Important legal notice
Opinion of Mr Advocate General Darmon delivered on 3 October 1990. - Carmina di Leo v Land Berlin. - Reference for a preliminary ruling: Verwaltungsgericht Darmstadt - Germany. - Non-discrimination - Child of a Community worker - Educational grant. - Case C-308/89.
European Court reports 1990 Page I-04185
Swedish special edition Page 00583
Finnish special edition Page 00607
Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . By order of 11 September 1989, the Verwaltungsgericht Darmstadt referred a question to the Court for a preliminary ruling on the interpretation of 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 ) That question has arisen in a dispute between Carmina di Leo and the Land Berlin .
2 . Miss di Leo, an Italian national, is the daughter of an Italian migrant worker who has been employed in the Federal Republic of Germany for the past 25 years . According to the order for reference, she has her primary residence in that State . In view of the restrictive conditions of admission for medicine which were in force at the time in the Federal Republic of Germany, Miss di Leo decided to undertake medical studies in Italy and enrolled at the University of Sienna for the 1986/87 academic year . On 15 May 1987 she applied, in order to pursue those studies, for a grant under the Bundesausbildungsfoerderungsgesetz ( Federal Law on Grants for Training and Further Education, known as the "BAFoeG ") in respect of the period from 30 September 1986 to 1992 . Her application was turned down by the competent national authorities, as was her complaint against the decision rejecting her application . Miss di Leo then instituted proceedings on 18 September 1987 before the Verwaltungsgericht Darmstadt, which has submitted this reference for a preliminary ruling .
3 . In the proceedings before the national court, the Land Berlin, the defendant in the main proceedings, contended that the action should be dismissed on the basis of certain provisions of the BAFoeG . I would point out, at this juncture, that the BAFoeG was amended between the time when Miss di Leo' s application was rejected and the time when the Verwaltungsgericht Darmstadt decided to submit a reference for a preliminary ruling . In the version of the BAFoeG which was in force until 30 June 1988, the educational grant to cover courses pursued in Europe, but outside German territory, which, according to the law, is possible if the education or training in question cannot be undertaken within German territory - as where there is a numerus clausus - and if the candidates possess the requisite linguistic knowledge, could be awarded only to Germans within the meaning of the Basic Law, stateless persons, foreigners entitled to asylum or refugees . Non-German nationals of the Community could not, according to the provisions of the BAFoeG applicable at the time, qualify for an educational grant under that law in order to study abroad . As a result of an amendment applicable since 1 July 1988, the grant is now also awarded to "persons seeking education or training who, under the Aufenthaltsgesetz EWG ( Law on Residence EEC ), enjoy freedom of movement or the right of residence as children ". ( 2 ) However, BAFoeG has made a restrictive adjustment to that extension by excluding the Community nationals referred to earlier from eligibility for the grant where the education or training is "provided in a State of which they are nationals ". ( 3 )
4 . Clearly, Miss di Leo' s application did not fulfil the conditions laid down by the BAFoeG, either in the version in force until 30 June 1988, or as subsequently amended . ( 4 ) However, the national court raised the question whether Community law required a Member State whose legislation provides for a grant in respect of education or training abroad to award such a grant to a person in Miss di Leo' s situation . In that regard, it referred more specifically to Article 12 of Regulation No 1612/68 .
