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Document 62015CC0238

Opinion of Advocate General Wathelet delivered on 2 June 2016.

Digital reports (Court Reports - general)

ECLI identifier: ECLI:EU:C:2016:389

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 2 June 2016 ( 1 )

Case C‑238/15

Maria do Céu Bragança Linares Verruga,

Jacinto Manuel Sousa Verruga,

André Angelo Linares Verruga

v

Ministre de l’Enseignement supérieur et de la Recherche

(Request for a preliminary ruling from the tribunal administratif du Grand-Duché de Luxembourg (Administrative Court of the Grand Duchy of Luxembourg))

‛Reference for a preliminary ruling — Freedom of movement of persons — Equal treatment — Social advantages — Regulation (EU) No 492/2011 — Article 7(2) — Financial aid for higher education studies — Condition — Continuous period of work — Indirect discrimination — Justifications’

I – Introduction: preliminary observation on a paradox

1.

Financial aid for higher education studies and the conditions for granting it have already been the subject of extensive case-law. That subject is, once again, the focus of this request for a preliminary ruling.

2.

The question referred for a preliminary ruling by the tribunal administratif (Administrative Court) of the Grand Duchy of Luxembourg relates to the compatibility of national legislation which makes the grant of financial aid for higher education studies to students not residing in the territory of the Member State concerned subject to the condition that they are the children of workers who have been employed or have pursued a professional activity in that Member State during a continuous period of at least five years at the time the application for financial aid is made.

3.

In a world which is becoming more and more competitive, the training of young people is a priority for the European Union and the Member States. ( 2 ) In a world in which the dominant economic model is proving to have its limits, budgetary constraint has become a daily reality.

4.

Since the beginning of the ‘European project’, freedom of movement has been one of the fundamental freedoms. Its importance was then further heightened with the recognition, then the development, of a European citizenship which clearly benefits students.

5.

That freedom of movement is today being called in question and put under pressure. The regulations concerning the grant of financial aid for higher education studies are a further illustration of this. Between, on the one hand, the maintenance of the recognition of a high degree of equality likely to lead to a reduction in the amounts granted to each recipient and, on the other hand, the erosion of that equality linked to the possibility of retaining substantial aid in favour of apprenticeship and training of a smaller number of citizens, what, today, are the requirements of Union law?

6.

This, then, is the question which is being asked.

II – Legal framework

A – Union law

1. Regulation (EU) No 492/2011

7.

In its request for a preliminary ruling, the referring court is seeking the interpretation of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, ( 3 ) as amended by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. ( 4 )

8.

However, that regulation was repealed and replaced, with effect from 15 June 2011, by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union. ( 5 )

9.

Under the second paragraph of Article 41 of the latter regulation, references to Regulation No 1612/68 are to be construed as references to Regulation No 492/2011. More specifically, I note that Article 7(1) and (2) has not been amended. I shall therefore refer only to Regulation No 492/2011.

10.

Article 7 of that regulation provides as follows:

‘1.   A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.

2.   He shall enjoy the same social and tax advantages as national workers.

…’

2. Directive 2004/38

11.

Under Article 24 of Directive 2004/38:

‘1.   Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

2.   By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.’

B – Luxembourg law

12.

The Law of 22 June 2000 on State financial aid for higher education studies was amended by a Law of 26 July 2010 (Mémorial A 2010, p. 2040) (‘the Law of 22 June 2000’). Article 2 of the Law of 22 June 2000 provided as follows:

‘Persons entitled to financial aid

A student admitted to higher education studies shall be entitled to receive financial aid from the State for higher education studies where he or she satisfies one of the following conditions:

(a)

he or she is a Luxembourg national or a member of the family of a Luxembourg national and is domiciled in the Grand Duchy of Luxembourg, or

(b)

he or she is a national of another Member State of the European Union or of one of the other States which is a party to the Agreement on the European Economic Area[, of 2 May 1992 (OJ 1994 L 1, p 3,] or of the Swiss Confederation and resides, in accordance with Chapter 2 of the amended Law of 29 August 2008 on the free movement of persons and on immigration, in the Grand Duchy of Luxembourg as an employed person, a self-employed person, a person who retains that status, or a family member of one of the categories of persons above, or as a person who has acquired the right of permanent residence …

…’

13.

