Tribunal de Justicia de la Unión Europea

Case C-374/03

Fecha: 02-Dic-2004

OPINION OF ADVOCATE GENERAL
GEELHOED
delivered on 2 December 2004 (1)

Case C-374/03

Gaye Gürol

Landesamt für Ausbildungsförderung Nordrhein-Westfalen

(Reference made by the Verwaltungsgericht Sigmaringen (Germany) on 31 July 2003 for a preliminary ruling in the proceedings between Gaye Gürol and Landesamt für Ausbildungsförderung Nordrhein-Westfalen)

(Interpretation of Decision No 1/80 of the EEC/Turkey Association Council – Direct effect of Article 9 – Entitlement of children of Turkish workers residing legally with their parents in a Member State to be admitted to courses of education under the same conditions as nationals of that State – Educational grant – Course of study followed in Turkey)

I– Introduction

1.In this case the Verwaltungsgericht Sigmaringen (Sigmaringen Administrative Court) has referred to the Court for a preliminary ruling four questions concerning the interpretation of Decision No 1/80 of the EEC/Turkey Association Council (2) (hereinafter ‘Decision No 1/80’). More specifically, the national court wishes to ascertain whether the daughter of a Turkish worker duly registered as belonging to the labour force of a Member State is entitled to an educational grant for a year’s study at the University of Istanbul (Turkey).

2.The importance of the case stems primarily from the context in which this question has been raised. Children of Turkish workers derive rights in the territory of the European Community from Article 9 of Decision No 1/80, a decision which implements the Association Agreement between the EEC and Turkey. (3) Those rights differ from those which children of Community workers derive from Article 39 et seq. EC and Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (4) (hereinafter ‘Regulation No 1612/68’).

II– Legal background

A– The EEC/Turkey Association Agreement

3.The aim of the Association Agreement, according to Article 2(1) thereof, is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties, including relations concerning workers, by progressively securing freedom of movement for workers (Article 12) and by abolishing restrictions on freedom of establishment (Article 13) and on freedom to provide services (Article 14), for the purpose of improving the standard of living of the Turkish people and facilitating the accession of the Republic of Turkey to the Community at a later date (fourth recital in the preamble and Article 28).

4.To that end, the Association Agreement provides for a preparatory stage to enable the Republic of Turkey to strengthen its economy with aid from the Community (Article 3), a transitional stage during which a customs union is progressively to be established and the economic policies of Turkey and the Community are to be aligned more closely (Article 4) and a final stage, which is to be based on the customs union and is to entail closer coordination of the economic policies of the Contracting Parties (Article 5).

5. Article 6 of the Association Agreement reads: ‘To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association which shall act within the powers conferred upon it by this Agreement.’ The Association Council thus has the power to take decisions to attain the objectives of the agreement in the cases provided for therein (Article 22(1) of the Association Agreement). Each of the parties is to take the measures necessary to implement the decisions taken.

6.Article 9 of the Association Agreement stipulates: ‘The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.’

7.Article 12 of the Association Agreement provides: ‘The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.’

8.Article 1 of the Additional Protocol, which was signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (5) (hereinafter ‘the Additional Protocol’), lays down the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Association Agreement. Under Article 62 thereof, the Additional Protocol is to form an integral part of that agreement.

9.That Additional Protocol includes a Title II, entitled ‘Movement of Persons and Services’, Chapter I of which deals with Workers.

10.Article 36 thereof lays down the timetable for the progressive achievement of the freedom of movement for workers between the Member States of the Community and Turkey in accordance with the principles set out in Article 12 of the Association Agreement and states that the Association Council is to adopt the rules necessary to that end.

B– Decision No 1/80

11.The Association Council adopted Decision No 1/80 on 19 September 1980. Surprisingly, this decision has never been published in the Official Journal. (6) The third recital in the preamble to Decision No 1/80 states: ‘Whereas, in the social field, and within the framework of the international commitments of each of the Parties, the above considerations make it necessary to improve the treatment accorded workers and members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Council’.

