OPINION OF ADVOCATE GENERAL

GEELHOED

delivered on 2 December 2004

Case C-374/03



Gaye Gürol

v

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)

‘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?’

– 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.’

– Original language: Dutch.

– 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.

– 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).

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

– 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).

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

– Case 12/86 Demirel [1987] ECR 3719, paragraph 14.

– Case C‑192/89 Sevince [1990] ECR I‑3461, paragraph 15.

– Council Directive of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26).

– Council Directive of 29 October 1993 on the right of residence for students (OJ 1993 L 317, p. 59).