Following the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), Article 1(1) of the Law of 19 July 2013 (Mémorial A 2013, p. 3214) inserted into the Law of 22 June 2000 an Article 2 bis worded as follows:

‘A student not residing in the Grand Duchy of Luxembourg may also receive financial aid for higher education studies where that student is the child of an employed or self-employed person who is a Luxembourg national or a national of the European Union or of another State party to the Agreement on the European Economic Area or of the Swiss Confederation, is employed or pursuing an activity in Luxembourg, and has been employed or has pursued an activity in Luxembourg for a continuous period of at least five years at the time the student makes the application for financial aid for higher education studies. Employment in Luxembourg must be for at least half the normal working hours applicable within the undertaking, under statute or by virtue of any collective labour agreement that may be in force. A self-employed worker is required to have been affiliated to the social security system in the Grand Duchy of Luxembourg under Article 1(4) of the Social Security Code for a continuous period of five years prior to the application for financial aid for higher education studies.’

14.

The law of 22 June 2000, as amended by the Law of 19 June 2013, was, however, soon repealed by the Law of 24 July 2014 on State financial aid for higher education studies (Mémorial A 2014, p. 2188).

15.

Article 3 of the latter law now provides as follows:

‘A student or pupil, as defined in Article 2, hereinafter referred to as a “student”, who fulfils one of the following conditions may benefit from State financial aid for higher education studies:

(5)

a student not residing in the Grand Duchy of Luxembourg who:

(a)

is a worker and a Luxembourg national or a national of the European Union or of another State party to the Agreement on the European Economic Area or of the Swiss Confederation, employed or pursuing an activity in the Grand Duchy of Luxembourg at the time when the application for financial aid for higher education studies is made; or

(b)

is the child of a worker who is a Luxembourg national or a national of the European Union or of another State party to the Agreement on the European Economic Area or of the Swiss Confederation employed or pursuing an activity in the Grand Duchy of Luxembourg at the time when the student’s application for financial aid for higher education studies is made, provided that the worker is continuing to contribute to the maintenance of the student and the worker has been employed or has pursued an activity in the Grand Duchy of Luxembourg for at least five years at the time of the student’s application for financial aid for higher education studies, within a reference period of seven years counting back from the date of the application for financial aid for higher education or, by way of derogation, the person retaining worker status met the aforementioned criterion of five years out of seven when he or she finished work.’

III – Facts in the main proceedings

16.

Mr André Angelo Linares Verruga resides with his parents, Mrs Maria do Céu Bragança Linares Verruga and Mr Jacinto Manuel Sousa Verruga, in Longwy (France).

17.

Mrs Bragança Linares Verruga has been employed in the Grand Duchy of Luxembourg since 15 May 2004 with a single break for the period between 1 November 2011 and 15 January 2012. For his part, Mr Sousa Verruga was employed in that Member State between 1 April 2004 and 30 September 2011 and between 4 December 2013 and 6 January 2014. Since 1 February 2014 he has worked there as a self-employed person.

18.

Mr Linares Verruga, a student enrolled in the University of Liège (Belgium), applied to the Luxembourg State for financial aid for higher education studies for the winter semester of the 2013/2014 university year.

19.

By decision of 28th November 2013, the Minister refused to grant that application for financial aid on the ground that the conditions laid down in Article 2 bis of the Law of 22 June 2000, as amended by the Law of 19 July 2013, were not satisfied.

20.

On 23 December 2013, Mr Linares Verruga and his parents (‘the Verruga family’) brought an administrative appeal against that decision. By decision of 14 January 2014, the Minister dismissed that appeal.

21.

