Opinion of the Advocate General — ECLI:EU:C:2001:385
Date: 2001-07-05
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary 61. In light of the foregoing I would summarise the state of EC law in its main outlines as set out below. 62. Freedom of movement for workers is in principle applicable only during the period in which the worker is engaged in active employment. The social advantages accruing to family members on the basis 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 particularly, Article 10 of the Regulation confers a social advantage - in the form of a right to remain - in favour of children who live in a family relationship with the worker. Article 12 gives children the right to continue their studies even after their parents' employment relationship comes to an end. Moreover, Article 12 does not require the (continued) existence of a family relationship. In Echternach and Moritz (41) the Court applied a wide interpretation to that right in favour of children by permitting them to return to the host country after a temporary 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. 63. The Court has not hitherto ruled on the possible direct effect of Article 18 EC, notwithstanding a number of submissions on that point, notably in Opinions of Advocates General. In my view, it is, however, clear that Article 18 EC has definite legal consequences, whose extent and scope are as yet unclear. 64. The prohibition on discrimination is an important means of attaining freedom of movement for workers but is not so far-reaching that members of the families of persons from another Member State must be granted the same right to remain as the family members of a national of the host country itself. Finally, the right to respect for family life under the ECHR forms part of Community law at issue in the present case. However, that is not so far-reaching that a Member State must authorise family reunion in its own territory. VIII - Appraisal Introduction 65. Written observations were lodged with the Court on behalf of the appellants in the main proceedings before the referring tribunal (R and Baumbast, hereinafter the appellants), the Commission and the United Kingdom and German Governments. At the hearing on 6 March 2001 the appellants, the Commission and the United Kingdom and German Governments 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, the state of EC law, as described in Part VII. 66. In replying to the questions I will make a division between the first two questions which relate to Regulation No 1612/68 and the third question which concerns the interpretation of Article 18(1) EC. In the reply to the first two questions the overdue review of Community legislation is of considerable significance. The rules relating to freedom of movement for workers - see also point 34 above - have not kept pace with social changes. In my view the Court is therefore compelled, in interpreting the specific legislation in this area, in particular Articles 10, 11 and 12 of Regulation No 1612/68, to take into consideration not only the wording of the provisions themselves but also the changed circumstances. The first two questions The observations 67. In the R case the appellants submit that the children entered the United Kingdom as members of a migrant worker's family and that they retain a right of installation under Article 10(1) of Regulation No 1612768. The fact that their parents have in the meantime divorced is of no significance. 68. In the Baumbast case the appellants concede that Mr Baumbast can no longer claim protection as a worker in the United Kingdom, inasmuch as he is no longer seeking work there. None the less he remains a worker within the meaning of Article 39 EC since he is employed by a German undertaking established in the European Union which sends him on contracts outside the European Union, whilst at the same time he maintains his family in the host country where he previously worked and where he is still ordinarily resident. Whenever this worker makes his regular journey to the place in which he and his family are ordinarily resident, he is exercising the rights conferred on him by the EC Treaty. The appellants conclude therefrom that the Baumbast children also retain the right to install themselves under Article 10(1) of Regulation No 1612/68. 69. The appellants go on to observe that Article 12 of Regulation No 1612/68 is linked to Article 10. Article 12 relates solely to children who had the right under Article 10 to install themselves. The appellants 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 father is no longer employed in the United Kingdom. However, in Echternach and Moritz, (42) that fact was held to be irrelevant to the continued existence of children's rights under Article 12. The appellants further observe that in both cases the children could not move to the countries of which they are nationals. They have no family member there and also do not speak French (the R children) or German (the Baumbast children). A move would jeopardize continuity of their education. 70. The appellants infer a right to remain in favour of the mother in both cases from the following considerations. Article 12 of Regulation No 1612/68 requires the Member States to secure admission to educational courses under the same conditions as nationals and to encourage all efforts to enable such children to attend such courses under the best possible conditions. For young children of a split family who are residing in the care and control of their mother, the only feasible condition for attendance at school is to enjoy continued residence with their mother. 