5 . That provision, I would remind the Court, provides that "the children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State' s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory ". According to the established case-law of the Court, most recently referred to in the judgment in the Echternach and Moritz case, Article 12 :
"refers not only to the rules relating to admission itself, but also to general measures intended to facilitate educational attendance ". ( 5 )
In that judgment the Court held, in reply to a question on whether the financing of courses provided for by a 1986 Netherlands law constitutes one of the advantages referred to by Article 12, that :
"assistance granted to cover the costs of students' education and maintenance is to be regarded as a social advantage to which the children of Community workers are entitled under the same conditions as apply to the host country' s own nationals ". ( 6 )
6 . In the main proceedings, it is not contested that the grant in respect of education or training abroad, which was introduced by the BAFoeG, constitutes a grant awarded to cover the costs of the recipient' s education and maintenance, as defined by the Court . The problem of interpretation arises in connection with a possible territorial restriction of the scope of Article 12 . Relying, in particular, on the phrase with which the first paragraph of that provision ends, namely "if such children are residing in its territory", and on the objectives pursued by the Community legislature by means of Regulation No 1612/68, the Government of the Federal Republic of Germany has argued that the obligation on the part of a Member State to admit the children of a national of another Member State who is or has been employed in the territory of the first State to educational courses on the same conditions as those applied to its own nationals, was not incumbent upon it where the children of the migrant worker went to pursue a course abroad . In its observations at the hearing, the Government of the Netherlands concurred with that view . For its part, the Commission, supported by the Government of the Italian Republic, took the opposite view, according to which it was appropriate to consider, on a broad interpretation of Article 12, that the children of migrant workers should qualify for the grant by the host Member State of the same advantages as regards grants in respect of education or training abroad as those accorded to nationals of that State . Observations in support of a similar interpretation were submitted by Miss di Leo during the oral procedure .
7 . There is no doubt that Article 12 of Regulation No 1612/68 lays down a residence clause, inasmuch as the same conditions as those laid down by that provision must be granted by the host Member State to the children of a migrant worker if they reside within its territory . Furthermore, the obligation imposed on that State to admit the children of migrant workers to its "general educational, apprenticeship and vocational training courses" on the same conditions as its own nationals must, by definition, refer to the conditions governing admission to educational courses that are to be laid down by the host State, which could lead to the conclusion that educational courses undertaken outside the territory of that State fall in any event outside the scope of Article 12 . However, it is not so obvious from the actual wording of that provision that a child of a migrant worker who undertakes education or training outside the host State cannot, on the basis of that provision, apply for the grant in respect of education or training abroad which is awarded by that State to the children of its own nationals . The Court has not so far given a ruling on the question whether the wording of Article 12 had the effect of precluding account from being taken of the advantages connected with educational activities organized outside the host State . It is for the Court, therefore, to give a precise interpretation of that provision in these proceedings .
8 . The actual wording of the residence clause laid down by Article 12 calls for a preliminary observation . The same conditions of admission to educational courses as apply to nationals of the host State must be accorded to a child of a migrant worker if that child resides within the territory of that State . Here, it should be noted that emphasis is laid on the place where the child resides, and not on the place where the educational activity is organized . One possible situation is where a Member State awards to the children of those of its nationals who live in a frontier district a grant in respect of schooling which they receive beyond the frontier, whilst continuing to reside within it . Could that Member State refuse to award the grant in question to the children of migrant workers living in the same frontier district who also attend school beyond the frontier without changing their place of residence? In my view, it would be difficult for that State to rely on the residence clause in Article 12 as a ground for refusing to grant identical treatment inasmuch as, in the situation envisaged, the migrant worker' s children would continue to reside within the host State and would apparently satisfy the conditions laid down by that clause . This means that the fact that an educational course is pursued abroad, outside the host State is not absolutely the same as non-residence in the territory of that State . Hence it is appropriate to take a closer look at the scope of Article 12, as regards both the location of the educational activities which it covers and the condition of residence which it lays down .
9 . In support of the view that Article 12 should be given a strict interpretation, the Government of the Federal Republic of Germany has argued, in particular, that a grant awarded to the child of a migrant worker for the pursuit of a course outside the host State is unconnected with the objective pursued by Regulation No 1612/68, namely to ensure the integration of that worker and his family . In view of that argument, an attempt has to be made to define the objective in question, namely integration, in the light of the Court' s case-law .
10 . According to the third recital in the preamble to Regulation No 1612/68 "freedom of movement constitutes a fundamental right of workers and their families", and the fifth recital adds that this right "in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker' s right to be joined by his family and the conditions for the integration of that family into the host country ".
