The appellants state that Mr Baumbast is no longer exercising rights under Article 39 EC. In his case Article 18 EC must be interpreted in such a way that he retains his right to remain in the United Kingdom during the time that he is a 99. The United Kingdom Government worker outside the European Union. This points to the conditions laid down in Article 18 EC right of residence serves to Article 18(1) EC. That indicates that bridge the gap during the period while he is Article 18 EC does not create a universal physically absent from the United King- and absolute right to free movement and dom, that is to say the period between his residence going beyond the rights already departure — as a worker within the mean- conferred under the EC Treaty and second- ing of Article 39 EC — and his permanent ary legislation. That does not mean that return to the United Kingdom. In that Article 18 EC is devoid of legal effect. It connection the appellants also point out elevates the rights previously granted by that the difficulties faced by Mr Baumbast's secondary legislation to the status of rights family would not have arisen if the case had granted by the EC Treaty and provides the involved the members of the family of a Council with competence to adopt new British national. The refusal of residence rights to the spouse of Mr Baumbast constitutes discrimination contrary to 52 — See point 52 hereof.

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measures to facilitate the exercise of rights they are justified and do not impinge on the of free movement. 53 very essence of the right.

101. The third question submitted by the referring tribunal primarily concerns the direct effect of Article 18 EC. At point 49 103. The central question as to the legal et seq. hereof I cited the Opinions of nature of Article 18(1) EC may in my view Advocate General La Pergola in Martinez be formulated in these terms: does a citizen Sala and of Advocate General Cosmas in have a right under Article 18(1) EC to the Wijsenbeek case; both expressed them- move and reside anywhere in the European selves in favour of direct effect. Advocate Union or must Article 18(1) EC be char- General La Pergola states that the right to acterised as a legal principle which requires move and to reside is inextricably linked to be given actual effect elsewhere in with citizenship. The limitations mentioned Community law? In view of the wording in Article 18(1) EC concern in his view the of Article 18(1) EC this question can be actual exercise of the right and not the answered only in one way. This provision existence of the right itself. Advocate creates for citizens of the European Union a General Cosmas infers direct effect from, right to move and to reside. In my view the inter alia, the literal formulation of clear and unconditional wording of the first Article 18(1) EC. He goes on to state that part of Article 18(1) EC cannot be inter- exercise of that right may be made subject preted in any other way. The activities to to restrictions and conditions so long as which that provision refers, namely to 'move' and to 'reside', do not require

53 — The United Kingdom Government refers, inter alia, to Case T-66/95 Küchlenz-Winter v Commission [1997] ECR II-637, paragraph 47. 54 — See point 52 hereof.

further particularisation. Thus, in my view, 105. Article 18 EC adds to these two sets Article 18(1) EC has direct effect. That was of rules a general right of residence in also the reasoning of Advocate General favour of citizens of the European Union. Cosmas. In the words of Advocate General La Pergola, that right is inseparable from citizenship. Article 18 EC — and these are my words — establishes a fundamental right in favour of citizens of the European Union to move and reside freely within it. It subsumes the rights to move and to reside in favour of both economically active and economically non-active citizens under a single denominator. For the economically non-active Article 18 EC has additional significance. Since the introduction of Article 18 EC — in the Maastricht Treaty — the right to move and reside in 104. The scheme of the EC Treaty and the favour of economically non-active persons legislation adopted under it provide a stems directly from the Treaty and is no second argument in favour of direct effect. longer fully subject to the assessment of Community legislation on freedom of those entrusted with the enactment of movement for persons is addressed to two secondary legislation. distinct categories of persons. 55 The first category concerns persons who move or reside within the European Union in the context of their economic activity. Their specific rights are provided for by or pursuant to Treaty provisions concerning freedom of movement for workers (Ar- ticle 39 EC et seq.), freedom of establish- ment (Article 43 EC et seq.) and freedom to provide services (Article 49 EC et seq.). I shall refer to them as (economic) activities. The second category concerns persons who travel or reside within the European Union independently of any economic activity, that is to say economically non-active 106. There is a third argument, of a persons, such as, for example, students or teleological nature, in favour of direct pensioners. Their rights are based on sec- effect. If the right to move and reside were ondary Community law, namely Directive wholly dependent on specific privileges 90/364 and Directives 90/365 and 93/96, established by or pursuant to the EC which are related to the former. Thus, for Treaty, that right would risk losing signifi- both categories particular sets of rules, cance or, in other words, its efficacy. A which are not directly interconnected, have provision couched in general terms, such as come into being. Article 18(1) EC, which does not distin- guish between the various (sub)categories of addressees, fulfils a necessary function in 55 — Sec also point 34 hereof. securing the objective pursued by the I - 7128