71. The appellants go on to point out that the Baumbast and R children are materially disadvantaged by comparison with children of a marriage between a British citizen and a foreign woman. The mother of those children would receive indefinite leave after 12 months, irrespective of the fate of the family links thereafter. This is a benefit of advantage to the worker who knows that his family life will not be adversely affected by immigration considerations in the event of divorce. 72. The adjudicator in the Baumbast case recognised the absurdity of granting children residence rights and then depriving them of any possibility of effectively exercising them by refusing residence to their mother. Community law is to be interpreted broadly particularly where the enjoyment of fundamental rights, such as the right to family life is concerned. Refusal of a right of residence to the mother is, according to the appellants, a disproportionate interference in family life and conflicts with the ECHR. 73. As I stated at points 34 and 66 of my Opinion the appellants state that Community law must be interpreted in the light of social changes and legal developments occurring since the adoption of Regulation No 1612/68. 74. More generally, the appellants dwell on the continued right to remain in favour of persons who had the right under Article 10 to install themselves in a host country. Article 10 of Regulation No 1612/68 deals with dependants having the right to install themselves with the worker. Installation is to be regarded as a once-for-all action rather than as a continuous action. Accordingly they do not need to be permanently installed with the worker. Nor do they after 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 of circumstances Community law acknowledges a right to remain in favour of the surviving spouse (see Article 3(2) of Regulation No 1251/70 and the judgment in Christini (44)). 75. In summary the appellants submit as follows: where family members have installed themselves with a worker in a host State and have resided there lawfully for a number of years, changes in circumstances do not deprive the family members of a right of continuing residence if there are sufficient and effective links between the family members and the exercise of Treaty rights by the worker. 76. The Commission observes that the right under Article 10 of Regulation No 1612/68 is a derived right dependent on the migrant worker. Article 12 - concerning the pursuit of studies - is not a self-standing right of residence but is merely intended to ensure that the worker's children have access to education under the same conditions as children who are nationals of the host country. 77. A distinction must be drawn, according to the Commission, between the case where one of the parents continues to be a worker in the host country (R) and the case where the parent is no longer a worker (Baumbast). In the former case the children retain their right of residence on the basis of their relationship with the worker. That conclusion 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 relationship with the worker, is not fulfilled. The more difficult question is whether Article 12 of Regulation 1612/68 can confer a right of residence. In Echternach and Moritz (46) the Court interpreted Article 12 broadly. The protection of the children under Article 12 is not dependent on the continued existence of the parent's status of migrant worker. According to the Commission, the effect of the judgment in Echternach and Moritz is that a child of a former worker may remain in the host Member State in order to be able to enjoy the rights conferred on it by Article 12. The Baumbast case is comparable to the situation which was before the Court in Echternach and Moritz. There is therefore no reason to exclude the Baumbast children from the rights upheld in that judgment. The Commission also points to the principle of equal treatment under which workers and members of their families must be integrated as fully as possible in the host Member State. 78. The Commission deals only briefly with the question of the mother's right of residence in both cases. Mrs R is no longer a member of the family of a migrant worker and cannot assert a right of residence 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 children's right of residence. 79. The United Kingdom Government states that, although Mr Baumbast is no longer himself a worker within the meaning of Regulation No 1612/68, his children continue to enjoy the right to undertake educational courses in the United Kingdom under Article 12 of that regulation. In the case of R the children retain their rights under Article 12 on the ground that their father continues to be a migrant worker in the United Kingdom. The matters mentioned in part (b) of Question 1 are not relevant to the reply to be given. 80. The United Kingdom Government goes on to state that the Member States' obligation under Article 12 of Regulation No 1612/68 to encourage all efforts to enable such children to attend these courses under the best possible conditions does not entail an obligation on the host country also to admit the primary carer. It supports that submission on the following grounds: - The wording best possible conditions refers not to the domestic conditions of the child but to educational and training facilities. - Under United Kingdom domestic law UK national children do not have the right to require the State to admit non-national parents or carers. To admit primary carers of children from another Member State would not be to place such children on an equal footing but would be to place them in a more beneficial position than British children. - To answer Question 2 in the affirmative would lead to the absurd result that persons such as Mr Baumbast would gain a derivative right to reside from what was in itself a derivative right which his children derived from him. 81. In the German Government's view the children of