WRITTEN QUESTION E-2463/03 by Professor Sir Neil MacCormick (Verts/ALE) to the Commission. Under-age EU citizens.
Date: 2003-07-23
Institutions: European Parliament, Provisional data
Subjects: European citizenship, child, child of migrant, foreign national, free movement of persons, interpretation of the law, residence, residence permit

C 70 E/102

Official Journal of the European Union

EN

20.3.2004

The Commission therefore has no intention of amending its above decision so as
ESB subsidiaries from the AER scheme.

to exclude

The aforementioned Commission decision does not exclude the possibility of selected green electricity
producers, including some ESB subsidiaries, receiving state aid. It merely rules out the possibility of ESB,
as the channel for aid and the recipient of state subsidies which it redistributes in full to selected green
electricity producers, itself receiving aid within the meaning of Article 87(1) of the EC Treaty on that basis.
As such, the Commission’s conclusions are not affected by the facts as reported by the Honourable
Member.

Accordingly, the Commission does not intend to intervene in the award of contracts to ESB or its partners.

(1) Commission decision in case N 553/01, OJ C 45, 19.2.2002.
(2) Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the

water, energy, transport and telecommunications sectors, OJ L 199, 9.8.1993.

(2004/C 70 E/103)

WRITTEN QUESTION E-2463/03

by Professor Sir Neil MacCormick (Verts/ALE) to the Commission

Subject: Under-age EU citizens

(23 July 2003)

Can the Commission comment on the rights of under-age EU citizens in respect of residence within the
Union? If an under-age EU citizen has parents who are not themselves EU citizens, it appears that the
under-age EU citizen has no right of residence within the Union. This is because the rights do not apply to
non-EU parents of EU under-age citizens. Does the Commission consider that this is an accurate statement
of the position, and if so does it not consider that current arrangements are in violation of the Charter of
Fundamental Rights of the European Union, Article 24(3)?

Answer given by Mr Vitorino au nom de la Commission

(25 September 2003)

An under-age Union citizen has the right to reside in another Member State as long as he/she fulfils the
conditions for exercising the right of residence under Community legislation, i.e. being a worker (salaried
or self-employed), a student or somebody with enough financial resources and a medical insurance.

Under Community legislation the right of residence of a Union citizen, except in the case of students,
extends to his/her parents, regardless of their nationality, if they are dependent on the Union citizen. In the
case of an under-age child, this is in general not the case, as usually it is the child who is dependent on the
parents.

Nevertheless, if the under-age child fulfilled the conditions of right of residence recalled above and his/her
parents were financially dependent on him/her, the parents would enjoy a right of residence under
Community law.

However,
in the recent Judgement of the Court of Justice of 17 September 2002 in Case C-413/99
Baumbast and R, the Court of Justice confirmed the principle whereby the provisions of Community law
concerning free movement of persons must be interpreted in the light of the requirement for respect for
family life, provided for by Article 8 of
the Convention on the Protection of Human Rights and
Fundamental Freedoms (ECHR), this respect being one of the basic rights recognised by Community law.

20.3.2004

EN

Official Journal of the European Union

C 70 E/103

Applying this principle, the Court held that where children enjoy a right of residence in a Member State to
follow courses of general education there in accordance with Article 12 of Regulation (EEC) No 1612/68 of
the Council of 15 October 1968 on freedom of movement for workers within the Community (1), this
provision, if it is not to be deprived of its useful effect, must be interpreted as allowing the parent who has
actual care of the children, irrespective of nationality, to remain with them so as to facilitate the exercise of
that right, even if the parents are divorced or the parent who has Union citizenship is no longer a migrant
worker in the host Member State.

It follows from this judgement that the parent, irrespective of nationality, who has actual care of the child,
even if he or she is not gainfully employed in the host Member State, has the right of residence and cannot
be obliged to prove that he or she has sufficient resources or healthcare insurance, because the right of
residence is based not on Council Directive 90/364/EEC of 28 June 1990 on the right of residence (2) but
on Article 12 of Regulation (EEC) No 1612/68, which does not impose such conditions.

Another interesting case, addressing the issue of rights parents can derive from their underage children,
is being currently examined by the Court of Justice (Case C-200/02 Chen). The case concerns the right of
residence of a Chinese mother of a baby girl who is Irish. The Chinese mother went to give birth to her
child in Ireland in order for the child to acquire Irish nationality. Mother and daughter then moved to the
United Kingdom where the Chinese mother claimed right of residence under Community legislation. The
Court will ascertain whether the mother can derive her right of residence from her child, even if the child
does not fulfil the conditions of right of residence and her mother is not dependent on her (in this case the
baby is dependent on the mother). The answer given by the Court will clarify the issue.

(1) OJ L 257, 19.10.1968.
(2) OJ L 180, 13.7.1990.

(2004/C 70 E/104)

WRITTEN QUESTION E-2467/03

by Catherine Stihler (PSE) to the Commission

(24 July 2003)

Subject: Digital tachographs: Corrections to Annex 1B

On 16 December 2002 there was a meeting held in Brussels between the Commission and manufacturers
of tachograph equipment and cards. This meeting highlighted the fact that a number of errors had
appeared in the text of Annex 1B between submission for publication by the Commission and publication
in the Official Journal. These errors, though apparently small, were such that type approval was not
possible without correction of the text. A tachograph CATP meeting was held on 26 June 2003 where
these errors were reviewed and corrections were agreed. The Commission stated at the CATP meeting that
the corrections would probably be published in the Official Journal in September 2003.

Whilst it is quite acceptable to carry out type-approval testing against requirements not yet published, it is
normal legal practice only to issue type-approval certificates against an officially published text.

Will the Commission please confirm that this is the case here? In other words, please confirm that type-
approval certificates may only be issued after publication of the text against which approval is sought?

If the Commission is unable to confirm this interpretation, will it please indicate the legal basis for its
alternative interpretation?