12.Of prime importance in the present case is Article 9, which reads as follows: ‘Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed in that Member State, shall be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of that Member State. They may in that Member State be eligible to benefit from the advantages provided for under the national legislation in this area.’

13.Article 10(1) of that decision provides: ‘The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.’

C– Regulation No1612/68

14.Article 12 of the regulation states:

‘The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.’

D– National legislation

15.According to the first sentence of Paragraph 5(2) of the Bundesausbildungsförderungsgesetz (Federal Law on grants for training and higher education; hereinafter ‘the BAföG’), students with a permanent residence in Germany are to be awarded an educational grant for study at an educational or training institute abroad, if:

‘1. their studies are beneficial in the light of their previous education and at least part of that education or training can be recognised as being of the requisite or normal length of the education or training;

2. in the context of international cooperation between a German and a foreign educational or training institute, mutually complementary teaching in a single course of education or training is provided alternately by the German and by the foreign institute;

3. after attending a German educational or training institute for at least one year, education or training is continued at an institute in a Member State of the European Union, and sufficient language knowledge is present.’

16.According to the fourth sentence of Paragraph 5(2) of the BAföG, the first sentence applies to the students referred to in Paragraph 8(2) of the BAföG (‘other foreigners’) only if the residence abroad is prescribed in educational or training provisions as a part of the education or training which must necessarily be carried out abroad.

17.According to Paragraph 8(1) of the BAföG, grants for education or training are to be awarded to:

‘1. Germans, within the meaning of the Basic Law;

2. Stateless foreigners within the meaning of the Law on the legal status of stateless foreigners in federal territory;

3. Foreigners who have a temporary residence in Germany and are recognised as entitled to asylum in accordance with the Law on asylum procedure;

4. Foreigners who are normally resident in Germany and are refugees under Paragraph 1 of the Law on measures for refugees accepted in the context of humanitarian aid actions;

5. Foreigners who are normally resident in Germany, are recognised as refugees and are entitled to stay in the territory of the Federal Republic of Germany on more than just a temporary basis;

6. Foreigners who are normally resident in Germany and are recognised as having protection against deportation in accordance with Paragraph 51(1) of the Law on foreigners;

7. Foreigners who have their permanent residence in the area in which the Law applies, if one of the parents is a German within the meaning of the Basic Law;

8. Students who in accordance with the Law on residence/EEC have been granted freedom of movement as children, who subsequently have a right to remain as children or who subsequently do not have the right of free movement or the right to remain only because they are 21 years of age or over and receive maintenance from their parents or a marriage partner;

9. Students having the nationality of another EC Member State or of another State party to the European Economic Area Agreement and who were employed in Germany before the beginning of the education or training; there must in principle be a connection between the activity pursued during that employment and the content of the education or training.’

18.According to Paragraph 8(2)(2) of the BAföG, other foreigners are awarded grants for education or training if, during the six years last preceding the commencement of the part of the education or training capable of subsidy, at least one parent lived and was lawfully employed in Germany for a total of three years.

III– Facts

A– Facts in the main proceedings

19.Gaye Gürol, the applicant in the main proceedings, is a Turkish national born in Germany on 28 July 1975 whose parents reside in Germany. Since the winter semester 1995/1996 she has been studying economics at the University of Tübingen, specialising in regional studies (country: Turkey). She has been awarded a State educational grant in that respect. Ms Gürol studied at the Bogazici University in Istanbul from October 1999 to September 2000. On 13 August 1999, the applicant applied to the defendant for an educational grant in respect of her visit to the Bogazici University.

20.By decision of 2 September 1999 the Landesamt für Ausbildungsförderung Nordrhein-Westfalen turned down the application. In support of its decision, the Landesamt stated that, as a student, Ms Gürol came under the category ‘other foreigners’ under German law and was entitled to a grant for a visit to an educational facility abroad only if the foreign stay was prescribed in educational and training regulations as a part of the education or training which necessarily had to be carried out abroad. However, it was not apparent from the study regulations and syllabus governing doctoral studies that one year’s study residence was prescribed by the economics faculty of the University of Tübingen.