a migrant worker retain their rights under Article 12 of Regulation No 1612/68 after their parents leave the host Member State subject to the condition that their education cannot be continued in the State of origin. A reply to part (b) of Question 1 is not necessary because the other criteria mentioned therein are not determining factors for the national authorities. In the German Government's view the mother has no right to reside for Article 12 of Regulation No 1612/68 deals solely with the admission of the children of migrant workers. Assessment 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 that question is straightforward. Those children have a right to remain under Article 10 of Regulation No 1612/68. That right continues to subsist even after the divorce of their parents as long as the father continues to have the status of worker within the meaning of Article 39 EC. In Diatta (47) it was held not to be necessary for the children to be living under the same roof as their father. 84. In the case of the Baumbast children I come to the same conclusion. Their right to remain also remains intact. However, their right is founded not on Article 10 but on Article 12. My reasoning in that connection is as follows. Under Article 10 the children had the right to install themselves in the United Kingdom on the basis of the status of worker of their father, Mr Baumbast. His status as a worker within the meaning of Article 39 EC no longer subsists. However, Article 12 of Regulation No 1612/68 provides that the children of a person who has been employed - as a migrant worker within the meaning of Article 39 EC - are to be admitted to educational courses if they are residing in the territory of the Member State concerned (in this case the United Kingdom). Echternach and Moritz establishes that children whose worker/parent has left the country have the right to continue in the host country studies already commenced there. As the Court further held in that judgment, in such cases children retain the status of member of a worker's family within the meaning of Regulation No 1612/68 and thus their right to remain. 85. In my view that reasoning applies equally to the R children in the hypothetical event that their father should no longer continue to be a worker within the meaning of Article 39 EC in the United Kingdom. For the R children's right to remain can also be founded on Article 12 of Regulation No 1612/68. For the purposes of Article 12 their situation is entirely identical to that of the Baumbast children. 86. The second question submitted by the referring tribunal is in brief whether a right to remain continues to subsist in favour of the mothers. They can no longer rely directly on Article 10 of Regulation No 1612/68 but would have to derive that right from their children's right to remain. This question is considerably more difficult to answer, which is borne out by the fact that the observations submitted to the Court reveal very divergent views. 87. In replying to this question it is not enough for me merely to analyse the wording of the regulation, as interpreted in the Court's case-law. As I already stated at point 34 above, the Community legislature has failed to have regard to cases where the family or working situation changes after entry into the host country, as in the case of the R and Baumbast families. Only the case of the worker's death is provided for in Regulation No 1251/70. On this point European legislation on freedom of movement for workers no longer meets the needs of the time. In other words the legislation is in need of overhaul. 88. For those reasons Community law needs to be interpreted in such a way as to take account of changes in social conditions. In that way the lacunae which have appeared in Community legislation as a result of a failure to overhaul it can be prevented from resulting in undesired legal consequences. 89. A determinant factor in my view is that Article 12 of Regulation No 1612/68, as interpreted by the Court, unconditionally recognises the right for children to continue their education in the host Member State. From that recognition of the rights of the children I infer an albeit limited right to reside in favour of the mother(s). I am persuaded of that by two arguments which are closely interconnected. 90. First, the interpretation of Regulation No 1612/68 must do justice to the central objective of the regulation which I may summarise as being to facilitate the attainment of the objectives of Article 39 EC. 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 freedom of movement for workers it is therefore important that education be guaranteed as far as possible by Community law. 91. Secondly, the children's right to remain under Article 12 of Regulation No 1612/68 would be rendered nugatory if the parent 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 of Regulation No 1612/68. The right of children to be able to continue their studies in the host Member State must also be capable of actually being exercised, in which connection the second paragraph of Article 12 encourages all efforts made to enable such children to attend those courses under the best possible conditions. 92. In that connection I would also draw attention to the prohibition of discrimination 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. (50) 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 in conjunction, that the parent carer's right to remain can be justified by the children's right to equal treatment. 