Judgment of the Court of 17 September 2002 in Case C-413/99 (Reference for a preliminary ruling from the Immigration Appeal Tribunal): Baumbast, R v Secretary of State for the Home Department (Freedom of movement for persons — Migrant worker — Rights of residence of members of the migrant worker's family — Rights of the children to pursue their studies in the host Member State — Articles 10 and 12 of Regulation (EEC) No 1612/68 — Citizenship of the European Union — Right of residence — Directive 90/364/EEC — Limitations and conditions)
Date: 2002-11-09
Institutions: Court of Justice
Subjects: child of migrant, general education, interpretation of the law, residence, residence permit

C 274/2

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Official Journal of the European Communities

9.11.2002

2.

3.

Community law does not prohibit a Member State from
resisting actions for repayment of charges levied in breach of
Community law by relying on a time-limit under national law
of three years, by way of derogation from the ordinary rules
governing actions between private individuals for the recovery of
sums paid but not due, for which the period allowed is more
favourable, provided that that time-limit applies in the same
way to actions based on Community law for repayment of such
charges as to those based on national law.

Community law precludes the adoption by a Member State of
provisions making repayment of a tax held to be contrary to
Community law by a judgment of
the Court, or whose
incompatibility with Community law is apparent from such a
judgment, subject to conditions relating specifically to that tax
which are less favourable than those which would otherwise be
applied to repayment of the tax in question.

( 1) OJ C 226 of 7.8.1999.

the Guarantee Section of the European Agricultural Guidance
and Guarantee Fund (EAGGF) (OJ 1999 L 226, p. 26), in so far
as it imposes on the Federal Republic of Germany a flat-rate
correction of 5 % to the expenditure declared in respect of
financial support in the arable crops sector in Mecklenburg-
Vorpommern, equal to the sum of DEM 30 394 115,33,
instead of 2 %, equal to the sum of DEM 12 157 646,13 —
the Court (Fifth Chamber), composed of: P. Jann, President of
the Chamber, S. von Bahr (Rapporteur), D.A.O. Edward,
A. La Pergola, and C.W.A. Timmermans, Judges; C. Stix-
Hackl, Advocate General; M.-F. Contet, Administrator, for the
Registrar, has given a judgment on 19 September 2002, in
which it:

1. Dismisses the action;

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 366 of 18.12.1999.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 19 September 2002

in Case C-377/99: Federal Republic of Germany v Com-
mission of the European Communities (1)

(EAGGF — Clearance of accounts — 1995 financial year
— Arable crops)

(2002/C 274/02)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-377/99, Federal Republic of Germany (Agents:
initially by W.-D. Plessing and C.-D. Quassowski and sub-
sequently W.-D. Plessing and B. Muttelsee-Schön) v Com-
mission of the European Communities (Agents: M. Niejahr and
G. Braun) — application for partial annulment of Commission
Decision 1999/596/EC of 28 July 1999, amending Decision
1999/187/EC on the clearance of the accounts presented by
the Member States in respect of the expenditure for 1995 of

JUDGMENT OF THE COURT

of 17 September 2002

in Case C-413/99 (Reference for a preliminary ruling
from the Immigration Appeal Tribunal): Baumbast, R v
Secretary of State for the Home Department (1)

(Freedom of movement for persons — Migrant worker —
Rights of residence of members of the migrant worker’s
family — Rights of the children to pursue their studies in
the host Member State — Articles 10 and 12 of Regulation
(EEC) No 1612/68 — Citizenship of the European Union —
Right of residence — Directive 90/364/EEC — Limitations
and conditions)

(2002/C 274/03)

(Language of the case: English)

In Case C-413/99: Reference to the Court under Article 234
EC by the Immigration Appeal Tribunal (United Kingdom) for

9.11.2002

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Official Journal of the European Communities

C 274/3

a preliminary ruling in the proceedings pending before that
court between Baumbast, R and Secretary of State for the
Home Department, on the interpretation of Article 18 EC and
Article 12 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers
within the Community (OJ, English Special Edition 1968 (II),
p. 475), the Court, composed of: G.C. Rodríguez Iglesias,
President, P. Jann, F. Macken (Rapporteur), N. Colneric and
S. von Bahr
(Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola, J.-P. Puissochet, M. Wathelet,
V. Skouris, J.N. Cunha Rodrigues and C.W.A. Timmermans,
Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Adminis-
trator, for the Registrar, has given a judgment on 17 September
2002, in which it has ruled:

1.