21.The applicant lodged an administrative objection against that decision through the Turkish Labour and Social Attaché in Karlsruhe by letter of 29 September 1999. In support of her objection, the applicant argued that she had to be regarded as a German national for educational purposes and that German students received educational grants to study abroad. Furthermore, Article 10 of Decision No 1/80 contained a prohibition of discrimination as regards remuneration and other conditions of work, which also applied to social and tax advantages. The applicant’s father was entitled under this provision to benefits for his daughter, and she was also therefore also entitled, as the child of a Turkish worker, to benefits relating to vocational training. Moreover, under Article 39 EC advantages were granted which were not connected with a person’s status of worker but simply suitable for promoting integration and mobility. Finally, the economics faculty of Tübingen University prescribed a year’s study residence abroad.

22.By administrative appeal decision of 17 December 1999, the defendant dismissed the objection as unfounded. In support of its position, the Landesamt essentially reiterated and consolidated the considerations set out in its initial decision of 2 September 1999. On 2 February 2000 the applicant brought an action before the Verwaltungsgericht Sigmaringen, which, while considering the action, raised four questions submitted for a preliminary ruling by order of 31 July 2003.

B– The views of the national court

23.In the explanation to the questions referred for a preliminary ruling the national court points out that the wording of the relevant national provisions of the BAföG does not grant the applicant any entitlement to a grant for study abroad. In addition, the applicant cannot invoke the general principle of equality laid down in Article 3 of the Basic Law. Furthermore, the national court considers that no entitlement to a grant for a semester’s study in Turkey exists by virtue of Article 2 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms, in conjunction with Article 14 thereof. In addition, there can be no entitlement under Article 3(1) of Decision No 3/80 because the award of a grant for study abroad does not come within the substantive scope of Decision No 3/80 as one of the kinds of social security benefit listed in Article 4(1)(a) to (h) thereof.

24.For the resolution of the dispute it is therefore important to know whether the applicant can derive a right to a grant for study abroad from Article 9 of Decision No 1/80.

C– The questions referred for a preliminary ruling

25.On 31 July 2003 the national court stayed proceedings and referred the following four questions for a preliminary ruling:

‘1.: Does the first sentence of Article 9 of Decision No 1/80 of the EEC/Turkey Association Council have direct effect in the domestic legal systems of Member States of the European Community, so that Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed in that Member State, and who have the same qualifications as the children of nationals of that Member State, are entitled to equal access to general education, apprenticeship and vocational training?

2.: If Question 1 is answered in the affirmative:

Do Turkish children still qualify as “residing legally with their parents” if they establish and maintain their own principal residence at the place of their university education and are registered with only a subsidiary residence at their parents’ address?

3.: If Question 2 is answered in the affirmative:

Does the first sentence of Article 9 of Decision No 1/80 of the EEC/Turkey Association Council confer on the beneficiaries of that provision entitlement not only to equal access to educational facilities but also to equal access to State benefits granted by the Member State with the aim of facilitating participation in education or training, or is the first sentence of Article 9, in conjunction with the second sentence of Article 9, of Decision No 1/80 of the EEC/Turkey Association Council to be interpreted as reserving to Member States the possibility of making the grant of social benefits in the area of education to those persons covered by the first sentence subject to other conditions or of limiting those benefits?

4.: If Questions 2 and 3 are answered in the affirmative:

Does that also apply to a university education in the Turkish homeland for the beneficiaries?’

D– Proceedings before the Court

26.In this case written observations have been lodged by the defendant in the main proceedings (through the Bezirksregierung Köln), the German Government, the Austrian Government and the Commission. The applicant set out her views orally at the hearing on 21 October 2004, as did the defendant, the German Government and the Commission. The defendant, the Austrian Government and the German Government argue that the applicant can derive no entitlement to a grant for study abroad from Article 9 of Decision No 1/80. The Commission and the applicant, on the other hand, take the view that a child of a Turkish worker is entitled to a grant to study abroad by virtue of Article 9 of Decision No 1/80.