93. Finally, recognition of a right to remain in favour of the parent carer is also of importance in connection with the ECHR and, in particular, Article 8 thereof which guarantees the right to respect for family life. (51) In that regard I would point to the view expressed by the appellants that refusal to grant leave to remain to a mother of small children constitutes a disproportionate interference with family life and is thus incompatible with the ECHR. I am of the view that the Court does not need to express a view on whether refusal to grant leave to remain to the parent carer might constitute a disproportionate interference; I merely find that a decision to grant such leave does justice to Article 8 of the ECHR. 94. Those considerations lead me to conclude in favour of a right to remain for the parent carer which is derived from the right of children to continue their education in the host country. I am thereby giving further effect to the extensive interpretation applied by the Court in Echternach and Moritz to Article 12 of Regulation No 1612/68. In that connection it is established that the Court considers the right of children to continue their education to be an important means of advancing freedom of movement for workers. That right in favour of children must be capable of being fully utilised. Such an important means cannot be rendered nugatory (under certain circumstances) by a lacuna in the Community legislation. Yet since the right to remain in favour of the parent carer is derivative in nature, that means that a Member State may under its domestic law apply a temporal limitation on that right, for example until the education is completed or until the period of care of the children has come to an end. 95. I conclude that since EC law - on the furtherance of freedom of movement for workers - confers certain rights and privileges on the members of families of migrant workers, in this case the children of workers, the right in question must be interpreted in such a way to enable it actually to be exercised. That means that the parent carer must be able to remain if that is necessary for the exercise by the children of their rights. Third Question The observations 96. In the appellants' view Article 18 EC has direct effect. In that connection they refer to the Court's case-law and to academic writings. The fact that the right to remain applies subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect does not deprive it of direct effect. The other provisions of the Treaty would merely define the content of the right. Nor does the fact that the right to remain is further to be read in the context of the measures adopted to facilitate the exercise of that right deprive it of direct effect. Article 18 EC is no less unconditional and unambiguous than Article 39 EC. Article 18 EC does not create an independent right which renders Article 39 EC and legislation adopted under it obsolete but is an addition to other provisions of the Treaty, such as those governing freedom of movement for workers. 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 worker outside the European Union. This Article 18 EC right of residence serves to bridge the gap during the period while he is physically absent from the United Kingdom, that is to say the period between his departure - as a worker within the meaning of Article 39 EC - and his permanent return to the United Kingdom. In that connection the appellants also point out that the difficulties faced by Mr Baumbast's family would not have arisen if the case had involved the members of the family of a British national. The refusal of residence rights to the spouse of Mr Baumbast constitutes discrimination contrary to Article 12 EC in connection with the right of residence in favour of Mr Baumbast which is based on Article 18 EC. 98. The Commission underlines the fundamental importance of Article 18 EC. However, the right to move and reside is not an absolute right but is subject to existing legal instruments. The right to remain is always linked either to an economic activity or to sufficient resources. The Commission concludes that Article 18 EC does not give Mr Baumbast a right to remain. In that connection it cites, inter alia, the judgment in Wijsenbeek. (52) 99. The United Kingdom Government points to the conditions laid down in Article 18(1) EC. That indicates that Article 18 EC does not create a universal and absolute right to free movement and residence going beyond the rights already conferred under the EC Treaty and secondary legislation. That does not mean that Article 18 EC is devoid of legal effect. It elevates the rights previously granted by secondary legislation to the status of rights granted by the EC Treaty and provides the Council with competence to adopt new measures to facilitate the exercise of rights of free movement. (53) 100. In the United Kingdom Government's view, Article 18 EC does not have direct effect because it is not unconditional in nature. The German Government is also of the view that a right of residence cannot be directly derived from Article 18 EC. Assessment 101. The third question submitted by the referring tribunal primarily concerns the direct effect of Article 18 EC. At point 49 et seq. hereof I cited the Opinions of Advocate General La Pergola in Martínez Sala and of Advocate General Cosmas in the Wijsenbeek case; both expressed themselves in favour of direct effect. Advocate General La Pergola states that the right to move and to reside is inextricably linked with citizenship. The limitations mentioned in Article 18(1) EC concern in his view the actual exercise of the right and not the existence of the right itself. Advocate General Cosmas infers direct effect from, inter alia, the literal formulation of Article 18(1) EC. He goes on to state that exercise of that right may be made subject to restrictions and conditions so long as they are justified and do not impinge on the very essence of the right. 