Children of a citizen of the European Union who have installed
themselves in a Member State during the exercise by their
parent of rights of residence as a migrant worker in that
Member State are entitled to reside there in order to attend
general educational courses there, pursuant to Article 12 of
Regulation (EEC) No 1612/68 of the Council of 15 October
1968 on freedom of movement
for workers within the
Community. The fact that the parents of the children concerned
have meanwhile divorced, the fact that only one parent is a
citizen of the Union and that parent has ceased to be a migrant
worker in the host Member State and the fact that the children
are not themselves citizens of the Union are irrelevant in this
regard.

2. Where children have the right to reside in a host Member State
in order to attend general educational courses pursuant to
Article 12 of Regulation (EEC) No 1612/68, that provision
must be interpreted as entitling the parent who is the primary
carer of those children, irrespective of his nationality, to reside
with them in order to facilitate the exercise of that right
notwithstanding the fact that the parents have meanwhile
divorced or that the parent who has the status of citizen of the
European Union has ceased to be a migrant worker in the host
Member State.

3. A citizen of the European Union who no longer enjoys a right
of residence as a migrant worker in the host Member State can,
as a citizen of the Union, enjoy there a right of residence by
direct application of Article 18(1) EC. The exercise of that right
is subject to the limitations and conditions referred to in that
provision, but the competent authorities and, where necessary,
the national courts must ensure that those limitations and
conditions are applied in compliance with the general principles
of Community law and, in particular, the principle of pro-
portionality.

( 1) OJ C 6 of 8.1.2002.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 24 September 2002

in Case C-471/99 (Reference for a preliminary ruling from
the Sozialgericht Nürnberg): Alfredo Martínez Domín-
guez, Joaquín Benítez Urbano, Agapito Mateos Cruz,
Carmen Calvo Fernández v Bundesanstalt für Arbeit,
Kindergeldkasse (1)

(Regulation (EEC) No 1408/71 — Articles 77 and 78 —
Pensioners under the legislation of several Member States
— Pensioners under a social-security convention between
Member States concluded prior to accession to the European
Communities — Benefits for dependent children and for
orphans of pensioners — Entitlement to family benefits for
which the competent institution of a Member State other
than that of residence is responsible — Conditions of
entitlement)

(2002/C 274/04)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-471/99: Reference to the Court under Article 177
of the EC Treaty (now Article 234 EC) by the Sozialgericht
Nürnberg (Germany) for a preliminary ruling in the proceed-
ings pending before that court between Alfredo Martínez
Domínguez, Joaquín Benítez Urbano, Agapito Mateos Cruz,
Carmen Calvo Fernández and Bundesanstalt für Arbeit, Kinder-
geldkasse, on the interpretation of Articles 77(2)(b), 78(2)(b)
and 79(1) of Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security schemes to
employed persons, to self-employed persons and to members
of their families moving within the Community, as amended
and updated by Council Regulation (EEC) No 2001/83 of
2 June 1983 (OJ 1983 L 230, p. 6), the Court
(Sixth
Chamber), composed of: F. Macken, President of the Chamber,
C. Gulmann (Rapporteur), R. Schintgen, V. Skouris and
J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General;
L. Hewlett, Administrator,
for the Registrar, has given a
judgment on 24 September 2002, in which it has ruled:

Articles 77(2)(b) and 78(2)(b) of Council Regulation (EEC) No
1408/71 of 14 June 1971 on the application of social security
schemes to employed persons,
to self-employed persons and to
members of their families moving within the Community, as amended
and updated by Council Regulation (EEC) No 2001/83 of 2 June
1983, and read in conjunction with Article 79(1) thereof, must be
interpreted as meaning that the competent institution of a Member
State other than that of the residence of a person in receipt of an old-
age or invalidity pension, or of the residence of orphans of a deceased
worker, is not required to grant the persons concerned benefits for
dependent children or for orphans where the conditions laid down by