1. First question

27.By its first question the Verwaltungsgericht asks whether the first sentence of Article 9 of Decision No 1/80 has direct effect in the territory of the Member States.

28.In Demirel (7) the Court held that a provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. The same criteria apply in determining whether the provisions of a decision of the Association Council can have direct effect. (8)

29.The first sentence of Article 9 of Decision No 1/80 reads as follows: ‘Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed in that Member State, shall be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of that Member State.’ In precise and unconditional terms Turkish children are granted the right to be admitted to courses of education on the basis of the same educational qualifications as nationals of the host Member State. The provision contains a clear and unconditional obligation to afford equal treatment to resident German and Turkish students. The category of persons protected by Article 9 of Decision No 1/80 must be admitted to educational facilities under the same conditions, that is to say without discrimination on grounds of nationality. As the national court has already noted in the case documents, the first sentence of Article 9 contains the requisite degree of precision and unconditionality to be directly applicable. The conditions under which the entitlement is granted are also laid down clearly and do not require clarification by the national legislature. Therefore, the implementation and effectiveness of the first sentence of Article 9 is not conditional on the adoption of a detailed national measure and is consequently directly applicable.

30.The answer to the first question referred by the Verwaltungsgericht must be that the first sentence of Article 9 of Decision No 1/80 has direct effect in the Member States of the European Community.

2. Second question

31.By its second question the national court asks whether Turkish children qualify as ‘residing legally with their parents’ if they establish and maintain their own principal residence at the place of their university education and are registered with only a subsidiary residence at their parents’ address.

32.The Commission points out that Article 9 of Decision No 1/80 merely requires that children reside with their parents. No other conditions, such as the existence of family life or a permanent residence, are laid down. The abovementioned article also draws no distinction between the various kinds of residence, for example in the form of principal residence or subsidiary residence. Therefore, the Commission takes the view that the applicant qualifies as residing with her parents if she is registered at her parents’ home in Philippsburg as a subsidiary residence. The Commission considers that this interpretation is consistent with the spirit and purpose of Article 9 of Decision No 1/80. Furthermore, the provision does not impose on Turkish children any restriction on the choice of a particular type of education, other than that the relevant educational entry qualifications be met. For these reasons the children of Turkish workers are entitled to choose a course of study, and thus a place of study, independently of their parents’ place of residence. Any other interpretation of the residence requirement would improperly restrict the entitlement granted by Article 9 of Decision No 1/80.

33.In the view of the German Government, Article 9 of Decision No 1/80 requires that the children and parents live together under the same roof. This condition is also satisfied where during his or her course of study a child takes a room or flat at a different location but lived previously under the same roof as his or her family, that is to say before commencing his or her studies. Otherwise the entitlement to access to education would be seriously limited, at least in geographical terms. Neither the meaning nor the purpose or wording of the condition relating to residence with parents precludes a child leaving his or parents’ residence to study. Therefore, the national court must examine whether the applicant lived under the same roof as her family before commencing her studies.

34.The wording of Article 9(1) of Decision No 1/80 requires that Turkish children must reside with their parents in order to be entitled to access to education. I share the German Government’s view that this provision means that the children of Turkish workers must have been resident in the parental home before commencing their studies. However, it may be necessary for the child to establish a residence in another town if the parents’ residence is too far from the institute at which the child of a Turkish worker intends to follow his or her studies. Certainly in a large country such as Germany children pursuing studies do not always have the possibility of doing so from the parental home. For that reason, the entitlement granted by Article 9 of Decision No 1/80 could not be fully exercised if the choice of education were limited to that provided at the parents’ place of residence. A more restrictive interpretation of this residence requirement would place an impermissible restriction on the entitlement of the children of Turkish workers to access to education.

35.Such an interpretation of Article 9 of Decision No 1/80 is consistent with the aim of granting the family members of Turkish workers certain advantages to facilitate and accelerate their integration into the social life of the host country. This is also stated specifically in the third recital in the preamble to Decision No 1/80: ‘Whereas, in the social field, and within the framework of the international commitments of each of the Parties, the above considerations make it necessary to improve the treatment accorded workers and members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Council’.