11 . In its case-law the Court has defined the link between the measures provided for by Regulation No 1612/68 with regard to equal treatment and the concept of integration . I shall refrain from citing the Court' s earliest judgments, with their now classic formulations, and confine myself to recalling the highly significant terms of its aforesaid judgment in Echternach and Moritz, where it emphasizes that :
"the equal treatment, in relation to national workers, to which workers of a Member State who are employed in another Member State are entitled as regards the benefits granted to members of their family, contributes to their integration in the society of the host country, in accordance with the aims of the freedom of movement for workers ". ( 7 )
12 . In the same judgment, the Court highlighted the relationship between the right of the children of migrant workers to study assistance from the State and the integration of such children, pointing out that :
"the status of child of a Community worker within the meaning of Regulation No 1612/68 implies, in particular, that it is recognized in Community law that such children must be eligible for study assistance from the State in order to make it possible for them to achieve integration in the society of the host country ". ( 8 )
In the light of those passages, I believe it is by reference to the objectives thus laid down by the Court with regard to integration that it is necessary to assess the scope of Article 12 of Regulation No 1612/68 as regards, in the first place, a possible territorial limitation of the courses to which it refers and, secondly, the condition of residence which it lays down .
13 . From that point of view, I cannot disguise my reluctance to accept the argument referred to earlier, to the effect that the pursuit of a course by a migrant worker' s child outside the territory of the host Member State cannot contribute to his integration in that State . If we consider, in particular, the possibility of that State refusing to award to a migrant worker' s child for the pursuit of a course abroad a grant which it awards to its own nationals, that would seem to suggest a lack of integration .
14 . Let us consider for a moment a situation in which two young people, one of whom is a national of a Member State and the other the child of a migrant worker from another Member State, have both completed their primary and secondary education and wish to enrol for the same course at university, but only the first of whom obtains a grant from the State in order to pursue that course abroad, whilst the other is refused such a grant . Is the latter, at the time when the refusal is notified to him, likely to experience a feeling of being integrated in the host Member State, a feeling that he was being treated by that State no differently from his fellow student whose nationality is different from his own? Integration is not simply a legal concept; it is also something which must be lived and experienced personally and intimately . Hence it is far from certain, in my view, that the actual possibility of a migrant worker' s child pursuing a course outside the host State, which may depend on the award of a grant by the State, is a priori unconnected with the aim of integration in that State .
15 . Thus the interpretation to the effect that the award of a grant to pursue educational activities outside the territory of the host State falls outside the scope of Article 12 is not in my view entirely consistent with the general aim of integration in the society of that State . The difference of treatment between a child who is a national of that State and the child of a migrant worker which would result from such an interpretation is all the more difficult to defend since the actual circumstances of the former and the latter may in fact be very similar . If a person has lived since birth or early childhood in a given place with his family, going to study in another country leads to a comparable change in the conditions of existence, both physical and emotional, whether or not that person is a national of the country left behind . The award or otherwise of a grant by that country in order to cope with the change must, in that respect as well, surely be relevant to the feeling of being integrated in that country .
16 . Hence it seems to me that the aim of integration in the society of the host Member State in no way requires Article 12 to be interpreted as not being applicable to courses pursued outside that State and may, on the contrary, justify the application to such courses of the principle of equal treatment embodied in that provision .