102. Hitherto the Court has not been required to rule on the issue of direct effect in this connection. It is apparent from the judgment in Kaba (54) that the Court takes the view that, by reference to the second part of Article 18(1) EC, that article does not in any event create an unconditional right to move and reside in favour of citizens of the European Union. I deduce from that judgment that, even if Article 18 EC has direct effect, the right to move and to reside under Article 18(1) EC is in any event not unlimited. 103. The central question as to the legal nature of Article 18(1) EC may in my view be formulated in these terms: does a citizen have a right under Article 18(1) EC to move and reside anywhere in the European Union or must Article 18(1) EC be characterised as a legal principle which requires to be given actual effect elsewhere in Community law? In view of the wording of Article 18(1) EC this question can be answered only in one way. This provision creates for citizens of the European Union a right to move and to reside. In my view the clear and unconditional wording of the first part of Article 18(1) EC cannot be interpreted in any other way. The activities to which that provision refers, namely to move and to reside, do not require further particularisation. Thus, in my view, Article 18(1) EC has direct effect. That was also the reasoning of Advocate General Cosmas. 104. The scheme of the EC Treaty and the legislation adopted under it provide a second argument in favour of direct effect. Community legislation on freedom of movement for persons is addressed to two 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 (Article 39 EC et seq.), freedom of establishment (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 persons, such as, for example, students or pensioners. Their rights are based on secondary Community law, namely Directive 90/364 and Directives 90/365 and 93/96, which are related to the former. Thus, for both categories particular sets of rules, which are not directly interconnected, have come into being. 105. Article 18 EC adds to these two sets of rules a general right of residence in favour of citizens of the European Union. 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 favour of economically non-active persons stems directly from the Treaty and is no longer fully subject to the assessment of those entrusted with the enactment of secondary legislation. 106. There is a third argument, of a teleological nature, in favour of direct effect. If the right to move and reside were wholly dependent on specific privileges established by or pursuant to the EC Treaty, that right would risk losing significance or, in other words, its efficacy. A provision couched in general terms, such as Article 18(1) EC, which does not distinguish between the various (sub)categories of addressees, fulfils a necessary function in securing the objective pursued by the framers of the Treaty, namely freedom of movement for all citizens. 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 Community law, such as for example Article 39 EC, therefore determine as a matter of principle the scope of the right laid down in Article 18 EC. 108. I therefore share the view of the matter formed by the Court in Kaba (cited in footnote 29) that the rights laid down in Article 18(1) EC are not unlimited. Precisely if, as I advocate, those provisions are recognised as having direct effect, the conditions and limitations to which exercise of the right to move and reside is subject are closely connected to them. For the conditions and limitations serve to protect obvious public concerns such as public order and security, public health and the financial interests of the Member States. 109. In light of the foregoing I conclude that Article 18(1) EC has substantive significance in two respects. In those two respects Article 18 EC has additional value alongside the other Community legislation on freedom of movement for persons. 110. First, the unconditional nature of the first part of Article 18(1) EC entails that the right of residence must be a recognisable 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 not be arbitrary and may not deprive the right of residence of its substantive content. In that connection I refer to the requirements laid down by Advocate General Cosmas which are to be met by any conditions and limitations on the right of residence. I also find support for my view in the Charter of Fundamental Rights of the European Union. Article 45 of that charter which, as I have said, is non-binding recognises a right of residence in favour of citizens of the Union, (56) whereas 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 proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union .... 111. Secondly, Article 18(1) EC imposes an obligation on the Community legislature to ensure that a citizen of the European Union can actually enjoy the rights conferred on him under Article 18 EC. That obligation is all the more substantive since Community law on freedom of movement for persons comprises two sets of rules and thus is to an extent disparate in nature. There is no single general and exhaustive set of rules. 112. The significance of these matters is this. 113. For the economically active citizen the Treaty itself and the rules adopted under it provide for a regime for freedom of movement which affords the citizen the requisite guarantees. In principle Article 18 EC adds nothing in that regard. It is true that the rules on freedom of movement for workers are not in all circumstances appropriately tailored to changed social conditions (see point 34 above). In interpreting the relevant provisions of Community law the Court must, in my view, have regard as far as possible to those changed circumstances. Article 18 EC plays no role in that connection. 