Mr Linares Verruga also applied to the Luxembourg State for financial aid for higher education studies for the summer semester of the 2013/2014 university year. By decision of 24 March 2014, the Minister refused to grant that application for financial aid on grounds identical to those set out in his decision of 28 November 2013.

22.

On 15 April 2014, the Verruga family brought an action before the tribunal administratif (Administrative Court) of the Grand Duchy of Luxembourg seeking alteration or annulment of the Minister’s decisions of 28 November 2013, 14 January 2014 and 24 March 2014. That action was held to be admissible in so far as it seeks the annulment of those decisions.

23.

Before that court, the Verruga family have claimed that financial aid from the State for higher education studies is a family benefit within the meaning of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, ( 6 ) as amended by Commission Regulation (EU) No 1244/2010 of 9 December 2010, ( 7 ) to which every worker is entitled. In the alternative, the Verruga family submit that that aid is a social advantage within the meaning of Article 7(2) of Regulation No 492/2011, so that the grant of the aid is subject to the principle of equal treatment set out in that provision.

IV – Request for a preliminary ruling and procedure before the Court

24.

On the basis of the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), the tribunal administratif (Administrative Court) of the Grand Duchy of Luxembourg starts by assuming that, in so far as study finance granted by a Member State to the children of workers constitutes, for a migrant worker, a social advantage within the meaning of Article 7(2) of Regulation No 492/2011, that provision is applicable to the dispute in the main proceedings.

25.

In that context, the referring court is unsure whether the condition laid down in Article 2 bis of the Law of 22 June 2000, as amended by the Law of 19 July 2013, which requires that a student applying for financial aid for higher education studies who does not reside in Luxembourg be the child of an employed or self-employed person who is a Luxembourg national or a national of the European Union and which makes the grant of that aid conditional on the fact that that worker has been employed or has pursued an activity in Luxembourg for a continuous period of at least five years at the time the application for aid is made, is excessive.

26.

By decision of 20 May 2015, received at the Court on 22 May 2015, the tribunal administratif (Administrative Court) of the Grand Duchy of Luxembourg therefore decided to stay the proceedings and, pursuant to Article 267 TFEU, to refer the following question to the Court for a preliminary ruling:

27.

Written observations were submitted by the Verruga family, the Luxembourg and Danish Governments and the European Commission. They all also presented oral argument at the hearing on 14 April 2016. The Norwegian Government, which had not submitted written observations, also presented its arguments at that hearing.

V – Assessment

A – The development of the case-law: has freedom of movement for the ‘worker ’ become a chimera?

1. The distinction between ‘workers’ and ‘non-active persons’

28.

Freedom of movement for workers is guaranteed by Article 45 TFEU. Such freedom is to entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. ( 8 )

29.

The concept of ‘worker’ within the meaning of Article 45 TFEU is defined in the settled case-law of the Court. ‘Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a “worker”. The central feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’. ( 9 )

30.

According to the Court, Article 7(2) of Regulation No 492/2011 is only ‘the particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article 45(2) TFEU’, ( 10 ) and applies equally to frontier workers.

31.

A contrary interpretation would disregard the wording of Regulation No 492/2011 since recital 5 thereof expressly states that the right to freedom of movement must be enjoyed ‘without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services’ ( 11 ) and Article 7 thereof refers, without reservation, to ‘a worker who is a national of a Member State’. ( 12 )

32.

The Court has concluded that a Member State ‘may not make payment of a social advantage within the meaning of Article 7(2) of Regulation [No 492/2011] dependent on the condition that recipients be resident within its territory’. ( 13 )

33.

Making the grant of a social advantage conditional on completion of a minimum period of occupational activity has also been unequivocally rejected by the Court owing to the ‘Community’ meaning of the concept of ‘worker’. According to that line of authority, established in particular in relation to aid for maintenance and training with a view to the pursuit of higher education studies, Member States ‘cannot … unilaterally make a grant of the social advantages contemplated in Article 7(2) of Regulation [No 492/2011] conditional upon the completion of a given period of occupational activity’. ( 14 )

34.

