Case C-374/03

Gaye Gürol

v

Bezirksregierung Köln

(Reference for a preliminary ruling from the Verwaltungsgericht Sigmaringen)

(EEC-Turkey Association Agreement –– Article 9 of Decision No 1/80 of the Association Council –– Direct effect –– Access to education for children of a Turkish worker duly registered as belonging to the workforce –– Children living with their parents –– Education grant)

Opinion of Advocate General Geelhoed delivered on 2 December 2004

Judgment of the Court (First Chamber), 7 July 2005

Summary of the Judgment

1. International agreements — EEC-Turkey Association Agreement — Association Council created by the EEC-Turkey Association Agreement – Decision No 1/80 —Right of Turkish children to access to education and vocational training and to benefit from national advantages (Article 9) — Direct effect — Eligibility for an education grant for studies pursued abroad — Studies pursued in Turkey — Irrelevant

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 9)

2. International agreements — EEC-Turkey Association Agreement — Association Council created by the EEC-Turkey Association Agreement – Decision No 1/80 — Right of Turkish children to access to education and vocational training (Article 9, first sentence) — Condition of residing ‘with their parents’ — Definition — Child having his main residence in a university town and only a secondary residence with his parents — Included

(Decision No 1/80 of the EEC-Turkey Association Council, Art. 9)

1. Article 9 of Decision No 1/80 of the EEC-Turkey Association Council, which enshrines the right of Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed there 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, and to benefit from the advantages in that area provided for by national law, has direct effect in the Member States.

That provision lays down a duty of equal treatment in access to education and vocational training on the basis of the same qualifications and in entitlement to benefit from the advantages provided for in that area which, by its nature, may be relied on by an individual before a national court in order to request it to disapply the discriminatory provisions of the legislation of a Member State under which the grant of a right or advantage is subject to a condition not imposed on nationals, no further implementing measures being required.

Given that Turkish children are thus guaranteed non-discriminatory access to provisions for education grants, if the host Member State offers its own nationals the opportunity of receiving an education grant for studies pursued abroad, in the light of the wording of the second sentence of Article 9 of Decision No 1/80 and in order to maintain equality of opportunities between students, Turkish children must be eligible for the same advantage if they intend to follow courses outside that Member State. In this connection nothing warrants depriving Turkish children of the benefit of equal treatment simply because they decide to pursue that education in their family’s State of origin.

(see paras 22-23, 26, 42-45, operative parts 1, 3)

2. The condition of residing with parents in accordance with the first sentence of Article 9 of Decision No 1/80 of the EEC-Turkey Association Council is met in the case of a Turkish child who, after residing legally with his parents in the host Member State, establishes his main residence in the place in the same Member State in which he follows his university studies, while declaring his parents’ home to be his secondary residence only.

That provision does not make entitlement to the right to equal access to education and vocational training subject to either any special rules of residence with parents during the period of education, such as the existence of a home common to children and parents, or to any special kind of residence during that period, such as a main residence rather than a secondary residence. Furthermore, that interpretation is necessary in order to ensure that the objective pursued by that provision is fully attained, that is to say, that Turkish children should be entitled to education and vocational training in their parents’ host state without their choice being restricted as to the kind of education or training provided.

(see paras 30-31, 33, operative part 2)

JUDGMENT OF THE COURT (First Chamber)

7 July 2005 ( )

(EEC-Turkey Association Agreement – Article 9 of Decision No 1/80 of the Association Council – Direct effect – Access to education for children of a Turkish worker duly registered as belonging to the workforce – Children living with their parents – Education grant)

In Case C-374/03,

REFERENCE under Article 234 EC for a preliminary ruling, from the Verwaltungsgericht Sigmaringen (Germany), made by decision of 31 July 2003, received at the Court on 8 September 2003, in the proceedings

Gaye Gürol

v

Bezirksregierung Köln,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, K. Lenaerts, J.N. Cunha Rodrigues (Rapporteur), E. Juhász and M. Ilešič, Judges,

Advocate General: L.A. Geelhoed,

Registrar: M.-F. Contet, Principal Administrator,

having regard to the written procedure and further to the hearing on 21 October 2004,

after considering the observations submitted on behalf of:

– Ms Gürol, by I. Baysu, Rechtsanwältin,

– the Bezirksregierung Köln, by R. Bongs and E. Frings-Schäfer, acting as Agents,

– the German Government, by C.-D. Quassowski and A. Tiemann, acting as Agents,

– the Austrian Government, by E. Riedl, acting as Agent,

– the Commission of the European Communities, by B. Martenczuk and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 December 2004,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 9 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (‘Decision No 1/80’). The Association Council was created by the 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, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1) (‘the Association Agreement’).