17 . Let me add that such an approach seems to find support in the Court' s judgment in the Matteucci case . ( 9 ) Interpreting Article 7(2 ) of Regulation No 1612/68, which provides that a worker who is a national of a Member State is to enjoy, in the territory of the other Member States, the same social advantages as national workers, the Court considered that that provision
"lays down a general rule which imposes responsibility in the social sphere on each Member State with regard to every worker who is a national of another Member State and established in its territory as far as equality of treatment with national workers is concerned",
and that, consequently,
"where a Member State gives its national workers the opportunity of pursuing training provided in another Member State, that opportunity must be extended to Community workers established in its territory ". ( 10 )
18 . Article 7(2 ) is a provision which refers with some precision to a territorial concept, inasmuch as the benefit of equal treatment provided for therein is accorded "in the territory" of a Member State in favour of workers who are nationals of another Member State . As we have seen, the Court has interpreted that concept in a manner which does not preclude an advantage granted by a Member State to its own nationals for the pursuit of education or training outside its own territory from being granted to a Community migrant worker established within that territory . In my view, there is nothing to prevent the territorial concept inherent in Article 12 from being interpreted in the same manner . Hence the need for the fullest possible integration in the society of the host Member State seems to me to entail such an interpretation of that provision . That tallies with the view expressed by Advocate General Sir Gordon Slynn in his Opinion in the Matteucci case when he stated that :
"In my opinion, it is clear that if one Member State arranges for its nationals to undertake courses in another Member State, which if they were held in that Member State would constitute social advantages ( Article 7(2 ) ), training in vocational schools or retraining ( Article 7(3 ) ), or general education, apprenticeships or vocational training courses ( Article 12 ), then those courses, albeit held in another Member State, respectively fall within Articles 7(2 ), 7(3 ) or 12 . They are to be seen as part of the educational system of the State ". ( 11 )
19 . I would point out, moreover, that the corresponding interpretation of Articles 12 and 7(2 ) of Regulation No 1612/68, as advocated by the Commission, seems to be suggested by the Court in one of its most recent judgments . In Echternach and Moritz the Court emphasized the convergence between those two provisions pointing out that
"the Court has ... held that a grant awarded for maintenance and training with a view to the pursuit of secondary or further education is to be regarded as a social advantage within the meaning of Article 7(2 ) of Regulation No 1612/68, to which migrant workers are entitled under the same conditions as nationals",
before adding that
"the same principle must apply to the children of such workers when they are admitted to educational courses in the host country under Article 12 of the regulation since, if interpreted in any other way, that provision would often have no practical effect ". ( 12 )
20 . Therefore, the Court' s concern to rely, for the interpretation of Article 12 of Regulation No 1612/68, on Article 7(2 ) of the same regulation, as is clear from the passages quoted above, seems to me to constitute, having regard to the judgment in Matteucci, a further reason for considering that the equal treatment provided for by the first-mentioned provision for the benefit of the children of migrant workers is not excluded where the host Member State implements for its own nationals measures encouraging the pursuit of courses outside its own territory .
21 . However, it is still necessary to consider whether the condition of residence set out in Article 12 precludes the application of the principle of equal treatment where the child of a migrant worker attends a course outside the host State and, for those purposes, has to stay in the place where the course is provided . The Government of the Federal Republic of Germany and the Netherlands Government consider that the child of a migrant worker who leaves the host Member State in order to live in the country in which the course he has undertaken is provided no longer satisfies the aforesaid condition of residence .
22 . Article 12, I would remind the Court, provides that the host Member State is to ensure that the children of a migrant worker are admitted to educational courses on the same conditions as its own nationals "if such children are residing in its territory ". The Government of the Federal Republic of Germany has pointed out that the German version of Article 12 of Regulation No 1612/68 lays down the more concrete condition of "living", and not residing, in the State . Indeed, in the German text of that provision the condition in question is worded as follows : "Wenn sie im Hoheitsgebiet dieses Mitgliedstaats wohnen", which may be translated as "if they are living in the territory of that Member State ". The Dutch version uses a related wording : "indien zij aldaar woonachtig zijn", literally "if they are living there ". The Italian version is closer to the French version in expressing the condition as follows "se i figli stessi vi resiedono", which is to say "if the children themselves are residing there ". I would point out, however, that in German "wohnen" can mean both "to live" and "to reside" and that in Dutch "woonachtig" may be translated as "living" or "residing ". Hence the use of that expression is ambiguous and it is by no means certain that the German and Dutch versions refer to "living", which is more tangible, as opposed to "residing", which could have a more abstract connotation . I will therefore continue to refer to the condition of "residence" throughout the rest of this Opinion .