36.Therefore, the answer to the second question referred by the Verwaltungsgericht must be that Turkish children still qualify as ‘residing legally with their parents’ if they leave the parental home upon commencing their chosen studies in order to establish residence at their place of study.

3. Third and fourth questions

37.The applicant in the main proceedings and the Commission, on the one hand, and the defendant in the main proceedings and the German and Austrian Governments, on the other, take diametrically opposed views on the answer to the third and fourth questions.

38.The Commission, which was supported at the hearing by the applicant in the main proceedings, submits in the first place that the second sentence of Article 9 of Decision No 1/80 has direct effect and, consequently, contains a prohibition of discrimination.

39.In support of its view that this provision has direct effect, the Commission relies on the wording thereof and on the purpose of Decision No 1/80, as can be inferred from Article 12 of the Association Agreement and Article 36 of the 1972 Additional Protocol which provide for the progressive achievement of the freedom of movement for workers. Furthermore, the entitlement to access to education guaranteed by the first sentence of Article 9 of Decision No 1/80 would be undermined if Turkish children had no permanent entitlement to the benefits referred to in the second sentence thereof.

40.The entitlement to access to education might also be undermined if the entitlement to be derived from the direct effect of the second sentence of Article 9 did not include a similar entitlement for German nationals.

41.In the event that the Court does not share its view regarding the direct effect of the second sentence of Article 9, the Commission submits, in the alternative, that the first sentence of Article 9, which in any event has direct effect, should be interpreted as granting entitlements to the same benefits as those available to German students.

42.In its view, such an interpretation finds support in the similar provision contained in Article 12 of Regulation No 1612/68 which, although framed in broader terms, has the same intended purpose as the first sentence of Article 9 of Decision No 1/80, namely to promote the social integration of children of migrant EC workers, in this case Turkish workers, by ensuring that they are able to pursue studies on the same footing as children having the nationality of the host Member State.

43.The defendant in the main proceedings, and also the German and Austrian Governments, take the view that the wording of the second sentence of Article 9 of Decision No 1/80 precisely imposes no obligation on the Member States to make public funds available to facilitate the participation of Turkish children in education under the same conditions as those which apply to nationals of the host Member State. As is apparent from its wording, this provision gives Member States the possibility of granting the same benefits. The implementation thereof is left to the discretion of the national legislature.

44.In order to answer the question of interpretation raised in this case, reference must be made not only to the wording of Article 9 of Decision No 1/80 but also the scheme and purpose thereof as established by the progressive implementation of the Association Agreement between the Community and Turkey.

45.Initially the Association Council made little progress on implementation of the provision contained in Article 12 of the Association Agreement relating to ‘progressively securing freedom of movement for workers’. Progress was accelerated somewhat after the 1970 Additional Protocol had been approved by Regulation No 2760/72 (see paragraphs 8 to 10 above). This acceleration resulted first in Decision No 2/76 of the Association Council and then Decision No 1/80 in question.

46.Chapter II of Decision No 1/80 contains the social provisions. The first section of this chapter deals in particular with questions relating to employment and the free movement of workers. Even though the purpose of this section is, according to the third recital in the preamble, to improve, in the social field, the treatment accorded workers and members of their families in relation to the arrangements introduced by Decision No 2/76 of the Association Council, the content and wording thereof reveal a large degree of caution on the part of the Association Council as the competent legislative body.

47.This is also evident from a number of provisions of this section of the decision which laid down rules which are more restrictive in almost every respect than those laid down in Articles 39 EC to 42 EC and the secondary Community legislation based thereon.

48.For example, in Article 6 of the Decision Turkish workers are granted an entitlement to access to the employment market of the country in which they reside which is subject to strict conditions. Moreover, in exercising that right they are placed at a disadvantage by comparison with nationals of the Member States. The rules laid down in Article 7 of Decision No 1/80 concerning the access of the members of Turkish workers’ families to the employment market in the country in which they reside are considerably more restrictive than those which apply to nationals of the Member States. The same is true of the very restrictive rules imposing strict conditions which Article 8 of Decision No 1/80 contains in relation to the intra-Community movement of Turkish workers.