2 This reference was made in the course of proceedings between Gaye Gürol, a Turkish national, and the Bezirksregierung Köln (District Council, Cologne) concerning an application for a grant under the Federal Law on the encouragement of education and training (Bundesausbildungsförderungsgesetz, ‘the BAföG’).

Law

The EEC-Turkey Association

3 Article 12 of the Association Agreement stipulates that:

‘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.’

4 Under Article 36 of the Additional Protocol, 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 (Journal Officiel 1972 L 293, p. 1, ‘the Additional Protocol’):

‘Freedom of movement for workers between Member States of the Community and Turkey is to be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the 12th and the 22nd year after the entry into force of that agreement. The Council of Association is to decide on the rules necessary to that end.’

5 Article 9 of Decision No 1/80 is worded 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.’

The relevant provisions of national law

6 According to Paragraph 1 of the BAföG:

‘By virtue of this law, there exists a right to an individual study grant for education or training corresponding to the student’s interests, abilities and results if he does not otherwise have available to him the means necessary for his maintenance and education.’

7 Paragraph 5 of the BAföG, headed ‘Education or training abroad’, provides in subparagraph 2:

‘Students with a permanent residence in the national territory shall be awarded a grant for study at an educational or training institute abroad:

– if those 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, or

– if, 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 foreign institutes, or

– if, having attended a German educational or training institute for at least a year, the student follows a course in an educational or training institute of a Member State of the European Union,

and possesses sufficient language knowledge. As regards vocational training institutes, subparagraph 1 shall apply only where the study programme requires such a stay in that country in order for knowledge of the language to be acquired. The education or training must last at least six months or half a year; if it takes place in the context of cooperation with the foreign institute, it must last at least twelve weeks. Subparagraph 1 shall apply to the students mentioned in paragraph 8(2) of the BaföG only where the stay abroad is required by the provisions concerning education or training as a part of such education or training which must necessarily take place abroad.’

8 Paragraph 8(1) of the BAföG provides:

‘A grant for education or training shall be awarded:

1. to Germans, within the meaning of the Basic Law (Grundgesetz);

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

3. to foreigners resident in Germany and having a right to asylum in accordance with the Law on asylum procedure;

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

5. to foreigners normally resident in Germany, recognised as refugees and entitled to stay in the territory of the Federal Republic of Germany on not merely a temporary basis;

6. to foreigners normally resident in Germany and protected against deportation in accordance with Paragraph 51(1) of the Law on foreigners;

7. to foreigners having their permanent residence in the area in which the Law applies, if one of the parents is German within the meaning of the Basic Law;

8. to students who as children are entitled, in accordance with the Law on residence for Community nationals (Aufenthaltgesetz/EWG) to freedom of movement, who as children have a right under that Law to remain or to students who do not have the right of free movement or the right to remain as children under that Law only because they are 21 years of age or more and are not maintained by their parents or partner;

9. to students who are nationals of another Member State of the European Community or another State party to the European Economic Area Agreement and who were employed in Germany before beginning their education or training; there must as a rule be some connection between the content of the activity pursued during that employment and that of the education or training.’

9 In accordance with subparagraph 2(2) of that provision:

‘Other foreigners shall be awarded grants for education or training only if, for a total of three years during the six years before the beginning of the part of the education or training eligible for a grant, at least one parent lived and was legally employed in Germany.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10 Ms Gürol, the applicant in the main proceedings, is a Turkish national born in Germany whose parents, who are also Turkish, live in that Member State, like their daughter, and are legally employed there.