23 . That condition seems to be open to a number of interpretations in the case of a child who goes and studies outside the host State and who spends his everyday life in the place where he pursues his studies . That situation produces different results according to whether the student is required actually to reside in the host State for the duration of the course in respect of which he claims equal treatment as regards the conditions of admission, or only as from the time when he takes the decision to pursue that course abroad . In my view, the choice between the two cannot be made without taking account of the overall objective pursued by several provisions of Regulation No 1612/68, including Article 12, namely to promote the integration of the migrant worker' s family in the society of the host Member State . Having regard to the foregoing considerations concerning the undoubtedly adverse effects on the integration of a migrant worker' s child of the refusal by the host State to award for the pursuit of a course abroad a grant which would, in respect of the same period, be awarded to a fellow student who is a national of that State, it seems to me that a condition of residence which led to such a refusal on the ground that the child in question would take his meals, sleep and rest in the place where he was studying, whereas at the same time the grant was maintained in the case of a national of the host country engaged in the same activities in the place where he was studying, would run counter to the objective pursued by Regulation No 1612/68 with a view to the achievement of full freedom of movement for workers .
24 . In my view, therefore, an interpretation to the effect that the condition of residence ceases to be satisfied by a child who goes to study abroad and who lives, while his course is in progress, in the place where the course is provided cannot be upheld, and Article 12 must be regarded as making the benefit of the equal treatment which it envisages conditional on actual residence at the time when the decision is taken to pursue abroad an educational course in respect of which the benefit of that principle is relied upon . Once again I would refer to the view expressed by Sir Gordon Slynn who emphasized, in his aforesaid Opinion in the Matteucci case, with regard to the pursuit of a course outside the host Member State, that :
"the argument that Article 12 cannot apply because the child will no longer be resident in the State is untenable . Residence in the Member State is a condition of acceptance for the course not for its completion ". ( 13 )
25 . Furthermore, it is not inconceivable, as the Commission suggests, that the fact of going to study abroad and, consequently, living in the place where the course is provided, may lead to the student' s loss of residence in the host Member State where his family has remained . On the basis of the concept of residence, as interpreted by the Court in connection with Regulation No 3 concerning social security for migrant workers, ( 14 ) the student may be regarded as having maintained the permanent centre of his interests in the Member State in which his family lives, and for that reason he is still living there . Similarly, I would point out that, for the purposes of the interpretation of the concept of "normal residence" in a Member State, implemented by Council Directive 83/182/EEC of 28 March 1983, ( 15 ) in connection with tax exemption on the temporary importation of motor vehicles, Article 7 of the directive provides that "attendance at a university or school shall not imply transfer of normal residence ". Finally, let me point out, taking a similar line of approach, that, in connection with the right to the expatriation allowance provided for by the Staff Regulations of Officials of the European Communities, the Court took the view that the fact that a Luxembourg national had studied in Strasbourg for a certain period was not incompatible with the maintenance in Luxembourg of the permanent centre of his interests . ( 16 )
26 . However, it is not clear in my view that an interpretation of the concept of residence according to which a student who has gone to study abroad would continue to reside in the host Member State where the permanent centre of his interests is in that State is justified so far as Article 12 of Regulation No 1612/68 is concerned . In fact it would mean referring back to the national court the task of assessing the extent to which the student retains, or otherwise, the permanent centre of his interests in his family' s host State and would thus result in a highly impracticable system . How many times would a student have to travel back and forth between the place where he is pursuing a course and the host State before being regarded as retaining the permanent centre of his interests in that State? Would a distinction have to be drawn according to the length of the periods spent by the student with his family? As we can see, the temptation to reason by analogy with solutions arrived at in other circumstances would involve subtle and, ultimately, highly complex analyses . Hence it is preferable, in my view, for the Court to adhere to the reasoning which I suggested initially and to take account of the actual residence of a migrant worker' s child at the time when he decides to go and study abroad, instead of a more or less fictitious residence in the host State while the course is in progress .
