Casagrande v. Landeshauptstadt Munich (Case 9/74) Before the Court of Justice of the European Communities ECJ ( The President, Judge R. Lecourt; Judges A. M. Donner, M. Sorensen, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó. Dálaigh and Lord Mackenzie Stuart). Mr. Jean-Pierre Warner, Advocate General. 3 July 1974 Reference under Article 177 By the Bavarian Administrative Court (Bayerisches Verwaltungsgericht), Munich. European Court of Justice. Procedure. Reference under Article 177. While, in proceedings under Article 177, the European Court of Justice cannot rule on the construction or validity of national legal rules, it is nonetheless empowered to construe provisions in EEC regulations and in the process to conclude whether such provisions apply to such measures as those taken by the authorities of a member-State. [2] Discrimination. Nationality. Education. In providing that the children of a citizen of a member-State who is or has been employed in the sovereign territory of another member-State can participate in education 'on the same terms as the citizens' of the host country, Article 12 of EEC Regulation 1612/68 has in mind not only the conditions for admission to, but also the general measures designed to facilitate participation in, education. [4] Constitutional law. Community law and national law. Division of legislative power. Federal devolution. Powers transferred from member-States to the Community under the EEC Treaty may (semble, so long as they are in pith and substance exercised within the

fields for which the transfer was made) affect national measures in fields outside the specific ambit of the Treaties, such as education. Community measures which are in exercise of such powers and which are directly applicable in the member-States have such effect whether the national measures are those of the federal government or of the organs of a constituent state of a federal state or of other territorial bodies or those of organs which are placed on a footing of equality with the former under national law. [6] *424 The Court, giving a preliminary ruling on a question of interpretation of Article 12 of EEC Regulation 1612/68 referred to it under Article 177 by the Bavarian Administrative Court, Munich, held that the equality of educational opportunity laid down for children of migrant workers in that Article is of general import and not restricted purely to admission to educational establishments. Representation Herr Walter for the Staatsanwaltschaft beim Bayerischen Verwaltungsgericht Munich. Rechtsanwalt Del Vecchio for the plaintiff. RechtsanwaltGoltz for the defendant. Giorgio Zagara, sostituto avvocato generale dello Stato, instructed by Ambassador Adolfo Maresca, for the Italian Government as amicus curiae. Peter Karpenstein, Legal Adviser to the E.C. Commission, for the E.C. Commission as amicus curiae. The following case was referred to by the Advocate General in his submissions: 1. Michel S. v. Fonds National de Reclassement Social des Handicapes (76/72), 11 April 1973: [1973] E.C.R. 457. The following additional cases were referred to in argument: 2. Württembergische Milchverwertung--Sudmilch AG v. Ugliola (15/69), 15 October 1969: 15 Recueil 363. 3. Marsman v. FA M. Rosskamp (44/72), 13 December 1972: [1973] C.M.L.R. 501, 18 Recueil 1243. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts The plaintiff in the original proceedings was an Italian citizen, born in 1953 of Italian parents, the father being an Italian 'guest-worker', and had lived in Munich since his birth. Having in the school year 1971-72 attended Class 10 of a Realschule in Munich up to 30 April 1972, the plaintiff applied to the municipal authority, the defendant in the original proceedings, for a grant in respect of this attendance under the Bayerisches Ausbildungsförderungsgesetz. [FN1] Section

2 of this Act provides for educational grants of up to 70 DM per month for pupils of insufficient means attending Classes 5-10 of general secondary schools. The defendant refused to accord the grant, invoking section 3 of the Act, which restricts the grant to the following categories of persons: 1. Germans within the meaning of the Constitution [FN2]; *425 2. stateless aliens within the meaning of the Gesetz über die Rechtsstellung heimatloser Ausländer im Bundesgebiet, [FN3] of 25 April 1951, [FN4] as last amended by the Act of 9 September 1965 [FN5]; 3. aliens having their usual place of residence within the sphere of applicability of this Act and recognised as persons entitled to asylum under section 28 of the Ausländergesetz, [FN6] of 28 April 1965, [FN7] as last amended by the Act of 23 June 1970. [FN8] FN1 Bavarian Promotion of Education Act: BayAföG. FN2 Grundgesetz. FN3 Act on the Legal Position of Stateless Aliens on Federal Territory. FN4 [1951] I BGB1.269. FN5 [1965] I BGB1.1273. FN6 Aliens Act. FN7 [1965] I BGB1.353. FN8 [1970] I BGB1.805. On 14 December 1973, the Bayerisches Verwaltungsgericht stayed the plaintiff's action brought to recover the grant claimed from the municipal authority and referred to the European Court of Justice under Article 177 of the Treaty the question of 'whether section 3 (2) and (3) of the Gesetz zur Ergänzung des Bundesgesetzes über indivividuelle Förderung der Ausbildung (Bayerisches Ausbildungsförderungsgesetz -- BayAföG ), [FN9] in the version promulgated on 5 December 1972, [FN10] is compatible with Article 12 (1) of EEC Council Regulation 1612/68, of 15 October 1968, dealing with the free movement of labour within the Community'. FN9 Law complementing the Federal Law on Individual Promotion of Education (Bavarian Law for the Promotion of Education). FN10 [1973] GVB1.3. Written submissions under Article 20 of the Statute of the European Court of Justice were made by the Staatsanwaltschaft beim Bayerischen