11 From the start of the academic year 1995 Ms Gürol studied political economy, special option ‘regional studies’, at the University of Tübingen (Germany). In order to complete that cycle of studies, she received an educational grant pursuant to the BAföG.

12 On starting her university studies Ms Gürol had established her main residence at Tübingen, declaring her secondary residence to be with her parents at Philippsburg (Germany). During the same cycle of studies, she followed a course at the University of Bogazici in Istanbul (Turkey), from October 1999 to September 2000. During her stay there, she declared her parents’ home as her main residence. After returning to Germany, she once more established her main residence in Tübingen and declared her parents’ home as her secondary residence.

13 On 13 August 1999, Ms Gürol made an application to the Landesamt für Ausbildungsförderung Nordrhein-Westfalen (Regional Office of North Rhine Westphalia for the encouragement of education and training), which has in the meantime been replaced by the Bezirksregireung Köln, for an education grant for the period of her studies in Istanbul.

14 By decision of 2 September 1999 that application was rejected by the defendant in the main proceedings pursuant to Paragraph 5(2) of the BAföG. As a matter of fact, the defendant took the view that Ms Gürol was to be regarded as a foreigner within the meaning of Paragraph 8(2)(2) of that Law, with the result that, unlike German nationals in particular, she would be entitled under the fourth sentence of Paragraph 5(2) of the BAföG to an education grant abroad only if ‘the stay abroad [were] required by the provisions concerning education or training as a part of such education or training which must necessarily take place abroad’. That is not, however, the case so far as the main cycle of studies chosen by Ms Gürol is concerned.

15 In fact, according to the defendant, the study programme for that course merely states that a period of study of one or two six-month terms in a university outside Germany represents a good opportunity for students who have chosen the option ‘regional studies’ to deepen their linguistic and cultural knowledge of the chosen region and to gain experience with a view, inter alia, to future career opportunities. It is purely a recommendation and does not state that a stay at a foreign university is necessary in order to complete the education in question although, by letter of 9 August 1999, the University of Tübingen certified that a period abroad was strongly urged by the university’s Faculty of Economic Science. In addition, the examination rules applicable to that study do not mention a period of study abroad as a condition for obtaining the diploma referred to.

16 The complaint lodged by Ms Gürol against that decision on 29 September 1999 was rejected by decision of 17 December 1999.

17 By action lodged on 2 February 2000 this case was brought before the national court, which notes that if no right to the grant sought arises under the BAföG, such a right might possibly find a basis in Article 9 of Decision No 1/80.

18 Those were the circumstances in which the Verwaltungsgericht Sigmaringen has decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the first sentence of Article 9 of Decision No 1/80 … 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, are entitled, on the basis of the same qualifications as the children of nationals of that Member State, to equal access to general education, apprenticeship and vocational training?

(2) If the first question should be answered in the affirmative:

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

(3) If the second question should be answered in the affirmative:

Does the first sentence of Article 9 of Decision No 1/80 … 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 are the first and second sentences of Article 9 … in conjunction to be interpreted as meaning that it remains open to the Member States to make the grant of social benefits in the area of education to the persons covered by the first sentence subject to other conditions or to limit those benefits?

(4) If both the second and third questions should be answered in the affirmative:

Does that also apply to a university education for the protected group of persons in their country of origin, Turkey?’

On the questions referred for a preliminary ruling

On the first question

19 By this question the national court asks whether the first sentence of Article 9 of Decision No 1/80 has direct effect in the territory of the Member States.

20 In accordance with the Court’s settled case-law, a provision in a decision of the EEC-Turkey Association Council must be regarded as having direct effect when, regard being had to its wording and to the purpose and nature of the decision of which it forms part and of the agreement to which it relates, that provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (Case C-192/89 Sevince [1990] ECR I-3461, paragraph 15, and Case C171/01 Wählergruppe Gemeinsam [2003] ECR I-4301, paragraphs 54 and 55).

21 As is acknowledged by all the interveners in these proceedings, the first sentence of Article 9 of Decision No 1/80 satisfies those conditions.

22 As regards the wording of that provision, it is to be noted that the latter enshrines the right of Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed there 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.