27 . A final point needs to be made in connection with the condition of residence laid down in Article 12 . It seems to me that in their reasoning the Governments of the Federal Republic of Germany and the Netherlands have transposed that condition to a context where it does not belong . The fundamental aim pursued by means of the residence clause would appear to be to prevent the benefit of the equal treatment provided for in Article 12 from being claimed in favour of children who have never gone to live with the migrant worker in the territory of the Member State in which he has settled . That does not have a great deal to do with the application to a student endeavouring to integrate in the society of the Member State to which one of his parents has come to work of treatment less favourable than that accorded to a student who is a national of that State, so far as grants for the pursuit of courses abroad are concerned .
28 . I therefore incline to the view that Article 12 does not exclude from the benefit of the equal treatment provided for therein either the pursuit of a course as such outside the territory of the host Member State or a situation in which the child has gone to live outside that territory for the purpose of studying abroad .
29 . Should it be assumed, however, that the case of a child of a migrant worker who goes to study in the Member State of which he is a national falls outside the scope of Article 12? The national court' s question expressly refers to a situation of that kind . Under the BAFoeG the benefit of the grant for the pursuit of a course abroad has since 1 July 1988 been denied only to students who go and study in the Member State of which they are nationals . Let me point out in that regard that the distinction made by national law is, on the other hand, formally omitted from Article 12, whose scope was defined in connection with a possible territorial limitation and the condition of residence . Article 12, I said earlier, does not exclude either courses pursued outside the territory of the host State or students who have gone to live abroad for study purposes . It does not single out courses pursued in a Member State of which the student is a national .
30 . Hence the distinction referred to by the national court in its question is missing from the wording of Article 12 and, moreover, would not seem to be alluded to by any of its terms . That should be enough to set it aside, since Article 12 is a provision whose incorporation in a regulation which is "binding in its entirety and directly applicable in all Member States" ( 17 ) is undoubtedly covered by the traditional maxim "there is no need to distinguish where the law draws no distinction ".
31 . Let me add, however, that I do not even see any reason for introducing that distinction on grounds of expediency . As I said earlier, it is quite impossible to state as a general rule that a student who has spent more than 20 years with his parents in a Member State of which he is not a national will not encounter, on leaving his host country and his family in order to pursue a course in another State, even if he is a national of that State, difficulties which are least partly comparable to those experienced by a student who is a national of the host country . The Governments of the Federal Republic of Germany and the Netherlands have referred to the abstract image of a student returning to his homeland and immersing himself in its society and culture as if he were entirely at home there . There are also some very well-attested cases of children who were born in a Member State other than that of which they are nationals or moved there when they were very young, received all their schooling there, made friends there with nationals of that State and who only returned to their country of origin for brief periods in order to spend their holidays there .
32 . It is often said that "second generation immigrants" do not feel they belong entirely to their host country or to their country of origin . Quite possibly, when people move from one Member State of the Community to another, that feeling may be less pronounced than when the two communities belong to different continents . However, I cannot go along with the somewhat idyllic image conjured up by the two aforesaid governments . The departure of the child of a migrant worker in order to pursue a course in a country of which he is a national does not always rule out the possibility of his being uprooted from the community he is leaving . Nor does it necessarily mean that the child will find himself in a wholly familiar setting . For that reason, therefore, it is unjustified in my view to introduce in Article 12 an exception to the detriment of children who go and study in a Member State of which they are nationals . In view of the variety of situations which may be encountered in practice and in which varying degrees of difficulty are experienced by the children of migrant workers who go and study in a Member State of which they are nationals, there would seem to be no place for a distinction of the kind to which I have referred in a provision from which, I repeat, it has in fact been omitted .
33 . An additional factor in support of that view is that the pursuit of a course in a country of which he is a national, but where he has not lived except perhaps for short periods, in no way excludes the prospect, from the student' s point of view, of intellectual improvement, which, according to the Federal Republic of Germany, is the aim of a national system of grants for the pursuit of courses abroad such as that established by the BAFoeG . I would point out, in any event, that the award of a grant to the nationals of the Federal Republic in order to go and study medicine abroad, in view of the difficulty or impossibility of gaining admission to medical faculties within national territory on account of the numerus clausus, would seem to correspond to an objective wider then that of cultural enrichment .