Verwaltungsgericht München, by the plaintiff in the original proceedings, by the Government of the Italian Republic and by the E. C. Commission. Submissions of the Advocate General (Mr. Jean-Pierre Warner) On 15 October 1968 the Council, in exercise of the power conferred on it by Article 49 of the EEC Treaty to 'make regulations setting out the measures required to bring about, by progressive stages, freedom of movement for workers', adopted Regulation 1612/68. The preamble to that regulation recites among other things that 'freedom of movement constitutes a fundamental right of workers and their families' and that 'the right of freedom of movement, in order that it may be exercised, by obective 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'. Provisions about workers' families are contained in Articles 10 to *426 12 of the regulation and it is with Article 12 that the Court is particularly concerned in the present case. That Article is in the following terms: '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. Member-States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.' It is not difficult to see that the requirement of the first paragraph of that Article that the children of a migrant worker are to be admitted to the host State's educational courses 'under the same conditions' as nationals of that State is intended to secure the 'integration' that the preamble envisages. Nor is it difficult to detect from the second paragraph of the Article a broad intention on the part of the authors of the regulation that in the field of education (as in other fields covered by other Articles) everything possible should be done to facilitate that integration. The present case, which comes to the Court by way of a reference for a preliminary ruling by the Verwaltungsgericht of Munich, is concerned with the compatibility with section 12 [FN11] of a Bavarian statute which contains an element of discrimination in the matter of educational grants. This statute, the Bayerische Ausbildungsförderungsgesetz (referred to for short as the BayAföG), is described in its title as 'supplementing the Federal statute on individual educational grants'. It provides for grants to be made in certain circumstances in which Federal grants are not available. In particular it provides for grants to be made to children in the 5th to 10th forms, whereas Federal grants are available only in higher forms. Section 1 of the BayAföG provides that grants are to be made thereunder to those whose means would otherwise be insufficient for their maintenance and education. Section 3, however, confines the benefit of the

grants to German nationals, stateless persons and aliens who have been given political asylum. The Verwaltungsgericht, in its order for reference, makes no secret of its view that this element of discrimination is incompatible with Article 12. FN11 The Advocate General uses the word 'Article' as is the usual custom in referring to parts of continental statutes. We have, however, adopted as a house rule the use of the term 'section' for national statutes and codes, retaining 'Article' for international instruments (e.g. treaties), EEC legislation and national constitutions only.--Ed. The plaintiff in the proceedings before the Verwaltungsgericht is an Italian national, the son of Italian parents. He was born on 29 December 1953 and has lived since his birth in Munich, where his father, who died on 24 January 1971, was employed. For the school year 1971-72, until 30 April 1972, the plaintiff attended school in Munich in the 10th form. He claimed a grant under the BayAföG for *427 the period of his attendance. This was refused on the ground that he did not come within any of the categories of persons mentioned in section 3 of that statute. It was stated on his behalf at the hearing that it was because of this refusal that he had had to leave school. The question formally put to this Court by the Verwaltungsgericht in its order for reference is simply whether section 3 of the BayAföG is compatible with the first paragraph of Article 12. My Lords, it is well established that this Court cannot answer directly a question formulated in that way, for it has no jurisdiction, under Article 177, to rule on the validity of a provision of national law. This does not mean that the reference is inadmissible, but that the Court must distil from the question put the pure question of Community law to which it gives rise, rule on that, and then leave it to the national Court to apply that ruling to the specific case before it. Many authorities illustrate this. Some are referred to in the observations of the Commission. I confine myself to citing Case 76/72 Michel S. v. Fonds National de Reclassement Social des Handicapés, [FN12] an authority which bears on the present case in other ways too. FN12 [1973] E.C.R. 457. Fortunately it is not difficult in this case to ascertain what is the question of Community law that arises. It is apparent both from the reasons set forth in the Verwaltungsgericht's order and from the submissions, written and oral, that have been made to this Court. The question is whether the first paragraph of Article 12 relates only to actual access of the children of migrant workers to schools and other education establishments in the host State or is to be interpreted more broadly as relating to all advantages afforded by the host State to its nationals in the educational field, including educational grants. Logically, as the Commission has pointed out, the question also arises whether that paragraph, whatever its interpretation, has direct effect in the legal systems

