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Judgment of the Court (Sixth Chamber) of 13 November 1990.

Carmina di Leo v Land Berlin.

Reference for a preliminary ruling: Verwaltungsgericht Darmstadt - Germany.

Non-discrimination - Child of a Community worker - Educational grant.

Case C-308/89.

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Judgment of 13 November 1990, Di Leo / Land Berlin (C-308/89, ECR 1990 p. I-4185) (SVX/00583 FIX/00607) ECLI:EU:C:1990:400

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Carmina di Leo v Land Berlin.

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Keywords

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Free movement of persons - Workers - Equal treatment - Access to education for a worker' s children - Studies pursued in a State other than the host State - Entitlement to the grant awarded by the host State to its nationals in the event of studies abroad - Studies pursued in the Member State of which the person concerned is a national - No effect

( Regulation No 1612/68 of the Council, Art . 12 )

Summary

Article 12 of Regulation No 1612/68 lays down a general rule which, in matters of education, requires every Member State to ensure equal treatment between its own nationals and the children of workers who are nationals of another Member State established within its territory . Accordingly, where a Member State gives its nationals the opportunity to obtain a grant in respect of education or training provided abroad, the child of a Community worker must enjoy the same advantage if he decides to pursue his studies outside the host State .

That interpretation cannot be invalidated by the fact that a person seeking education or training decides to follow a course in the Member State of which he is a national . Neither the condition of residence laid down by Article 12 nor the objective pursued by Regulation No 1612/68 justifies such a restriction which, moreover, would lead to another form of discrimination against the children of Community workers by comparison with nationals of the host Member State .

Parties

In Case C-308/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht ( Administrative Court ), Darmstadt, for a preliminary ruling in the proceedings pending before that court between

Carmina di Leo

and

Land Berlin,

on the interpretation of Article 12 of Regulation ( EEC ) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community ( Official Journal, English Special Edition 1968 ( II ), p . 475 ),

THE COURT ( Sixth Chamber ),

composed of : G . F . Mancini, President of Chamber, T . F . O' Higgins, M . Díez de Velasco ( Presidents of Chambers ), C . N . Kakouris and P . J . G . Kapteyn, Judges,

Advocate General : M . Darmon

Registrar : H . A . Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of

the Government of the Federal Republic of Germany, by E . Roeder and G . Leibrock, of the Federal Ministry of Economic Affairs, acting as Agents,

the Government of the Italian Republic, by Professor Luigi Ferrari Bravo, Head of the Legal Department at the Ministry of Foreign Affairs, acting as Agent, assisted by P . G . Ferri, avvocato dello Stato,

the Commission of the European Communities, by J . Pipkorn and H . Lima, Legal Advisers, acting as Agents,

having regard to the Report for the Hearing,

after hearing oral argument submitted on behalf of Carmina di Leo by V . Raschendorfer, of the Gedern Bar, and on behalf of the Netherlands Government by T . Heukels, from the Ministry of Foreign Affairs, acting as Agent, at the hearing on 28 June 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 3 October 1990,

gives the following

Judgment

Grounds

1 By order of 11 September 1989, which was received at the Court on 9 October 1989, the Verwaltungsgericht Darmstadt referred a question to the Court pursuant to Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of Article 12 of Regulation ( EEC ) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community .

2 That question arose in proceedings instituted by Carmina di Leo, an Italian national, against the refusal of the competent German authorities to award her the educational grant provided for by the Bundesausbildungsfoerderungsgesetz ( Federal Law on Grants for Training and Further Education, hereinafter referred to as the "BAFoeG ") on the ground that the educational grant applied for by her was awarded only to Germans within the meaning of the Grundgesetz ( Basic Law ), to stateless persons and to foreigners entitled to asylum .

3 In the version of the BAFoeG in force at the material time, the educational grant for attendance at courses outside the territory of the Federal Republic of Germany could be granted only to Germans within the meaning of the Grundgesetz, to stateless persons, to foreigners entitled to asylum and to refugees . As a result of an amendment with effect from 1 July 1988, the grant is also awarded to persons seeking education or training who, as children of nationals of a Member State, enjoy freedom of movement or the right of residence by virtue of Community law . However, nationals of a Member State of the Community do not qualify for the grant where the education or training is provided in a State of which they are nationals .

4 It is apparent from the documents before the Court that Miss di Leo is the daughter of an Italian migrant worker who has been employed for the past 25 years in the Federal Republic of Germany . She received her primary and secondary education in Gedern ( Federal Republic of Germany ), where she also has her principal residence . In view of the numerus clausus applied in German medical faculties, she enrolled to study medicine at the University of Sienna in Italy . It is in respect of that course that she was refused the educational grant under the BAFoeG .

5 The national court considered that the lawfulness of the German authorities' decision could depend on the question whether or not Article 12 of Regulation No 1612/68 requires a Member State whose legislation provides for a grant to cover education or training abroad to award such a grant to persons in the situation of the plaintiff in the main proceedings .

