61987J0389

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1 . Free movement of persons - Worker - Concept - National of a Member State employed by an international organization - Covered

( EEC Treaty, Art . 48; Regulation No 1612/68 of the Council )

2 . Free movement of persons - Workers - Member of a worker' s family - Concept - Child pursuing his studies in the host country after the worker has returned to his country of origin - Covered

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

3 . Free movement of persons - Workers - Rights of members of the family deriving from Community law - Subjection of family member' s rights to the issue of a residence permit - Not admissible

( EEC Treaty, Art . 48; Directive 68/360 of the Council, Art . 4 )

4 . Free movement of persons - Workers - Right of a worker' s children to access to education provided by the host Member State - Education - Concept

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

5 . Free movement of persons - Workers - Equal treatment - Social advantages - Concept - Grant awarded for maintenance and training with a view to the pursuit of secondary or further education - Grant to children of a worker who is a national of another Member State

( Regulation No 1612/68 of the Council, Art . 7(2 ) and Art . 12 )

1 . A national of a Member State who in another Member State occupies a post governed by a special statute under international law, such as for example a post at the European Space Agency, must be regarded as a worker within the meaning of Article 48(1 ) and ( 2 ) of the Treaty and is entitled, as are the members of his family, to the rights and privileges prescribed in those provisions and in Regulation No 1612/68 on freedom of movement for workers within the Community .

2 . The equal treatment, in relation to national workers, to which workers of a Member State who are employed in another Member State are entitled as regards the benefits granted to members of their families contributes to their integration in the society of the host country, in accordance with the aims of the freedom of movement for workers . For such integration to come about, a child of a Community worker must have the possibility of going to school and pursuing further education in the host country in order to be able to complete that education successfully . When, after his father' s return to the Member State of origin, the child of such a worker cannot continue his studies there because of the non-coordination of school diplomas and has no choice but to return to the country where he attended school in order to continue studying, he retains the status of member of a worker' s family within the meaning of Regulation No 1612/68 .

3 . The right of nationals of a Member State to enter the territory of another Member State and reside there for the purpose of seeking or pursuing an occupation or rejoining their spouses or families is a right conferred directly by the Treaty or by the provisions adopted for its implementation . The issue of a residence permit does not create the rights guaranteed by Community law and the lack of a permit cannot affect the exercise of those rights . Therefore, the enjoyment of the rights which a member of the family of a worker of a Member State derives from the provisions of Community law may not be made subject to the grant of a residence permit which meets certain conditions .

4 . The equal treatment in the matter of education which the children of Community workers have under Article 12 of Regulation No 1612/68 extends to all forms of education, whether vocational or general, including university courses in economics and advanced vocational training at a technical college .

5 . Assistance granted to cover the costs of students' education and maintenance is to be regarded as a social advantage to which the children of Community workers are entitled under the same conditions as apply to the host country' s own nationals .

In Joined Cases 389 and 390/87

REFERENCES to the Court under Article 177 of the EEC Treaty by the Commissie van Beroep Studiefinanciering for preliminary rulings in the proceedings pending before that tribunal between

G . B . C . Echternach, residing at Voorburg,

and

Netherlands Minister for Education and Science

and between

A . Moritz, residing at Enschede,

and

Netherlands Minister for Education and Science,on the interpretation of Article 48 of the EEC Treaty and 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 : T . Koopmans, President of Chamber, G . F . Mancini, C . N . Kakouris, F . A . Schockweiler and M . Díez de Velasco, Judges,

Advocate General : M . Darmon

Registrar : J . A . Pompe, Deputy Registrar

after considering the observations submitted on behalf of

the Netherlands Government, by E . F . Jacobs, Secretary-General of the Ministry of Foreign Affairs, in writing, and M . A . Fierstra, acting as Agent, orally,

the Portuguese Government, by L . Fernandes, Head of the Legal Affairs Directorate in the Directorate-General for the European Communities, assisted by L . Real, Legal Officer in the Directorate-General for the European Communities, acting as Agents,

the Commission of the European Communities, by D . Gouloussis, Legal Adviser, and B . J . Drijber, a member of its Legal Department, acting as Agents,

having regard to the Report for the Hearing and further to the hearing on 14 December 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 25 January 1989,

gives the following

Judgment

1 By two orders of 24 December 1987, which were received at the Court on 30 December 1987, the Commissie van Beroep Studiefinanciering ( Study Finance Appeals Committee ) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions relating to the interpretation of Article 48 of the Treaty and 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 ), in particular Article 12 thereof .