of member-States, so as to confer rights on the children of migrant workers themselves, which they can enforce in the national courts. There can, however, in my opinion, be no doubt that the answer to that question is in the affirmative. So much indeed is implicit in the judgment of the Court in the Michel S. case. I think it right, in view of some of the submissions that have been made, to emphasise that, to my mind, the question for the Court in this case is one of interpretation of the first paragraph of Article 12. The second paragraph of that Article does not seem to me to be in point, except in so far as, in common with other provisions of Regulation 1612/68, not least the preamble, it manifests the general intention of the authors of the regulation that, as I have already expressed it, everything possible should be done to facilitate the integration of the families of migrant workers, and in particular of their children, *428 into their host country. Specifically, the second paragraph seems to me to relate to the encouragement by member-States of efforts towards this made or to be made by others, such as individuals or charitable institutions, rather than to what is to be done by state organs themselves--and in this context I use the expression 'state organs' to denote all organs of government, whether national or local, for I do not overlook that the defendant in the present case is the City of Munich or that the statute in question is a Bavarian one. I turn then to the essential question in the case, the question as to the scope of the first paragraph of Article 12. There can be no doubt of its importance. Its importance from Bavaria's point of view was emphasised at the hearing by Counsel representing the Staatsanwaltschaft attached to the Verwaltungsgericht of Munich. Although the claim of the plaintiff himself is for a relatively small sum, it seems that there are in Bavaria so many children of migrant workers in the same or in a similar position that a decision in his favour would entail for that state expenditure running into millions of DM. The Court was also told that, in the Federal Republic, the fields of education and cultural policy are particularly reserved to the Länder--those fields were described to us as almost the last in which the Länder retained any independence--so that any encroachment on them by Community law was regarded with some sensitivity. But the impact of your Lordships' decision in this case will not be limited to Bavaria. The first paragraph of Article 12 requires the children of migrant workers to be assimilated to the nationals of the host State 'if such children are residing in its territory'. The Court was told, on behalf of the Commission, that, whilst such assimilation already obtains, in the matter of educational grants, in some member-States, e.g. Italy, this is far from being the position in others. Thus, in Germany, Federal grants are only payable for an alien child if he has resided in the Federal Republic for a qualifying period of five years or if one of his parents has resided there for at least three years. In Belgium there is a similar qualifying period of five years and, in addition, a requirement of reciprocity: the law of the child's own country must accord the same benefits to Belgian children. In France, so it appears, there is no discrimination at the level of primary and secondary education, but there is discrimination at the level of University and other higher education. Although the Commission does not claim yet to have made an