Case-law specific to the nationals of the Member States who exercise their freedom of movement without being economically active has developed in parallel. The Court has acknowledged that States may require a certain level of integration into the host Member State to be demonstrated before granting the person in question social advantages, ( 15 ) inter alia, in the judgments of 11 July 2002, D’Hoop (C‑224/98, EU:C:2002:432), and of 15 March 2005, Bidar (C‑209/03, EU:C:2005:169). That link could be demonstrated by an (earlier) genuine link with the employment market of the host Member State or by a period of residence in that State.

35.

There was therefore a clear and specific difference between economically active Union citizens and the others. The former enjoyed full equality of treatment with nationals from the first day of work in the host Member State. On the other hand, a more nuanced approach to equality, based on the length of stay in the host Member State and on actual integration into the society of that State was applied for the latter. ( 16 )

2. The requirement of sufficient integration for workers

36.

However in the mid-2000s, the Court blurred that clear distinction by introducing the concept of sufficient integration or genuine link with the host Member State into its case-law relating to workers. ( 17 )

37.

While recalling that Article 7 of Regulation No 492/2011 applies to frontier workers, ( 18 ) the Court acknowledged that Member States could make the grant of a social advantage conditional on the existence of a sufficiently close connection to the Member State concerned. ( 19 ) Accordingly, the fact that a non-resident worker did not have a sufficiently substantial occupation in the host Member State was held to be ‘capable of constituting a legitimate justification for a refusal to grant the social advantage at issue’. ( 20 )

38.

However, clarification was given in the judgment of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346). In that judgment, the Court reminded the Member States that ‘although the Member States’ power — which the Court has recognised, subject to the respect of certain conditions — to require nationals of other Member States to show a certain degree of integration in their societies in order to receive social advantages, such as financial assistance for education, is not limited to situations in which the applicants for assistance are economically inactive citizens, the existence of a residence requirement … to prove the required degree of integration is, in principle, inappropriate when the persons concerned are migrant workers or frontier workers.’ ( 21 )

39.

As regards migrant workers and frontier workers, ‘the fact that they have participated in the employment market of a Member State establishes, in principle, a sufficient link of integration with the society of that Member State, allowing them to benefit from the principle of equal treatment, as compared with national workers, as regards social advantages’. ( 22 )

3. The need to interpret restrictively the requirement for workers to be sufficiently integrated

40.

That historical overview of the Court’s case-law concerning the interpretation of Article 7(2) of Regulation No 492/2001 must result in the possibility of making the grant of a social advantage to a migrant or frontier worker conditional on evidence of his sufficient integration into the host Member State being interpreted restrictively.

41.

The provisions adopted by the Union legislature on the basis of Article 45 TFEU support this position.

42.

First of all, the principle of non-discrimination in the grant of social advantages between migrant workers or frontier workers and national workers is confirmed in Article 7(2) of Regulation No 492/2011.

43.

Therefore, that provision is in accordance with the second paragraph of Article 288 TFEU, binding in its entirety and directly applicable in all the Member States. Therefore, in principle, the Member States have no leeway in the implementation of Article 7(2) of Regulation No 492/2011. ( 23 )

44.

Next, the existence of a distinction between migrant workers and members of their families, on the one hand, and Union citizens who apply for aid without being economically active, on the other hand, is apparent from Article 24 of Directive 2004/38.

45.

Indeed, ‘[a]lthough Article 24(1) of Directive 2004/38 provides that all EU citizens residing on the basis of that directive in the territory of the host Member State are to enjoy equal treatment “within the scope of the Treaty”, Article 24(2) provides that a Member State may, in relation to persons other than workers, self-employed persons, persons who retain such status and members of their families, limit the grant of maintenance aid, consisting in student grants or student loans, in the case of students who have not acquired a right of permanent residence’. ( 24 )

B – The question referred for a preliminary ruling

46.

As I have indicated in the section setting out the legal framework, it was following the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), that the Luxembourg legislation on State financial aid for higher education studies was twice amended. Consequently, that judgment cannot be disregarded when replying to the question raised by the referring court.