2 Those questions were raised in proceedings brought by two students of German nationality against the decision of the competent Netherlands authorities refusing to award them the grants provided for by the Netherlands Wet op de Studiefinanciering ( Law on Study Finance ) of 24 April 1986 ( Staatsblad 1986, p . 252 ). Those proceedings were brought before the Commissie van Beroep Studiefinanciering, a special administrative tribunal set up under the abovementioned law .

3 The Netherlands authorities based their refusal on the fact that, under the relevant national legislation, the two students in question did not fall into the category of foreign students to be "treated in the same way" as Dutch students . Neither of them held the residence permit provided for in the legislation relating to aliens, to which the Wet op de Studiefinanciering refers in defining the categories of foreign students to be treated in the same way as Dutch students .

4 The tribunal seised of the matter considered that the legality of the contested decisions could depend on the question whether the two students concerned were to be regarded as members of the family of a worker of another Member State within the meaning of Article 48 of the EEC Treaty and Regulation ( EEC ) No 1612/68 . It therefore stayed the proceedings and referred to the Court for a preliminary ruling 11 questions, six in Case 389/87 and five in Case 390/87, which are set out in full in the Report for the Hearing .

5 Those questions were prompted in particular by certain arguments put forward by the Netherlands authorities, namely that

( i ) Mr Echternach, the student in Case 389/87, is not a child of a Community worker because his father occupies a post in an international organization in the Netherlands and the freedom of movement for workers provided for in the Treaty does not therefore apply to him;

( ii ) Mr Moritz, the student in Case 390/87, is not a child of a worker of another Member State because his father has returned to his country of origin after having been employed in the Netherlands;

( iii ) the study finance provided for in the Netherlands legislation is not one of the rights or benefits to which members of the families of Community workers should be entitled under Community law .

6 The preliminary questions concern the following points :

A - the status of worker of a Member State, within the meaning of Article 48 of the Treaty ( Case 389/87, Questions 1 and 2 );

B - the status of "member of the family" of a worker, within the meaning of Regulation No 1612/68 ( Case 390/87, Question 3 );

C - the right of residence of members of workers' families ( Case 389/87, Questions 3 and 4; Case 390/87, Question 2 );

D - the nature of the education to which members of workers' families must have access ( Case 389/87, Question 6; Case 390/87, Question 5 );

E - the nature of the study finance for which members of workers' families must be eligible ( Case 389/87, Question 5; Case 390/87, Questions 1 and 4 ).

7 The preliminary questions should be considered in that order .

8 Reference is made to the Report for the Hearing for a fuller account of the legal and factual background to the main proceedings and of 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 .

A - The status of worker of a Member State

9 In the first group of questions, the national court seeks to ascertain whether a national of a Member State who, in another Member State, occupies a post governed by a special statute under international law, such as for example a post at the European Space Agency ( ESA ), is to be regarded as a worker of a Member State within the meaning of Article 48(1 ) and ( 2 ) of the Treaty and, if so, whether such a post constitutes "employment in the public service", to which, according to Article 48(4 ), the other provisions of that article do not apply .

10 The Netherlands Government has explained that the ESA is an international organization governed by public law and that the members of its staff enjoy privileges and immunities under a special protocol which exempts them, inter alia, from any measures restricting immigration adopted by the host country . Consequently, a member of the staff of an international organization such as the ESA may not rely on Article 48 of the Treaty since his legal relationship with the host country is governed solely by the provisions of the protocol on privileges and immunities .

11 In that regard, it must be stated that a Community national working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 48(1 ) of the Treaty through occupying a post within an international organization, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement concluded between the international organization and the State in which it is established .

12 It follows, in particular, that a child of such a worker who is a national of a Member State may not be refused the rights and privileges which Article 48 of the Treaty and Regulation No 1612/68 afford him .

13 The Netherlands Government also maintains that the occupying of a post within an international organization such as the ESA must be regarded as employment in the public service to which the provisions of Article 48 do not apply, in accordance with paragraph ( 4 ) of that article .

14 In that regard, it is sufficient to point out, without its being necessary to examine the nature of the employment in question, that Article 48(4 ) provides only that Member States may exclude nationals of other Member States from access to certain posts in the public service; however, this does not mean that persons whom the Member States have none the less appointed to such posts may be excluded from Community treatment .