49.When an overall comparison is made of the body of rules which apply to Turkish workers within the European Communities under Decision No 1/80 and those which apply to nationals of the Member States, it is striking that the former body of rules is not based on the principle of equality and non-discrimination. The individual rights and entitlements are set out exhaustively in the relevant provision. Where the decision refers to equal treatment of Turkish workers and those of the host State, the scope thereof is defined precisely. For example, Article 10(1) of the decision prohibits discrimination against Turkish workers on the basis of their nationality as regards remuneration and other conditions of work. However, the equal treatment which Article 10(2) of the decision affords to them as regards assistance from the employment services is again subject to strict conditions.

50.Incidentally, I should point out that as regards the free movement of persons within the European Community the legal position of Community nationals who maintain their residence within the Community in a country other than their country of origin is still not identical, in terms of entitlements to State benefits, to that of nationals of the country to which they have moved. Furthermore, primary and secondary Community law provide for broader treatment as nationals of a Member State for persons who are to be regarded as economic migrants than for those who fall within the scope of Directive 90/364/EEC (9) or for students who fall within the scope of Directive 93/96/EEC. (10) The tension between the principle of equality and the distinctions made in that regard by primary and secondary Community law is characterised by the free movement of persons within the Community. It has given rise to case-law in which the bounds between the operation of the principle of equality and the distinction intended by the Community legislator are somewhat redefined but nevertheless observed per se. (11) This tension between the principle of equality and the distinction expressly intended by the competent legislative body also arises in this case.

51.In the light of the foregoing the legal position of Turkish workers under Decision No 1/80 can be described as privileged in comparison with that of other workers from non-member countries. Although Article 12 of the Association Agreement expressly provides for a gradual development of this position towards that of Community nationals, the Association Council, as the competent legislative body in this case, has thus far failed to take more far-reaching steps. In my view, it therefore follows that the answer to the questions referred must be found primarily on the basis of the wording, scheme and context of Decision No 1/80 itself and that great care is called for in interpreting this wording by analogy with primary and secondary Community law governing the free movement of workers who are Community nationals. If the Association Council had intended to bring about greater congruity between the legal position of Turkish workers and that of workers from the Member States, it would have itself, as the competent legislative body, ensured that there was greater uniformity in terms of content between Decision No1/80 and the primary and secondary Community law relating to the free movement of workers.

52.Therefore, it would not be right to interpret Article 9 of Decision No 1/80 by analogy with Article 12 of Regulation No 1612/68, as the Commission proposes. It is clear from the differences in the wording of the two provisions that the competent legislative body in this case precisely intended rules which were not identical. It seems to me that the Court must respect the obvious intention of the legislative body, or at least take account thereof.

53.The wording of Article 9(1) of Decision No 1/80 entitles Turkish children residing legally in a Member State to be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of that Member State. I share the Commission’s view, which is not explicitly disputed by the Austrian and German Governments, that the requirement relating to equal treatment contained in this provision, which strictly speaking relates only to access to general education, can have substantive meaning in respect of certain – expensive – forms of education only if Turkish children are in fact enabled to take part in such education. It is that to which the second sentence of Article 9 refers: ‘They may in that Member State be eligible to benefit from the advantages provided for under the national legislation in this area.’

54.A literal and systematic interpretation of this provision, which complements the first sentence of Article 9, does not provide grounds for conferring direct effect thereon or for regarding it as establishing implicit equal treatment. If the competent legislative body had intended to lay down an equal treatment requirement having direct effect it could have simply worded the provision differently: ‘they shall, on the same footing as children of nationals of that Member State, be eligible to benefit from the advantages provided for under the national legislation in this area’. In this connection it is significant that explicit and imperative terms were chosen in the following Article 10(2) of the decision.

55.I do not consider that the somewhat acrobatic-looking interpretation method employed by the Commission is worthy of application. It relies on an analogy with Article 12 of Regulation No 1612/68 which that legislative body could have easily adopted but evidently chose not to.