114. For the economically non-active citizen the rules are laid down in Directive 90/364 and Directives 90/365 and 93/96 which are related thereto. The rights accruing to this group of citizens under these directives acquire the status of Treaty rights under Article 18 EC. For this group Article 18 EC acts in the nature of a guarantee. The Community legislature is obliged to create and maintain a right which has substance. 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 Article 18. Since there is no single general and all-embracing set of rules concerning the exercise of the right of residence in Community law recourse must be had in cases for which the Community legislature has made no provision to Article 18 EC. However, that does not mean that an unrestricted right of residence is recognised in those - special - cases. The conditions and limitations imposed on that right by EC law must be applied by analogy as far as possible to persons who derive their right to reside directly from Article 18 EC. The wording of the second part of Article 18(1) EC forms the basis for that. 116. The referring tribunal directs its question to the particular situation of workers. Mr Baumbast is no longer a worker in the sense that he can no longer rely on Article 39 EC. It would be possible for his right to reside to be based on Directive 90/364 which makes provision for persons who are not or are no longer active. However, he does not satisfy the requirements to be met under Directive 90/364 for entitlement to a right to reside. He is compulsorily insured in Germany for sickness costs and thus does not have sickness insurance covering all risks in the host Member State, as required by the directive. On that view of the matter his right to remain would be refused since he does not satisfy one of the criteria of Directive 90/364. 117. However, there is a more important reason why Mr Baumbast has no right to reside under Directive 90/364. For he continues to be active as an employed person; only he is no longer employed in the United Kingdom. For those reasons it is logical that the rules concerning economically active persons be applied by analogy, and not those concerning non-economically active persons. 118. The requirement of sickness insurance in the host Member State does not apply to economically active persons. The reason for that requirement is to prevent migrant citizens of the European Union from becoming an unreasonable burden on the public finances of the host Member State. (57) That risk does not arise in the case of economically active persons since they may be deemed to have sufficient resources for subsistence from their economic activities. There is thus no ground for refusing Mr Baumbast a right of residence on the ground that he is not covered by sickness insurance in the host Member State. 119. The Court must therefore assess whether Mr Baumbast can derive a right of residence from Article 18 EC by application by analogy of the rules for economically active persons, in particular Article 39 EC and Regulation No 1612/68. 120. The reason why Mr Baumbast cannot derive any rights from Article 39 EC and Regulation No 1612/68 has to do with the fact that the rules on freedom of movement for persons have not kept up with the pace of developments. Those rules came into force at the end of the 1960s and have since then not been brought up to date to reflect changes in society. I discussed this situation in some detail above (point 22 et seq.). On adoption of the regulation manifestly no account was taken of a case in which a person is ordinarily resident in one Member State whilst working for short periods and in different places for an undertaking which is established in another Member State. 121. This is a case which was not provided for by the Community legislature. There is no regulatory framework within which the right to remain may be exercised. On those grounds I apply by analogy the regulatory framework applicable to economically active persons. Save for the circumstance not provided for by the Community legislature that Mr Baumbast is not employed in the host country, he satisfies all the other requirements for residence in the United Kingdom; he is the national of a Member State of the European Union, he is a worker, he is resident in another Member state of the European Union (United Kingdom) and his family has a right to remain under Regulation No 1612/68. 122. I therefore also conclude that Mr Baumbast has a right to remain in the United Kingdom based on Article 18 EC in conjunction with Article 39 EC. 123. In paragraphs (b) and (c) of its third question the referring tribunal also raises the question of the rights of members of Mr Baumbast's family. In my view the reply to be given in this regard can be brief. The 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. 124. Finally, I refer to the right to respect for family life which is enshrined in Article 8 of the ECHR. (58) Community legislation on rights of residence, and in particular Regulation No 1612/68, adequately observes Article 8 of the ECHR since the worker's right of residence is also applicable to members of his family. Applied to the Baumbast case, that would not be otherwise if the Court were to form the view that under Community law Mr Baumbast has no right to remain in the United Kingdom. 125. I have said that, under certain specific conditions, Regulation No 1612/68 gives the parent carer the right to remain in the host Member State for the purpose of the children's education. In my view it would be going too far to infer such a right in favour of the parent who is not the primary carer. Nor can such a right be subsumed under the right to respect for family life, as safeguarded under Community law. There are real alternatives available to the 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 authorise family reunion in its territory. 