15 The answer to be given to the national tribunal on this point should therefore be that a national of a Member State who in another Member State occupies a post governed by a special statute under international law, such as for example a post at the European Space Agency, must be regarded as a worker within the meaning of Article 48(1 ) and ( 2 ) of the Treaty and is therefore entitled, as are the members of his family, to the rights and privileges prescribed in those provisions and in Regulation No 1612/68 of the Council .

B - The status of "member of the family" of a worker of a Member State

16 In the second group of questions the Commissie van Beroep Studiefinanciering inquires whether a child of a worker of a Member State who has been employed in another Member State may be regarded as a member of a worker' s family within the meaning of Regulation No 1612/68 when that child, after leaving the territory of the host country with his family in order to live in the country of origin, returns alone to the host country in order to continue his studies, which he could not pursue in the country or origin .

17 Those questions relate to the particular situation of Mr Moritz, who arrived in the Netherlands at the age of five and received his primary and secondary education there . His father was at that time employed in the Netherlands branch of a Dutch-German uranium enrichment undertaking located at Almelo in the eastern Netherlands . When the son began his studies at technical college, the father was transferred to the German branch of the same undertaking at Gronau, in Germany, 15 kilometres from Almelo, where he installed himself with his family . However, the son was unable to continue his studies there because the German college ( Fachhochschule Muenster ) did not recognize his Netherlands diplomas . He therefore enrolled again at the Netherlands establishment he had attended at Enschede, not far from Almelo, where he took up residence some time later .

18 The Netherlands Government considers that the student in question cannot be regarded as a member of a Community worker' s family because his father is no longer working in the Netherlands and is thus not covered by Article 48 of the Treaty or by Regulation No 1612/68 . Moreover, the student left the Netherlands in order to settle in Germany with his parents; only later did he return to live in the Netherlands .

19 The Portuguese Government and the Commission take a different view . They point out first of all that Article 12 of Regulation No 1612/68 provides that the children of a national of a Member State who "is or has been employed" in the territory of another Member State are to enjoy certain rights with regard to education if they are residing in that territory . They also argue that the principle of equal treatment enshrined in Community law must ensure as complete an integration as possible of workers and members of their families in the host country and that therefore an interruption in a family member' s residence in that country must not prevent him from continuing his studies there .

20 The arguments put forward by the Portuguese Government and the Commission must be upheld . The equal treatment, in relation to national workers, to which workers of a Member State who are employed in another Member State are entitled as regards the benefits granted to members of their families, contributes to their integration in the society of the host country, in accordance with the aims of the freedom of movement for workers .

21 For such integration to come about, a child of a Community worker must have the possibility of going to school and pursuing further education in the host country, as is expressly provided in Article 12 of Regulation No 1612/68, in order to be able to complete that education successfully . When, after his father' s return to the Member State of origin, the child of such a worker cannot continue his studies there because there is no coordination of school diplomas and has no choice but to return to the country where he attended school in order to continue studying, he retains the right to rely on the provisions of Community law as a child "of a national of a Member State who is or has been employed in the territory of another Member State" within the meaning of Article 12, cited above .

22 With regard to the particular facts of this case, it should be added that the status of child of a Community worker to whom the provisions of Regulation No 1612/68 apply is not lost solely because the student in question initially accompanied his family when it returned to live in the Member State of origin, since his education in the host country was continuous .

23 For all those reasons, the answer to be given to the national tribunal must be that a child of a worker of a Member State who has been in employment in another Member State retains the status of member of a worker' s family within the meaning of Regulation No 1612/68 when that child' s family returns to the Member State of origin and the child remains in the host State, even after a certain period of absence, in order to continue his studies, which he could not pursue in the State of origin .

C - The right of residence of members of a worker' s family

24 The third group of questions concerns the problem whether the rights of a member of the family of a worker of a Member State employed in another Member State may be made subject to the grant of a residence permit which, in accordance with the rules of national law in force, is issued for a certain period .

25 In that regard, it should be pointed out that the right of nationals of a Member State to enter the territory of another Member State and reside there for the purpose of seeking or pursuing an occupation or rejoining their spouses or families is a right conferred directly by the Treaty or by the provisions adopted for its implementation . As proof of the right of residence, a special residence permit is to be issued in accordance with Article 4 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families ( Official Journal, English Special Edition 1968 ( II ), p . 485 ). However, the issue of such a permit does not create the rights guaranteed by Community law, and the lack of a permit cannot affect the exercise of those rights .