6 In those circumstances the Verwaltungsgericht Darmstadt stayed the proceedings in order to refer the following question to the Court for a preliminary ruling :

"Is Article 12 of Council Regulation ( EEC ) No 1612/68 of 15 October 1968 to be interpreted as meaning that children who come within the scope of its provisions are to be treated in the same way as nationals, not only where the education or training is pursued in the host State, but also where such children receive their education or training in another Member State of which they are nationals?"

7 Reference is made to the Report for the Hearing for a fuller account of the relevant provisions, the facts of the case, and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 Article 12 of Regulation No 1612/68 provides that the children of a migrant worker are to be admitted, under the same conditions as nationals of the host country, to that State' s general educational, apprenticeship and vocational training courses if such children are residing in its territory .

9 It should be noted at the outset that according to the case-law of the Court ( see the judgment in Joined Cases 389 and 390/87 Echternach and Moritz v Minister for Education and Science [1989] ECR 723 ), Article 12 refers not only to the rules relating to admission itself, but also to general measures intended to facilitate educational attendance . In that regard, the Court considered, inter alia, that the status of a child of a Community worker implies, in particular, that it is recognized in Community law that such children must be eligible for study assistance from the State in order to make it possible for them to achieve integration in the society of the host country . This means, according to the Court, that the children of Community workers are entitled to assistance granted to cover the costs of students' education and maintenance under the same conditions as apply to the host country' s own nationals .

10 The reference for a preliminary ruling raises, however, the question whether that right to equal treatment in the sphere of education and training may also be relied upon by a child of a Community worker where the education or training is provided in a State other than the host country and, in particular, in a State of which he is a national .

11 In that regard the German Government and, at the hearing, the Netherlands Government, argued that the equal treatment provided for in Article 12 is not binding on a Member State if the children of a migrant worker leave to study abroad, in particular, because Article 12, according to its wording, applies solely to children residing within the territory of the host country . Furthermore, according to those two governments, the aim of Article 12 is to promote the integration of the worker and his family in the host country . If the child of a Community worker pursued his studies in another country, that does not promote his integration in the host country .

12 Those arguments cannot be upheld . According to its actual wording, Article 12 is not confined to education or training within the host country . The condition of residence, laid down by Article 12 of Regulation No 1612/68, is designed to restrict equal treatment as regards the advantages referred to in that article solely to the children of Community workers who reside within their parents' host country . However, it does not mean that the right to equal treatment depends on the place in which the child concerned pursues his studies .

13 It must also be borne in mind that the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker' s family in the society of the host country . If such integration is to be successful, it is essential for the child of a Community worker who resides with his family in the host Member State to have the opportunity to choose a course under the same conditions as a child of a national of that State .

14 Furthermore, Article 7(2 ) of Regulation No 1612/68, which provides that a worker who is a national of a Member State is to enjoy, in the territory of the other Member States, the same social advantages as national workers, requires a Member State, where it gives its national workers the opportunity of pursuing education or training provided in another Member State, to extend that opportunity to Community workers established within its territory ( see the judgment in Case 235/87 Matteucci v Communauté française de Belgique [1988] ECR 5589 ).

15 The same principle must apply to children of Community workers who are covered by Article 12 . That article lays down, in the same way as Article 7(2 ), a general rule which, in matters of education, requires every Member State to ensure equal treatment between its own nationals and the children of workers who are nationals of another Member State established within its territory . Accordingly, where a Member State gives its nationals the opportunity to obtain a grant in respect of education or training provided abroad, the child of a Community worker must enjoy the same advantage if he decides to pursue his studies outside the host State .

16 That interpretation cannot be invalidated by the fact that a person seeking education or training decides to follow a course in the Member State of which he is a national . Neither the condition of residence laid down by Article 12 nor the objective pursued by Regulation No 1612/68 justifies such a restriction which, moreover, would lead to another form of discrimination against the children of Community workers by comparison with nationals of the host Member State .

17 For all those reasons, the answer to be given to the national court should be that Article 12 of Regulation No 1612/68 must be interpreted as meaning that children coming within that provision are to be treated as nationals for the purposes of the award of educational grants, not only where the education or training is pursued in the host State but also where it is provided in a State of which those children are nationals .

Decision on costs

Costs

18 The costs incurred by the Government of the Federal Republic of Germany, the Government of the Kingdom of the Netherlands, the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

Operative part

On those grounds,

THE COURT ( Sixth Chamber ),

in answer to the question referred to it by the Verwaltungsgericht Darmstadt, by order of 11 September 1989, hereby rules :

Article 12 of Regulation ( EEC ) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as meaning that children coming within that provision are to be treated as nationals for the purposes of the award of educational grants, not only where the education or training is pursued in the host State but also where it is provided in a State of which those children are nationals .

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