126. I would summarise the foregoing as follows. Article 18(1) EC gives the citizen the right to move and reside freely within the European Union. The extent of that right is determined by the 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. 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 concerning the third question, namely that Mr Baumbast has a right of residence as a citizen of the European Union, the fourth question does not arise. If however the Court should take the opposite view in its reply to the third question, a reply to the fourth question merely constitutes a repetition of the replies to the first and second questions. IX - Conclusion 128. In light of the foregoing considerations I propose that the Court should reply as follows to the referring tribunal's questions: On the first question: children who under Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community have installed themselves in a host Member State, as a result of the fact that one of their parents was employed in that Member State, retain under Article 12 of that regulation the right to continue in the host Member State education already commenced there and to remain for that purpose in that Member State. As long as one of the parents is employed as a worker their right to remain is at the same time founded on Article 10 of the regulation, even where the parents are divorced and the children do not live under the same roof as the parent/worker. On the second question: In a situation such as that described in the reply to the first question where children have a right to remain for the purpose of continuing their education, the parent carer also has a right to remain if that is necessary for the exercise by the children of their rights. 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 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. 1: - Original language: Dutch. 2: - For the sake of the privacy of those concerned that family is indicated by the letter R. 3: - OJ, English Special Edition 1968 (II), p. 475. 4: - OJ, English Special Edition (II), p. 402. 5: - Under Article 2 of this regulation a worker may under certain conditions retain the right to remain after reaching pensionable age, in the event of incapacity for work and if he goes to work in another Member State but retains his residence in the State where he previously resided as a worker. 6: - OJ English Special Edition (1963-1964), p. 117. 7: - OJ English Special Edition 1968(II), p. 485. 8: - OJ 1990 L 180, p. 26. 9: - Case C-130/95 [1997] ECR I-4291. 10: - Proposal for a European Parliament and Council Regulation amending Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community (OJ 1998 C 344, p. 7). 11: - See in particular Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377. 12: - Council Directive of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity (OJ 1990 L 180, p. 28). 13: - Council Directive of 29 October 1993 on the right of residence for students (OJ 1993 L 317, p. 59). 14: - Case 267/83 Diatta [1985] ECR 567. 15: - Case 63/76 Inzirillo [1976] ECR 2057. 16: - Case 315/85 Lebon [1987] ECR 2811. 17: - Cited above at footnote 13. 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. 1-1148. 19: - Joined Cases 389/87 and 390/87 [1989] ECR 723. 20: - See paragraphs 19 and 20 of the judgment. 21: - C-308/89 [1990] ECR I-4185. 22: - Case C-7/94 [1995] ECR I-1031. 23: - Case 197/86 Brown [1988] ECR 3205. 24: - Case C-85/96 [1998] ECR I-2691, paragraph 32. 25: - Case C-3/90 Bernini [1992] ECR I-1071, paragraph 24 et seq., and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 19. 26: - See also Meeusen, cited above at footnote 25. 27: - Case 32/75 [1975] ECR 1085. 28: - Cited at footnote 24. 29: - Case C-356/98 [2000] ECR I-2623. 30: - Opinion in Martínez Sala, cited at footnote 24, paragraph 18. 31: - Cited above at footnote 30. 32: - See Christian Tomuschat, Commentary on Case C-85/96 Maria Martínez Sala v Freistaat Bayern, Common Market Law Review, 37, Kluwer Law International, Netherlands, 2000, p. 453. 33: - Case C-378/97 [1999] ECR I-6207. 34: - Paragraph 28 of the Opinion in Case C-192/99 Kaur [2001] ECR I-1237. 35: - Cited above at footnote 29. 36: - See, for example, Steve Peers, Dazed and confused: family members' residence rights and the Court of Justice, European Law Review, 26, Sweet & Maxwell, United Kingdom, 2001, p. 76. 37: - See, inter alia, footnote 16 in the Opinion of Advocate General Léger in Case C-192/99, cited in footnote 34 above, in which he refers, inter alia, to the judgment in Case C-260/89 ERT [1991] ECR I-2925. 38: - Case 249/86 [1989] ECR 1263, paragraph 10. 39: - OJ 2000 C 364, p. 1. 40: - Eur. Court HR, Ahmut judgment of 28 November 1996, Reports of Judgments and Decisions 1996-VI. 41: - See point 41 hereof. 42: - Cited in footnote 19. 43: - Cited above in footnote 22. 44: - Cited above in footnote 27. 45: - The Commission refers here to Diatta, cited above in footnote 13. 46: - See also point 41 hereof. 47: - Cited above at footnote 14. 48: - See point 12 hereof; and also the appellants' observations reproduced above. 49: - See point 55 hereof. 50: - In this connection see point 41 hereof. 51: - At point 58 hereof I already discussed the significance for Community law of the fundamental rights laid down in the ECHR. In addition to Article 8 of the ECHR see also the comparable, but non-binding, Article 7 of the Charter of Fundamental Rights of the European Union. 52: - See point 52 hereof. 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. 55: - See also point 34 hereof. 56: - That article is a literal replication of the first part of Article 18 EC. 57: - See the fourth recital in the preamble to the directive. 58: - And also in the non-binding Charter on the Fundamental Rights of the European Union; see point 59 above.