1. The development of the Luxembourg legislation on State financial aid for higher education studies

47.

Under the Law of 22 June 2000, the grant of State financial aid for higher education studies was conditional on the student being domiciled or resident in Luxembourg.

48.

Following the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), the Law of 19 July 2013 amended the Law of 22 June 2000 so as to extend the benefit of State financial aid to the student who does not reside in Luxembourg provided that that student ‘is the child of an employed or self-employed person who is a Luxembourg national or a national of the European Union … employed or pursuing an activity in Luxembourg, and has been employed or has pursued an activity in Luxembourg for a continuous period of at least five years at the time the student makes the application for financial aid for higher education studies’. ( 25 )

49.

However, that law was soon repealed by the Law of 24 July 2014, which provides that the condition as to the work of the parent of the non-resident student means ‘a period of at least five years at the time of the student’s application for financial aid for higher education studies within a reference period of seven years counting back from the date of the application for financial aid for higher education’. ( 26 )

2. The judgment in Giersch and Others

50.

Several observations made by the Court in the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411) are still relevant following the amendment to the legislation in 2013.

51.

In the first place, ‘study finance granted by a Member State to the children of workers constitutes, for the migrant worker [who continues to support the child], a social advantage within the meaning of Article 7(2) of Regulation [No 492/2011]’. ( 27 )

52.

In the second place, the members of the family of a migrant worker are, for their part, the indirect recipients of the equal treatment granted to the worker under Article 7(2) of Regulation No 492/2011. ’Since the grant of funding for studies to a child of a migrant worker constitutes a social advantage for the migrant worker, the child may himself rely on that provision in order to obtain the funding if, under national law, such funding is granted directly to the student’. ( 28 )

53.

In the third place, the condition of residence in Luxembourg, such as that which was imposed by the provision at issue in the case that gave rise to the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), is liable to operate mainly to the detriment of nationals of Member States other than the host Member State, as non-residents are in the majority of cases foreign nationals. ( 29 )‘The difference in treatment which arises from a condition of residence being imposed on students who are the children of frontier workers thus constitutes indirect discrimination on the ground of nationality which is in principle prohibited, unless it is objectively justified’. ( 30 ) In order to be justified, it must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective. ( 31 )

54.

In the fourth place, ‘an action undertaken by a Member State in order to ensure that its resident population is highly educated and to promote the development of the economy pursues a legitimate objective which can justify indirect discrimination on grounds of nationality’. ( 32 )

3. Whether there is any objectively justified discrimination

(a) The existence of discrimination

55.

Under Article 2 bis of the Law of 22 June 2000, as amended by the Law of 19 July 2013, ‘a student not residing in the Grand Duchy of Luxembourg may also receive financial aid for higher education studies where that student is the child of an employed or self-employed person who is a Luxembourg national or a national of the European Union … and [that employed or self-employed person] has been employed or has pursued an activity in Luxembourg for a continuous period of at least five years at the time the student makes the application for financial aid for higher education studies’. ( 33 )

56.

Consequently, although that condition applies equally to Luxembourg nationals and the nationals of other Member States, like the legislation at issue in the case that gave rise to the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), it nevertheless constitutes a distinction based on residence.

57.

As it applies in the dispute in the main proceedings, the national legislation makes the grant of financial aid for higher education studies to students not residing in Luxembourg conditional on their being the children of workers who have been employed or have pursued a professional activity in that Member State for a continuous period of at least five years at the time the application for financial aid is made.

58.

That condition is not laid down in respect of students who reside in Luxembourg, since the objective put forward by that Member State is to encourage an increase in the proportion of residents with a higher education degree.

59.

It is clear to me that such a distinction may operate mainly to the detriment of nationals of other Member States because, as the Court held in the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 44), non-residents are in the majority of cases foreign nationals. It therefore constitutes, in my view, indirect discrimination on the basis of nationality which cannot be allowed unless it is objectively justified.

(b) The existence of a lawful objective

60.