56.Consequently, it is all the more clear that the two sentences of Article 9 should be interpreted together. As pointed out at paragraph 54 above, the second sentence is an ‘enabling clause’ complementing the first sentence which imposes on the Member States an obligation also to secure Turkish children’s entitlement to access to education in fact. Although such a substantive obligation still leaves the Member States a certain margin of discretion – which, as is evident from the second sentence of Article 9, is also intended –, this margin is restricted when viewed in conjunction with the first sentence: Turkish children must also actually be able to follow the courses of education and training to which they are entitled to be admitted. That is to say, they must be eligible for the actual facilities required to do so.

57.In so far as public benefits and facilities made available to apprentices and students in the form of grants, allowances, advances and loans in order to enable them to follow courses of study are intended to make it possible actually to follow the relevant courses of study, it follows from this interpretation of Article 9 that they must also accrue to Turkish students.

58.Conversely, where the benefits granted to Turkish students for the purpose of following a course of study or training are more limited than or different from those for children of its own nationals, a Member State must demonstrate that this difference does not adversely affect its obligation under Article 9 of Decision No 1/80 to ensure that the result sought by this article is attained, namely that Turkish children are not only admitted to courses of general education, apprenticeship and vocational training on the same footing but are also actually enabled to follow such courses.

59.This also applies to public benefits and facilities made available to apprentices and students for the purpose of following courses of study abroad. Children of Turkish workers must be enabled properly to follow and complete their chosen course of study and where study abroad forms an integral part thereof, this too has effects on the entitlements of the children of Turkish workers. In such a case too the Member State must enable Turkish children actually to exercise the entitlement granted to them.

60.It is for the national court to consider whether this obligation has been fulfilled on the basis of the facts.

IV– Conclusion

61.In view of the foregoing I propose that the Court should answer the questions referred by the Verwaltungsgericht Sigmaringen as follows:

62.‘Article 9 of Decision No 1/80 of the EEC/Turkey Association Council of 19 September 1980 must be interpreted as meaning that:

–: the first sentence of that provision has direct effect in the Member States;

–: children of Turkish workers still qualify as “residing legally with their parents” if they leave the parental home upon commencing their chosen studies in order to establish residence at their place of study;

–: it is for the national court to determine whether national law applied to Turkish nationals such as the applicant in the main proceedings in fact enables them to exercise their entitlement to be admitted to courses of general education, apprenticeship and vocational training.’

1 –: Original language: Dutch.

2 –: Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council created under the Agreement establishing an Association between the European Economic Community and Turkey.

3 –: Agreement establishing an Association between the European Economic Community and Turkey, which was signed in Ankara on 12 September 1963 by the Republic of Turkey on the one hand and the Member States of the EEC and the Community on the other hand and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (JournalOfficiel 1964 217, p. 3685; the Agreement is published at OJ 1977 L 361, p. 29).

4 –: OJ, English Special Edition 1968 (II), p. 475.

5 –: Council Regulation (EEC) concluding the additional protocol and the financial protocol signed on 23 November 1970 and annexed to the Agreement establishing an Association between the European Economic Community and Turkey and relating to the measures to be taken for their implementation (JournalOfficiel 1972 L 293, p. 1; the Additional Protocol is published at OJ 1977 L 361, p. 60).

6 –: The Court has not seen this deficiency in the adoption of the decision as a reason to question its substantive legal force.

7 –: Case 12/86 Demirel [1987] ECR 3719, paragraph14.

8 –: Case C‑192/89 Sevince [1990] ECR I‑3461, paragraph15.

9 –: Council Directive of 28 June 1990 on the right of residence (OJ 1990 L180, p.26).

10 –: Council Directive of 29 October 1993 on the right of residence for students (OJ 1993 L317, p.59).

11 –: See my Opinion in Case C-209/03 Bidar [2004] ECR I-0000, and also the judgment in Case C‑184/99 Grzelczyk [2001] ECRI‑6193.