exhaustive survey covering every member-State, it makes no secret of the fact that it is awaiting your Lordships' decision in this case with deep interest: if that decision is in favour of the wider interpretation of the first paragraph of Article 12, it proposes to initiate steps to secure compliance with it by all member-States. What then is the proper interpretation of that paragraph? The City of Munich and the Staatsanwaltschaft contend for the narrower *429 interpretation; the plaintiff, the Italian Republic and the Commission for the wider one. For my part, my Lords, I would adopt the wider one. The main argument put forward on behalf of the Staatsanwaltschaft and of the City of Munich consists in saying that educational and cultural matters are not as such within the scope of the EEC Treaty, which is essentially concerned with economic matters, and that the power of the Council under Article 49 of the Treaty cannot therefore extend to legislating about educational grants. But, my Lords, no one suggests that the power of the Council under Article 49 is a power to legislate about educational matters as such. It is a power to legislate for the freedom of movement of workers, which includes power to legislate about the education of their children. Indeed the Staatsanwaltschaft and the City of Munich recognised this, for they did not contend that Article 12 was invalid. There was moreover, I think, an inconsistency in the argument as they put it forward because they coupled with it a submission that educational grants were among the matters falling within the second paragraph of Article 12 (which, they submitted, did not have direct effect). It was also argued on behalf of the Staatsanwaltschaft and of the City of Munich that the words themselves of the first paragraph were not apt to cover more than free access to educational establishments. My Lords, in my view, those words point, on the contrary, to the first paragraph having a wide scope. They require the children of migrant workers to be admitted to the host State's educational courses 'under the same conditions' as nationals of that State. What can this mean unless it be that those children are to be accorded all the same rights in relation to such courses as children who are nationals of the host State? The very idea of admission under the same conditions must include, it seems to me, admission on the same financial terms, whether these involve the payment of fees or the receipt of grants. It seems to me also that to adopt the narrower interpretation would be inconsistent with the spirit of Regulation 1612/68 in general and of Article 12 in particular. As I have, I think, shown, their purpose, so far as material, is the integration of the family of a migrant worker into the host country. This involves among other things equality of treatment, non-discrimination, between the children of that worker and the children of his fellow workers who are nationals of that country. As was said by Mayras A. G. in the Michel S. case, [FN13] it involves equality of opportunity as between those children. There can be no such equality of opportunity if one child is enabled or encouraged to stay at school or at university by means of a grant whilst the other is not. FN13 [1973] E.C.R. at p. 471.

Lastly, it seems to me that to adopt that narrow interpretation would be inconsistent with the decision of the Court in the Michel S. case; first because that decision was manifestly based on the view that *430 the first paragraph of Article 12 was to be interpreted broadly, and secondly because the decision involved the rejection of any distinction in that paragraph between benefits in kind and benefits in money--consider the facts of the case as set out by Mayras A.G. [FN14] FN14 Ibid. at p. 466. Another argument was put forward on behalf of the Staatsanwaltschaft at the hearing, which had not been foreshadowed in its written Observations. This argument was based on the fact that the BayAföG applies only in Bavaria. Residents of other Länder cannot claim the benefit of it and, in some at least of those Länder, a person in the position of the plaintiff could claim no grant even were he a German national. So, the argument ran, as I understood it, the benefits flowing from the BayAföG are not benefits conferred by a member-State and are, for that reason alone, outside the scope of the first paragraph of Article 12. My Lords, acceptance of this argument could have strange consequences. In some countries, England for instance, educational grants are in the main awarded by local authorities under provisions that are either wholly discretionary or partly mandatory and partly discretionary. Would a child of a migrant worker, so far as Community law was concerned, accordingly be entitled in such a country to no grant at all, or only to such grant as was mandatory, or to such grant as would be awarded to him by the least generous of that country's local authorities? Nor do the difficulties end there. Thus, the legislation governing education, and in particular that governing educational grants, is different in England and in Scotland. The argument could thus entail that the child of a migrant worker could claim no rights under Community law anywhere in the United Kingdom because there is no relevant legislation applicable throughout that member-State. My Lords, the rights of children of migrant workers under Community law cannot depend upon the extent to which, or the manner in which, within a member-State, responsibility for education is divided between the central Government and local authorities. No more can they depend upon whether that member-State has a federal or a unitary constitution or something in between. In my opinion, the first paragraph of Article 12 must be interpreted as meaning that, whatever the internal structure of a member-State, the children of a migrant worker residing anywhere in its territory are entitled to the same advantages as are afforded to nationals of that State in that part of its territory. I am therefore of the opinion that the question referred to the Court by the Verwaltungsgericht of Munich should be answered as follows:-'The first paragraph of Article 12 of Regulation 1612/68 of the Council extends to the children of a national of a member-State who is or has been employed in the territory of another member-State the right, if such children are residing in any part of the *431 territory of the latter State, to all the same educational advantages, including grants, as are afforded to nationals of that State in that