In its written observations, the Luxembourg Government contends that the objective pursued by the new legislative provision in Luxembourg is identical to the ‘social’ objective which had been relied on to justify the legislation applicable in the case that gave rise to the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411).

61.

It seems that this assertion cannot be called in question. It is apparent from the explanatory memorandum of draft law No 6585, ( 34 ) on which the Law of 19 July 2013 was based, that the amendment to the financial aid scheme of the Luxembourg State for higher education studies was indeed intended only ‘to give due effect to’ the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411).

62.

That objective, which consists in significantly increasing the proportion of Luxembourg residents holding a higher education degree, ( 35 ) was recognised by the Court as an objective in the public interest acknowledged at Union level. ( 36 )

63.

Thus, the Court held that an action undertaken by a Member State in order to ensure that its resident population is highly educated and to promote the development of its economy pursues a legitimate objective which can justify indirect discrimination on grounds of nationality. ( 37 )

64.

Accordingly, I consider that there is no need to call in question that objective of the legislation at issue or its lawfulness.

(c) The appropriateness of the condition of a minimum and continuous period of work

65.

It is important to bear in mind, once again, that migrant and frontier workers, since they have participated in the labour market of a Member State, have in principle created a sufficient link of integration with the society of that State, allowing them to benefit from the principle of equal treatment as regards social advantages, as compared with national workers and resident workers. ( 38 )

66.

The link of integration arises, in particular, from the fact that migrant workers contribute to the financing of the social policies of the host Member State through the tax and social contributions which they pay in that State, by virtue of their employment there. They should therefore be able to profit from them under the same conditions as national workers. ( 39 )

67.

It is true that the Court has accepted certain reasons as justifying legislation establishing a distinction between residents and non-residents pursuing a professional activity in the Member State concerned, according to their level of integration into the society of that State or their connection to it. ( 40 )

68.

However, I would reiterate that I am reticent about that development in the case-law. ( 41 ) Indeed, ‘as regards migrant workers and frontier workers, the fact that they have participated in the employment market of a Member State establishes, in principle, a sufficient link of integration with the society of that Member State, allowing them to benefit from the principle of equal treatment, as compared with national workers, as regards social advantages’. ( 42 ) The requirement concerning evidence of specific integration for those persons therefore constitutes an exception to the rule and must, accordingly, be applied restrictively.

69.

There is, as it were, a presumption that the migrant or frontier worker is integrated into the Member State in which he works and to which he pays taxes and social contributions which contribute to the financing of the social policies of that State. ( 43 )

70.

Therefore, although I can accept that ‘students who are resident in Luxembourg when they are about to embark on their higher education studies may be more likely than non-resident students to settle in Luxembourg and become integrated in the Luxembourg labour market after completing their studies, even if those studies were undertaken abroad’, ( 44 ) I am more cautious about the impact of the duration of the period of work in the territory of the host Member State of one of the student’s parents.

71.

Moreover, in its early case-law, the Court firmly rejected the possibility of making the grant of a social advantage conditional on completion of a minimum period of occupational activity. ( 45 )

72.

Consequently, I share the Commission’s view that the condition linked to the sufficient integration of one of the student’s parents on the labour market of the host Member State is unrelated to the objective pursued, namely to increase significantly, in the Grand Duchy of Luxembourg, the proportion of residents holding a higher education degree. ( 46 )

73.

However, the condition relating to the period of work of one of the parents of the student in the territory of the host Member State seems to have been suggested by the Court itself, even if it was so suggested by way of example. In its examination of the necessity for the residence condition applicable in the case that gave rise to the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), the Court itself considered that a sufficient attachment of the student in question with the Grand Duchy of Luxembourg such as to make it possible to conclude that there is a reasonable probability that the recipients of the aid will return to Luxembourg and make themselves available to the labour market of that Member State, may ‘also be derived from the fact that that student resides alone or with his parents in a [bordering] Member State … and that, for a significant period of time, his parents have worked in Luxembourg and live near to that Member State’. ( 47 )

74.

