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Maria Haag – The Union citizen studying abroad: the “three-out-of-six” rule revisited – Comment on Martens

On the 26th of February 2015, the Court of Justice of the European Union (“CJEU”) decided on a case concerning student grants for Union citizens who do not reside in their home Member State. It follows a line of cases on Union citizenship and the grant of study finance: C-11/06 and C-12/06 Morgan and Bucher, C-523/11 and C-585/11 Prinz and Seeberger, C-220/12 Thiele Meneses and C-275/12 Elrick.

Facts

Ms Martens is a Dutch national, who was born in the Netherlands to Dutch parents. When she was just under the age of 6, she moved to Belgium with her parents, where she received her primary and secondary education. In 2006, after finishing school, she moved to Curaçao to attend university. Her father works in Belgium. Between 2006 and 2008 Ms Martens worked part-time in the Netherlands and became a frontier worker. After this period, she continued working in Belgium. During her studies, Ms Martens depended financially on her parents, who in turn also received a child allowance for her from the Belgian state. In 2008, Ms Martens applied to the Dutch authorities for a study grant. In the application she falsely declared that she had resided in the Netherlands for at least three out of the six years preceding the beginning of her studies (a condition under Dutch law for eligibility for study finance, applicable to nationals and non-nationals alike). Ms Martens was consequently granted the study finance. However, due to a check, the ministry discovered that she had in fact not resided in the Netherlands during the six years preceding the beginning of her studies. Her grant was retracted and she was ordered to repay the money that had already been paid out to her (€19,481.64).

The Court of Justice reformulated the referring questions of the national court in the following way:

Must EU law be interpreted as precluding legislation of a Member State, which makes the continued grant of funding for higher education outside that State subject to the rule that the student applying for such funding has resided in that Member State for a period of at least three out of the six years preceding his or her enrolment?

Decision

The Court held that national legislation of a Member State which makes the continued grant of funding for higher education outside that State subject to the rule that the student has resided in that Member State for a period of at least three out of the six years preceding his or her enrolment is incompatible with Articles 20 and 21 TFEU (para 45).

The Court reconfirmed that as a Union citizen, Ms Martens has the right to rely on that status even against her Member State of origin (para 20). Whilst Member States do not have any obligation under EU law to provide any funding for higher education, if a State does chose to do so, the funding scheme must not “create an unjustified restriction of the rights to move and reside within the territory of the member states” or dissuade a national from using his or her free movement rights (paras 24-26). The Dutch three-out-of-six rule was likely to penalise students who had exercised their free movement rights (para 31).

The Dutch government had argued that this residence rule was justified by a public interest in insuring that recipients of the study grant have a connecting link with the Dutch society and show a certain level of integration (para 35). The Court held that this public interest was justifiable, however argued that the residence requirement was “too exclusive and too arbitrary” (para 43). There are other factors that can determine a genuine link with society and should thus also be taken into account, such as the nationality of the student, his or her schooling, family, employment, language skills, other social and economic factors, but also the employment of family members on whom the student relies on (para 41).

Comment

This is not a very surprising judgment of the Court, instead it is a very textbook decision on free movement rights of students. It closely follows the previous CJEU decisions of Morgan, Prinz, Thiele Meneses etc. and reinforces the importance of mobility of students. In addition, the CJEU already held in 2012 that the “three-out-of-six” rule was indirectly discriminatory and not compatible with the free movement rights of workers (C-542/09 Commission v Netherlands) which made the outcome of this case even more predictable. However, there are two interesting observations to make.

First of all, it is heavily implied in this judgment that the fact that Ms Martens has Dutch nationality and is suing against her Member State of origin should make a difference. Just the fact that she is a Dutch national should be considered when establishing whether she has a genuine link with the society of the Netherlands (para 41). Without a doubt “Ms Martens, a Netherlands national born in the Netherlands” (para 44) has a connecting link to the Netherlands, which can also establish a link with its society. This case thus shows that the Court recognises that there is a fundamental link between a Member State and its nationals, which should always be taken into account in these cases.

Secondly, this decision is based solely on Ms Martens’ — the student’s — Union citizenship and free movement rights and not on her father’s (Mr Martens) — the worker’s — rights. Thus this decision is based on Article 20 and 21 and not on Article 45 TFEU. This is remarkable because the Opinion of Advocate General Sharpston has the opposite focus. In her Opinion, it is the right to free movement of workers which precluded the legislation in the Netherlands:

“Where a frontier worker ends his employment in the Netherlands and exercises his freedom of movement for workers in order to take up full-time employment in another Member State, … Article 45 precludes the Netherlands from applying measures which … have the effect of discouraging such a worker from exercising his rights under Article 45 TFEU and causing him to lose … social advantages guaranteed them by Netherlands legislation, such as portable study finance for his dependent child” (AG Opinion, para 103).

The shift in focus is obvious: it is not the student’s right to financial assistance, but the worker’s right to receive financial assistance for his or her dependent child.

Incidentally, this focus on the worker’s rights is much more in line with the referring court’s questions, but also with the previous ruling of the CJEU in C-542/09 Commission v Netherlands, where it decided that this three-out-of-six rule breaches EU law, more specifically Article 45 and Article 7(2) of Regulation No 1612/68 on the grounds of being indirectly discriminatory on the bias of nationality against migrant and frontier workers and their dependent family members (Commission v Netherlands, para 38). In that decision the Court did not consider the case of the Dutch national frontier worker. However, Sharpston argues that the equal treatment standard in Article 7(2) of Regulation No 1612/68 is wider than the principle of non-discrimination based on nationality, and also includes the protection of national workers who have exercised their free movement rights (AG Opinion, paras 70 & 73)

Paragraph 99 of the Opinion should also be highlighted where Advocate General Sharpston says, ”I do not think that it is necessary for the Court to answer the […] question regarding EU citizenship. Articles 20 and 21(1) TFEU find specific expression in Article 45 TFEU as regards the freedom of movement of workers”, and further, ”I consider the existing case law provides necessary elements for offering guidance to the referring court”.

Both the Court and the Advocate General arrive at the same outcome in this case, however they come from completely different perspectives. The Court does not discuss, nor mention Mr Martens’ worker’s rights. In the Court’s decision, the freedom to move and receive study finance is not a perk that the worker has, but is the right of the student, of the Union citizen. Ms Martens is given the right solely on the basis of having made use of the rights conferred on her by her status as a Union citizen, a non-economically active one for that matter.

Maria Haag

LLM Candidate, European University Institute

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