107. Thus far I have still said nothing concerning the substantive significance of Article 18 EC. It is true that the second part of Article 18(1) EC makes the right to move and reside subject to the limitations and conditions laid down elsewhere in Community law. Other provisions of Com- munity law, such as for example Article 39 EC, therefore determine as a matter of principle the scope of the right laid down in 110. First, the unconditional nature of the Article 18 EC. first part of Article 18(1) EC entails that the right of residence must be a recognis- able right of substance for citizens. In this respect Article 18 EC is in the nature of a guarantee provision. The article lays down requirements to be met by EC law in the area of freedom of movement for persons. The conditions laid down by EC law may 108. I therefore share the view of the not be arbitrary and may not deprive the matter formed by the Court in Kaba (cited right of residence of its substantive content. in footnote 29) that the rights laid down in In that connection I refer to the require- Article 18(1) EC are not unlimited. Pre- ments laid down by Advocate General cisely if, as I advocate, those provisions are Cosmas which are to be met by any con- recognised as having direct effect, the con- ditions and limitations on the right of ditions and limitations to which exercise of residence. I also find support for my view the right to move and reside is subject are in the Charter of Fundamental Rights of the closely connected to them. For the con- European Union. Article 45 of that charter ditions and limitations serve to protect which, as I have said, is non-binding obvious public concerns such as public recognises a right of residence in favour of order and security, public health and the citizens of the Union, 56 w h e r e a s financial interests of the Member States. Article 52(1) provides as follows in regard to restrictions on the exercise of rights recognised by the Charter. They must 'respect the essence of those rights and freedoms. Subject to the principle of pro- portionality, limitations may be made only if they are necessary and genuinely meet 109. In light of the foregoing I conclude that Article 18(1) EC has substantive sig- nificance in two respects. In those two 56 — That article is a literal replication of the first part of respects Article 18 EC has additional value Article 18 EC.

115. Finally, the unambiguous nature of Article 18(1) EC entails that a person not entitled to a right of residence under other provisions of Community law can none the less acquire such a right by reliance on 113. For the economically active citizen the Article 18 EC. Since there is no single Treaty itself and the rules adopted under it general and all-embracing set of rules provide for a regime for freedom of move- concerning the exercise of the right of ment which affords the citizen the requisite residence in Community law recourse must guarantees. In principle Article 18 EC adds be had in cases for which the Community nothing in that regard. It is true that the legislature has made no provision to rules on freedom of movement for workers Article 18 EC. However, that does not are not in all circumstances appropriately mean that an unrestricted right of residence tailored to changed social conditions (see is recognised in those — special — cases. point 34 above). In interpreting the rel- The conditions and limitations imposed on evant provisions of Community law the that right by EC law must be applied by Court must, in my view, have regard as far analogy as far as possible to persons who as possible to those changed circumstances. derive their right to reside directly from I - 7130

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120. The reason why Mr Baumbast cannot derive any rights from Article 39 EC and Regulation No 1612/68 has to do with the 117. However, there is a more important fact that the rules on freedom of movement reason why Mr Baumbast has no right to for persons have not kept up with the pace reside under Directive 90/364. For he of developments. Those rules came into continues to be active as an employed force at the end of the 1960s and have since person; only he is no longer employed in then not been brought up to date to reflect the United Kingdom. For those reasons it is changes in society. I discussed this situation logical that the rules concerning economi- in some detail above (point 22 et seq.). On cally active persons be applied by analogy, and not those concerning non-economically active persons. 57 — See the fourth recital in the preamble to the directive.

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adoption of the regulation manifestly no 123. In paragraphs (b) and (c) of its third account was taken of a case in which a question the referring tribunal also raises person is ordinarily resident in one Member the question of the rights of members of Mr State whilst working for short periods and Baumbast's family. In my view the reply to in different places for an undertaking which be given in this regard can be brief. The is established in another Member State. right of residence to which Mr Baumbast is entitled under Article 18 EC also operates in favour of his spouse and their children. However, in the present case, that finding is of no significance to them since in my view they already have a right to remain under Regulation No 1612/68.

125. I have said that, under certain specific The effect of the unambiguous nature of conditions, Regulation No 1612/68 gives Article 18(1) EC can be that in special the parent carer the right to remain in the cases, such as that of Mr Baumbast, in host Member State for the purpose of the which a right to move and reside does not children's education. In my view it would exist under other provisions of Community be going too far to infer such a right in law, a right to move and to reside is derived favour of the parent who is not the primary directly from Article 18(1) EC. The extent carer. Nor can such a right be subsumed of Mr Baumbast's right is determined by under the right to respect for family life, as application by analogy of the conditions safeguarded under Community law. There and limitations imposed on freedom of are real alternatives available to the movement for workers. Baumbast family in order to be able to live in a family relationship, for example by the family following the father in his various occupational activities or by establishing itself in Germany. I refer in that connection to case-law of the European Court of Human Rights to the effect that Article 8 of the ECHR cannot be considered to impose on a State a general obligation to respect immigrants' choice of the country of their matrimonial residence and to auth- orise family reunion in its territory.

The fourth question

127. I am of the view that there is no need to give a reply to the fourth question. If the Court should share my conclusion concern- 126. I would summarise the foregoing as ing the third question, namely that Mr follows. Article 18(1) EC gives the citizen Baumbast has a right of residence as a the right to move and reside freely within citizen of the European Union, the fourth the European Union. The extent of that question does not arise. If however the right is determined by the conditions and Court should take the opposite view in its limitations laid down by or pursuant to the reply to the third question, a reply to the EC Treaty. However, those conditions and fourth question merely constitutes a repeti- limitations may not result in the citizen's tion of the replies to the first and second right being robbed of substantive content. questions.

On the third question: Article 18(1) EC gives the citizen the right to move and reside within the European Union. The extent of that right is determined by the I - 7134

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conditions and limitations laid down by or pursuant to the EC Treaty. However, those conditions and limitations may not result in the citizen's right being robbed of substantive content. The effect of the unambiguous nature of Article 18(1) EC can be that in special cases, such as that of Mr Baumbast, in which a right to move and reside does not exist under other provisions of Community law, a right to move and to reside is derived directly from Article 18(1) EC. The extent of Mr Baumbast's right is determined by application by analogy of the conditions and limitations imposed on freedom of movement for workers.

On the fourth question: there is no need to reply to this question.

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