That approach clashes with the approach traditionally followed by the Court in relation to student mobility. Thus, in the judgment of 25 October 2012, Prete (C‑367/11, EU:C:2012:668), did not the Court rightly hold that the Belgian Government’s argument, to the effect that a person who resides close to the border with the Member State in which he has completed his studies is more likely to enter the labour market of that State, with which he has a connection, should be rejected? ( 48 ) Indeed, ‘the knowledge acquired by a student in the course of his higher education does not in general assign him to a particular geographical employment market’. ( 49 )

75.

The position of students seems to me to be closer to that finding. Consequently, in the light of that finding and of the foregoing considerations, I consider that the condition relating to the minimum and continuous period of work of the parent of the student is inappropriate for attaining the objective pursued.

76.

However, I must also recognise that the Court has, de facto and de jure, accepted that the parents being in employment, for a considerable period in the Member State which provides the aid applied for, might be appropriate for the purposes of showing the actual degree of attachment with the society or labour market of that State.

77.

On the assumption that the Court confirms that analysis, I shall therefore examine, in the alternative, the necessity for the condition concerning a minimum and continuous period of work.

(d) The necessity of the condition of the minimum and continuous period of work

78.

In order to comply with EU law, the condition relating to the minimum and continuous period of work at the time the application for financial aid is made must not go beyond what is necessary for attaining the objective pursued.

79.

The situation which has given rise to the dispute in the main proceedings is enlightening. Mr Linares Verruga was refused financial aid even though his parents have both worked in Luxembourg for a continuous period of more than five years with only a few short breaks during the five years preceding the application for financial aid.

80.

However, the possibility of derogating from the strict application of the principle of equality in the grant of social advantages to migrant and frontier workers, as reiterated in Article 7(2) of Regulation No 492/2011, may only be limited and interpreted restrictively.

81.

A rule such as that laid down in the legislation at issue in the main proceedings, which makes the grant of financial aid for higher education studies conditional on a minimum continuous period of work of five years in a general way, without leaving the competent authorities any discretion when examining the applicant’s situation, seems to me to go beyond what is necessary for attaining the legitimate objective of increasing the number of holders of higher education degrees among the resident population, in order to promote the development of the national economy. ( 50 )

82.

Such a rule seems to me to be overly general and exclusive within the meaning of the Court’s settled case-law. ‘It unduly favours an element which is not necessarily representative of the real and effective degree of connection between the applicant for the allowance … and the geographic employment market, to the exclusion of all other representative elements’. ( 51 ) In so doing, it therefore goes beyond what is necessary for attaining the objective pursued.

83.

The analogy with Article 16(1) of Directive 2004/38 suggested by the Luxembourg Government does not seem to me to alter that finding. Admittedly, the Court itself refers to that provision in paragraph 80 of the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411). However, this is merely an illustration of the condition as to the period which the Court considered might be envisaged in order to avoid ‘the risk of “study grant forum shopping”’. ( 52 ) In particular, as the Court itself points out, that condition lies ‘in another context’. ( 53 )

84.

Article 16 of Directive 2004/38 lays down a condition of a minimum continuous period of residence in order to ensure the grant of the right of permanent residence to persons settled on a long-term basis in the host Member State. However, that consideration is, by definition, inapplicable to the situation of frontier workers.

85.

The reference to Article 24 of Directive 2004/38 is hardly more appropriate. On the contrary, as I have mentioned above, Article 24(2) of that Directive expressly reserves the possibility of derogating from the principle of equal treatment to persons other than workers, self-employed persons, persons who retain such status and members of their families.

VI – Conclusion

86.

In the light of the foregoing considerations, I would propose that the Court reply to the question referred for a preliminary ruling by the tribunal administrative du Grand-Duché de Luxembourg (Administrative Court of the Grand Duchy of Luxembourg) as follows:

Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as precluding legislation of a Member State such as that at issue in the main proceedings, which makes the grant of financial aid for higher education studies conditional on the student’s parents having worked for a minimum continuous period of five years at the time the application for financial aid is made and establishes a difference in treatment, constituting indirect discrimination, between persons residing in the Member State concerned and those who, without residing in that Member State, are the children of frontier workers pursuing an activity in that Member State.