26 The answer to the third group of preliminary questions should therefore be that the enjoyment of the rights which a member of the family of a worker of a Member State derives from the provisions of Community law may not be made subject to the grant of a residence permit which meets certain conditions .

D - The education to which the members of a worker' s family are to have access

27 The fourth group of questions concerns the point whether Article 12 of Regulation No 1612/68 also relates to university courses in economics and advanced vocational training at a Netherlands technical college .

28 Article 12, cited above, provides that the children of a Community worker are to be admitted, under the same conditions as the nationals of the host State, to "general educational, apprenticeship and vocational training courses ".

29 Since the principle of equal treatment thus extends, for the children of Community workers, to all forms of education, whether vocational or general, there is no need to consider in the present case whether the educational courses referred to in the preliminary questions are of a vocational nature or not .

30 Consequently, the answer to be given to the national tribunal must be that Article 12 of Regulation No 1612/68 must be interpreted as meaning that it refers to any form of education, including university courses in economics and advanced vocational training at a technical college .

E - The nature of the study finance

31 By the fifth group of questions the national tribunal seeks to ascertain whether the study finance such as provided for by the Netherlands legislation, in particular the 1986 Law on Study Finance, is one of the advantages referred to in Article 12 of Regulation No 1612/68, cited above .

32 According to the information on the Netherlands legislation contained in the documents before the Court, study finance is intended to cover very different costs, including the cost of access to education, the maintenance costs of the student and of his dependents, if any, the costs of purchasing books and other educational material and the costs of health insurance, if needed .

33 Article 12 of Regulation No 1612/68, which provides that the children of Community workers are to be admitted to educational courses under the same conditions as the nationals of the host country, refers not only to the rules relating to admission itself, but also to general measures intended to facilitate educational attendance .

34 The Court has, moreover, held that a grant awarded for maintenance and training with a view to the pursuit of secondary or further education is to be regarded as a social advantage within the meaning of Article 7(2 ) of Regulation No 1612/68, to which migrant workers are entitled under the same conditions as nationals . The same principle must apply to the children of such workers when they are admitted to educational courses in the host country under Article 12 of the regulation since, if interpreted in any other way, that provision would often have no practical effect .

35 The status of child of a Community worker within the meaning of Regulation No 1612/68 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 . That requirement applies a fortiori where the persons covered by the provisions of Community law in question are students who arrived in the host country even before the age at which they had to attend school .

36 The answer to the fifth group of preliminary questions should therefore be that assistance granted to cover the costs of students' education and maintenance is to be regarded as a social advantage to which the children of Community workers are entitled under the same conditions as apply to the host country' s own nationals .

Costs

37 The costs incurred by the Government of the Kingdom of the Netherlands, the Government of the Portuguese Republic 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 proceedings pending before the national tribunal, the decision on costs is a matter for that tribunal .

On those grounds,

THE COURT ( Sixth Chamber ),

in reply to the questions submitted to it by the Commissie van Beroep Studiefinanciering, by orders of 24 December 1987, hereby rules :

( 1 ) A national of a Member State who in another Member State occupies a post governed by a special statute under international law, such as for example a post at the European Space Agency, must be regarded as a worker within the meaning of Article 48(1 ) and ( 2 ) of the Treaty and is entitled, as are the members of his family, to the rights and privileges prescribed in those provisions and in Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, and in particular Article 12 thereof .

( 2 ) A child of a worker of a Member State who has been in employment in another Member State retains the status of member of a worker' s family within the meaning of Regulation No 1612/68 when that child' s family returns to the Member State of origin and the child remains in the host State, even after a certain period of absence, in order to continue his studies, which he could not pursue in the State of origin .

( 3 ) The enjoyment of the rights which a member of the family of a worker of a Member State derives from the provisions of Community law may not be made subject to the grant of a residence permit which meets certain conditions .

( 4 ) Article 12 of Regulation No 1612/68 of the Council must be interpreted as meaning that it refers to any form of education, including university courses in economics and advanced vocational studies at a technical college .

( 5 ) Assistance granted to cover the costs of students' education and maintenance is to be regarded as a social advantage to which the children of Community workers are entitled under the same conditions as apply to the host country' s own nationals .