part of its territory.' JUDGMENT (Drafting judge, Donner J.) [1] By a decision dated 14 December 1973, which reached the Court Registry on 11 February 1974, the Bayerisches Verwaltungsgericht München referred for a preliminary ruling under Article 177 of the EEC Treaty a question on the construction of Article 12 of EEC Council Regulation 1612/68, of 15 October 1968, dealing with the free movement of labour inside the Community. According to the decision to refer, the plaintiff in the original proceedings, an Italian citizen and child of an Italian worker who was employed in the Federal Republic of Germany, attended a Realschule in Munich in the school year 1971-72 and now claims from the City of Munich, the defendant in the original proceedings, an educational grant under section 2 of the Bayerisches Ausbildungsförderungsgesetz in the sum of 70 DM per month. Since the defendant in the original proceedings refused this grant on the grounds that section 3 of this Act relates only to Germans and to stateless aliens and aliens entitled to asylum, the question is asked whether this section 3 is compatible with Article 12 (1) of Regulation 1612/68. [2] While, in proceedings under Article 177, the Court cannot rule on the construction or validity of national rules of law, it is nonetheless empowered to construe Article 12 of Regulation 1612/68 and in the process to conclude whether that Article does or does not apply to the application of promotion measures such as those in the present case. [3] According to this Article, 'the children of a citizen of a member-State who is employed or has been employed on the sovereign territory of another memberState [can], ... if they reside in the sovereign territory of the latter member-State, participate in general education and in apprenticeship and professional training on the same terms as the citizens of the latter member-State'. At the same time, the member-States are under a duty to promote the ' efforts by which these children are to be enabled to participate in education on the best terms'. According to its fifth point of motivation, the regulation was issued, inter alia, for the following reason: 'In order that the right to free movement can be observed according to objective standards of freedom and human dignity, ... all obstacles must be removed which stand in the way of the mobility of labour, in particular in relation to the right of the worker to have his family join him, and to the conditions for the integration of his family in the host-country.' [4] This integration presupposes that the privileges provided for by the rules of law of the host-country for promotion of education *432 are open to the child of a foreign worker who wishes to attend a secondary school on the same terms as to native-born children in the same position. The rule of Article 12 (2) under which the member-States promote the efforts by which these children are to be enabled to participate in education on the best terms makes it clear that this Article aims to promote special endeavours, so that these children, on the basis of equal rights, can benefit from education and from the available opportunities for

training. When, in consequence, Article 12 provides that the children in question can participate in education 'on the same terms as the citizens' of the hostcountry, it has in mind not only the conditions of admission, but also the general measures designed to facilitate participation in education. [5] The Staatsanwaltschaft beim Verwaltungsgericht, which is involved in the original proceedings, has additionally argued that educational policy is a matter for the member-States. It says that, since in the Federal Republic of Germany this policy for the most part falls within the sphere of competence of the Länder, the question arises whether Article 12 applies not only to the conditions set up by the law made by the central power, but equally to conditions which derive their validity from measures of the organs of the constituent state of a federal state or of other territorial bodies. [6] It is true that educational policy does not as such belong to the matters which the Treaty has placed within the jurisdiction of the Community organs. But it does not follow from this that the exercise of the powers transferred to the Community is in any way restricted if it is capable of affecting measures which have been taken for the implementation of, say, educational policy. Inter alia, Chapters 1 and 2 of Title III in the Second Part of the Treaty contain several rules, the application of which can in appropriate cases affect that policy. So even if it is the duty of the organs competent under national law to lay down the conditions referred to in Article 12 of Regulation 1612/68, these conditions must nonetheless be applied without discrimination between the children of nativeborn workers and those of the workers of another member-State residing in the country. Since, moreover, under Article 189 of the Treaty, regulations possess general validity, are binding in all their parts and apply directly in every memberState, it does not matter whether the conditions in question are laid down by rules of the central power, of the organs of a constituent state of a federal state or of other territorial bodies or by rules of organs which are placed on a footing of equality with the former under national law. Costs [7] The costs incurred by the E.C. Commission, which made submissions to the Court, are not eligible for reimbursement. For the parties in the original proceedings, the proceedings before the Court are an interlocutory dispute in the action proceeding before the *433 national court. The decision on costs is therefore a matter for the latter court. Order THE COURT, for these reasons, giving judgment on the question referred to it by the Bayerisches Verwaltungsgericht München in accordance with the latter's decision dated 14 December 1973, HEREBY DECLARES: In providing that the children of a citizen of a member-State who is employed or has been employed in the sovereign territory of another member-State can

participate in education 'on the same terms as the citizens' of the host country, Article 12 of Regulation 1612/68 has in mind not only the conditions for admission, but also the general measures designed to facilitate participation in education. (c) Sweet & Maxwell Limited [1974] 2 C.M.L.R. 423 END OF DOCUMENT