23 The first sentence of Article 9 of Decision 1/80 lays down a duty of equal treatment in access to education and vocational training on the basis of the same qualifications which, by its nature, may be relied on by an individual before a national court in order to request it to disapply the discriminatory provisions of the legislation of a Member State under which the grant of a right is subject to a condition not imposed on nationals, no further implementing measures being required (see, by analogy, Case C-262/96 Sürül [1999] ECR I-2685, paragraph 63).

24 That conclusion is borne out by the fact that Article 9 of Decision 1/80 constitutes nothing other than the application and concrete form, in the special sphere of access to education and vocational training in the host Member State (Case C-210/97 Akman [1998] ECR I-7519, paragraph 41), of the general principle of non-discrimination on grounds of nationality laid down in Article 9 of the Association Agreement, a provision that refers to Article 7 of the EEC Treaty (subsequently Article 6 of the EC Treaty, now, after amendment, Article 12 EC) (see, by analogy, Wählergruppe Gemeinsam, paragraph 59).

25 Nor is the finding that the principle of non-discrimination set out in the first sentence of Article 9 of Decision No 1/80 is capable of governing directly the situation of individuals gainsaid by the purpose and nature of that decision and the Association Agreement of which it is part (Wählergruppe Gemeinsam, paragraphs 61 to 65).

26 In those circumstances, the answer to be given to the first question has to be that the first sentence of Article 9 of Decision No 1/80 has direct effect in the Member States.

On the second question

27 The grounds of the order for reference make it clear that, by this question, the national court seeks in essence to ascertain whether the condition of residing with parents in accordance with the first sentence of Article 9 is met in the case of a Turkish child who, having resided legally with his parents in the host Member State, establishes his main residence in the place in the same Member State in which he follows his university studies, while declaring his parents’ home to be his secondary residence only.

28 The court making the reference wonders in particular whether the condition of residence laid down in the first sentence of Article 9 of Decision 1/80 assumes that there must be a common family home or whether a common residence is enough and whether, in the latter case, that condition is met if a secondary residence is maintained with the parents.

29 A Turkish child who, as in the case in the main proceedings, resides legally in the host Member State with his parents and, on beginning his studies, transfers his main residence from the place where his parents live to the place where the educational or training institute is situated, in that same Member State, meets the condition of residence laid down in the first sentence of Article 9 of Decision No 1/80.

30 First, that provision does not make entitlement to the right to equal access to education and vocational training subject to either any special rules of residence with parents during the period of education, such as the existence of a home common to children and parents, or to any special kind of residence during that period, such as a main residence rather than a secondary residence.

31 Second, that interpretation is necessary in order to ensure that the objective pursued by that provision is fully attained, that is to say, that Turkish children should be entitled to education and vocational training in their parents’ host State without their choice being restricted as to the kind of education or training provided.

32 Not all kinds of education and training are, as a matter of fact, provided close to the parents of the person concerned, with the result that it is only the latter’s right to establish himself in a place other than that of his parents’ residence that may, in some circumstances, be capable of ensuring that Turkish children actually enjoy, like the children of nationals of the host Member State, the choice of the education or training that they propose to follow.

33 Consequently, the answer to be given to the second question has to be that the condition of residing with parents in accordance with the first sentence of Article 9 is met in the case of a Turkish child who, after residing legally with his parents in the host Member State, establishes his main residence in the place in the same Member State in which he follows his university studies, while declaring his parents’ home to be his secondary residence only.

On the third and fourth questions

34 By these questions, which may appropriately be examined together, the national court seeks in substance to ascertain whether the first and second sentences of Article 9 of Decision No 1/80 must be interpreted as guaranteeing, in favour of persons covered by that provision, a non-discriminatory right of access to an education grant provided for by the legislation at issue in the main proceedings and whether, if the answer should be ‘Yes’, that right applies equally in the case of a course of higher education followed in Turkey.

35 It must be held that the education grant under the BAföG which, according to Paragraph 1 of the latter, is awarded to students who do not otherwise have available the means necessary for their maintenance and education, is, under Paragraph 5(2) of that Law, given to Turkish students wishing to undergo education abroad only when that education is required ‘by the provisions concerning education or training as a part of such education or training which must necessarily take place abroad’. In contrast, German nationals are entitled to such a grant if those studies abroad 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.