34 . Another point is that a student' s departure in order to pursue a course in the State of which he is a national cannot necessarily be regarded as a prelude to subsequently settling within its territory . The student' s return to the host State where he spent his childhood with his family and where his family may still be living, in order to work there, is not at all unlikely . In that regard the grant awarded by the host State in order to pursue a course abroad, even in the State of which the student is a national, may be a significant factor affecting his integration in the first State .
35 . Finally, in view of the risk of overlapping benefits in favour of a student qualifying both for assistance from the host State and for a grant from the State of which he is a national and in which he is pursuing a course, it is worth noting that Regulation No 1612/68 in no way precludes national legislation from taking into account, for the purposes of acquiring entitlement to the grant or of calculating the amount thereof, of a similar benefit actually paid in another Member State . That is illustrated, moreover, by certain provisions of the BAFoeG . Clearly, the rules laid down to that effect by national legislation should be applied in the same manner to students who are nationals of the Member State concerned and to those belonging to the family of a migrant worker established within that State' s territory . A Member State cannot take account of grants paid abroad to the child of a migrant worker who has left his family in order to pursue a course and, at the same time, refrain from taking into consideration the same grants paid to its own nationals who have gone abroad to undertake similar courses . Finally, the mere possibility of individual attempts being made to evade the rules against overlapping benefits, in respect of which the Member States could impose penalties, cannot lead to a restrictive interpretation of Article 12 of Regulation No 1612/68 .
36 . In my view, therefore, the pursuit of an educational course by a student in the Member State of which he is a national does not fall outside the scope of Article 12 .
37 . Before I bring this Opinion to an end, it may well be useful to refer to certain aspects of a more restrictive interpretation of Article 12 than that which I suggest the Court should adopt .
38 . Let me point out, to begin with, that a narrow interpretation of the concept of territory or the condition of residence would lead to different treatment bearing a very close resemblance to discrimination on grounds of nationality . A student who is a national of the host State would also have his de facto residence outside that State for the purposes of pursuing a course abroad, but he would not be deprived, unlike the child of a migrant worker established in that State, of the right to assistance . To allow such discrimination strikes me as particularly unacceptable since, as I said earlier, it seems to run directly counter to the aim of integration .
39 . Next, I should point out that the interpretation suggested by the Governments of the Federal Republic of Germany and the Netherlands would lead to a departure from the thinking behind the judgment in Echternach and Moritz as regards the link between the scope of Article 7(2 ) and that of Article 12 of Regulation No 1612/68 . In adopting an interpretation of Article 12 which, if it diverged from that of Article 7(2 ), would lead to a social advantage in the form of an educational grant being payable by a Member State to a migrant worker established within its territory even though the educational course is provided in another Member State, but not to the worker' s son or daughter because the course in question is provided in another Member State, the Court would undoubtedly betray the spirit by which it was actuated when it gave its ruling in the Echternach and Moritz case . The concern to rely on Article 7(2 ) for the interpretation of Article 12 strikes me as having found expression, very significantly, in paragraph 5 of the operative part of the judgment, which I referred to earlier . ( 18 ) The reference therein to the concept of social advantages manifestly owes more to Article 7(2 ), in which it is expressly mentioned, than to the wording of Article 12, from which it is missing . Hence if the two provisions are examined together, it is possible for the Court, through a combined interpretation, to devise an outline of the answer to the effect that a migrant worker' s child may be regarded as entitled to a grant from the host State to pursue a course abroad if that State awards such a grant to its own nationals . Admittedly, the wording of Article 12 of Regulation No 1612/68 and the condition of residence which it lays down cannot be disregarded, but the fact remains that the general and unconditional nature of the answer envisaged, in response to a question which expressly referred to Article 12, are worth considering . I do not see any possible reason why the Court should take a new approach and adopt henceforth a dissociated interpretation of Article 7(2 ) and Article 12 .
40 . In any event, that reference to Article 7(2 ) prompts me to emphasize that, in the light of the evidence furnished at the hearing, it would seem that at the time when she decided to study medicine in Sienna, Miss di Leo was dependent on her father who at present provides at least in part for her maintenance while she is studying in Italy by giving her the sum of DM 800 per month . In the light of the solutions adopted by the Court in its judgment of 18 June 1987 in Lebon ( 19 ) and in the Matteucci judgment, I consider that the award of a grant to pursue a course abroad, as provided for by the BAFoeG, constitutes for a migrant worker a social advantage within the meaning of Article 7(2 ), in so far as he continues to provide maintenance for a child of his who goes and studies outside the host Member State . Accordingly, if she were denied the direct benefit of equal treatment provided for by Article 12 as a result of a restrictive interpretation of that provision, Miss di Leo would be able to benefit indirectly from the equal treatment provided for by Article 7(2 ) in favour of her father . I would point out, moreover, in reply to an objection by the Federal Government, that a grant or an allowance may constitute a social advantage within the meaning of Article 7(2 ) in favour of migrant workers even if, for the purposes of national legislation, those entitled to it are the children and not the parents . In my view, that was quite clearly decided by the Court in the Lebon judgment .
41 . Ultimately, I am convinced that the decisive factor here is the concept of integration . An interpretation of Article 12 of Regulation No 1612/68 which would mean regarding as consistent with the aim of integration in the society of the host Member State a situation in which a course which a child has gone to pursue outside that State continues to be paid for by a migrant worker established within that State together with his family, when a course of that kind is covered by a public grant awarded by the same State where it is undertaken by its own nationals, would be tantamount to the adoption by the Court of an exceptionally narrow view of integration . That is why I believe the Court should adopt an interpretation of Article 12 which reflects the entire scope of the aim of integrating migrant workers and their families and renders superfluous an approach based on Article 7(2 ). Besides, is not the ultimate rationale of Regulation No 1612/68, in actual fact, a unique concept of integration in the society of the host country, which cannot vary from one provision to another, according to whether the person involved is a worker or a child who has migrated with him?
42 . I therefore suggest that the Court answer the question as follows :
"Article 12 of Regulation ( EEC ) No 1612/68 must be interpreted as meaning that a grant awarded by a Member State for the pursuit of a course abroad is to be regarded as a social advantage to which the children of Community workers are entitled under the same conditions as nationals of that State, without any exception being made in the case of a child who goes to study in the Member State of which he is a national ."
(*) Original language : French .
( 1 ) OJ, English Special Edition 1968 ( II ), p . 475 .
( 2 ) Paragraph 8, subparagraph 1, No 5 of the BAFoeG .
( 3 ) Paragraph 5, subparagraph 2, clause 2 of the BAFoeG .
( 4 ) According to an even more recent amendment of the BAFoeG to which the Federal Republic of Germany referred at the hearing, the grant awarded for the pursuit of a course abroad is now limited to one year .
( 5 ) Joined Cases 389 and 390/87 [1989] ECR 723, paragraph 33 .
( 6 ) Joined Cases 389 and 390/87, cited above, paragraph 36 .
( 7 ) Joined Cases 389 and 390/87, cited above, paragraph 20 .
( 8 ) Paragraph 35 .
( 9 ) Case 235/87 [1988] ECR 5589 .
( 10 ) Paragraph 16 .
( 11 ) Case 235/87 [1988] ECR 5603 .
( 12 ) Joined Cases 389 and 390/87, cited above, paragraph 34 .
( 13 ) Case 235/87 [1988] ECR 5603 .
( 14 ) Judgment in Case 13/73 Angenieux v Hakenberg [1973] ECR 935, paragraphs 23 to 32 and point 3 of the operative part .
( 15 ) Directive on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another ( OJ 1983 L 105, p . 59 ).
( 16 ) Judgment in Case 330/85 Richter v Commission [1986] ECR 3439 .
( 17 ) Second paragraph of Article 189 of the EEC Treaty .
( 18 ) See paragraph 5 of this Opinion .
( 19 ) Case 316/85 [1987] ECR 2811 .
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