36 The first sentence of Article 9 of Decision No 1/80 gives Turkish children a non-discriminatory right of access to courses of general education, apprenticeship and vocational training in the host Member State. Equal access to education for the purposes of that provision thus extends to all forms of education, including courses in economic science such as those at issue in the main proceedings (see, by analogy, Joined Cases 389/87 390/87 Echternachand Moritz [1989] ECR 723, paragraphs 29 and 30).

37 The second sentence of that article states that Turkish children ‘may in [the host] Member State be eligible to benefit from the advantages provided for under the national legislation in this area’.

38 That statement is to be understood to mean that, since the legislation of the host Member State provides for advantages in the sphere of education, such as the grant at issue, intended to cover the costs of the student’s access to education and maintenance, Turkish nationals may be entitled to them in just the same way as the nationals of the Member State.

39 There would as a matter of fact be a risk that non-discriminatory access for Turkish children to courses of education and training, including those which, like that in the main proceedings, are provided abroad, would be purely illusory if they were not assured of an equal right to those advantages, such as the grant at issue.

40 That is also the only interpretation that makes it possible to attain in full the objective pursued by Article 9 of Decision 1/80, namely, to guarantee equal opportunities for Turkish children and those of nationals of the host Member State in the sphere of education and vocational training. Indeed, if the principle of equal treatment did not apply to studies undertaken abroad, the latter might have access to courses beneficial to their education whilst there would be a risk that Turkish children would be deprived of such courses, just as beneficial to their education, solely on the grounds that the courses were not essential to the accomplishment of the chosen education.

41 Moreover, the second sentence of Article 9 would be rendered ineffective if, as the Bezirksregierung Köln and the Austrian and German Governments would have it, it did no more than authorise the host Member State to grant Turkish children the advantages provided for by the latter’s domestic legislation, given that that State has no need of any such authorisation.

42 Like the first sentence of Article 9 of Decision No 1/80, that provision lays down an obligation of equal treatment in entitlement to the advantages granted in the sphere of education and vocational training which by its nature may be relied on by an individual before a national court in order to request it to disapply the discriminatory provisions of the legislation of a Member State under which the grant of a right is subject to a condition not imposed on nationals, no further implementing measures being required.

43 In those circumstances, and having regard to the considerations set out in paragraphs 24 and 25 above, the second sentence of Article 9 of Decision No 1/80 has direct effect in the Member States.

44 Given that Turkish children are thus guaranteed non-discriminatory access to provisions for education grants and that the host Member State offers its own nationals the opportunity of receiving an education grant for studies pursued abroad, in the light of the wording of the second sentence of Article 9 of Decision No 1/80 and in order to maintain equality of opportunities between students, Turkish children must be eligible for the same advantage if they intend to follow courses outside that Member State. In this connection nothing warrants depriving Turkish children of the benefit of equal treatment simply because they decide to pursue that education in their family’s State of origin.

45 In the light of the foregoing considerations, the answer to be given to the third and fourth questions must be that the second sentence of Article 9 of Decision 1/80 has direct effect in the Member States. That provision guarantees Turkish children a non-discriminatory right of access to education grants, such as that provided for under the legislation at issue in the main proceedings, that right being theirs even when they pursue higher education studies in Turkey.

Costs

46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

1. The first sentence of Article 9 of Decision No 1/80 of the Association Council 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, has direct effect in the Member States.

2. The condition of residing with parents in accordance with the first sentence of Article 9 is met in the case of a Turkish child who, after residing legally with his parents in the host Member State, establishes his main residence in the place in the same Member State in which he follows his university studies, while declaring his parents’ home to be his secondary residence only.

3. The second sentence of Article 9 of Decision No 1/80 has direct effect in the Member States. That provision guarantees Turkish children a non-discriminatory right of access to education grants, such as that provided for under the legislation at issue in the main proceedings, that right being theirs even when they pursue higher education studies in Turkey.

[Signatures]