( 1 ) Original language: French.

( 2 ) See, in that regard, the communication of the Commission and the Conclusions of the Council of the European Union cited by Advocate General Mengozzi in his Opinion in Giersch and Others (C‑20/12, EU: C: 2013:70, points 42 to 44).

( 3 ) OJ, English Special Edition 1968 (II), p. 475.

( 4 ) OJ 2004 L 158, p. 77, and corrigenda in OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34.

( 5 ) OJ 2011 L 141, p. 1.

( 6 ) OJ 2004 L 166, p. 1, and corrigendum in OJ 2004 L 200, p. 1.

( 7 ) OJ 2010 L 338, p. 35.

( 8 ) Although the legislation at issue applies both to employed and self-employed persons, the request for a preliminary ruling focuses on Article 7(2) of Regulation No 492/2011. The arguments have therefore related to the situation of ‘employed persons’ only. However, I consider that the reasoning which I am going to follow may apply, mutatis mutandis, to the situation of self-employed persons. The principle of equal treatment for national workers and the nationals of other Member States (in particular, in relation to the grant of social advantages) applies also to self-employed persons (see, to that effect, judgment of 14 January 1988, Commission v Italy, 63/86, EU:C:1988:9, paragraphs 12 to 16). See also Barnard, C., The Substantive Law of the EU. The Four Freedoms, 4th ed., Oxford University Press, 2013, p. 313.

( 9 ) See judgment of 7 September 2004, Trojani (C‑456/02, EU:C:2004:488, paragraph 15). The requirement that activities be real and genuine and its corollary, the exclusion of activities which are purely marginal and ancillary appeared very early on in the Court’s case-law (see, to that effect, judgment of 23 March 1982, Levin, 53/81, EU:C:1982:105, paragraph 17).

( 10 ) See judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 35). See also, judgment of 11 September 2007, Hendrix (C‑287/05, EU:C:2007:494, paragraph 53).

( 11 ) Emphasis added.

( 12 ) See, to that effect, with regard to Regulation No 1612/68 (recital 4 of which was identical to recital 5 of Regulation No 492/2011), judgments of 27 November 1997, Meints (C‑57/96, EU:C:1997:564, paragraph 50), and of 8 June 1999, Meeusen (C‑337/97, EU:C:1999:284, paragraph 21).

( 13 ) See judgment of 27 November 1997, Meints (C‑57/96, EU:C:1997:564, paragraph 51 and point 3 of the operative part). See, also, judgment of 8 June 1999, Meeusen (C‑337/97, EU:C:1999:284, paragraph 21 and point 2 of the operative part).

( 14 ) See judgment of 21 June 1988, Lair (39/86, EU:C:1988:322, paragraph 42). See, also, judgment of 6 June 1985, Frascogna (157/84, EU:C:1985:243, paragraph 25), delivered three years earlier in relation to an application for a special old-age allowance.

( 15 ) See, in that regard, Pataut, E., ‘La détermination du lien d’intégration des citoyens européens’, RTD Eur., 2012, p. 623 et seq.

( 16 ) See, to that effect, Barnard, C., ‘Case C‑209/03, R (on the application of Danny Bidar) v London Borough of Ealing, Secretary of State for Education and Skills, judgment of the Court (Grand Chamber) 15 March 2005, not yet reported’, CML Rev., 42, 2005, pp. 1465 to 1489, especially p. 1488.

( 17 ) See, to that effect, O’Leary, S., ‘The curious case of frontier workers and study finance: Giersch’, CML Rev., 51, 2014, pp. 601 to 622, especially p. 609. See also the comment of Martin, D., who writes, in relation to the judgment of 18 July 2007, Hartmann (C‑212/05 EU:C:2007:437): ‘Not only the acceptance of a social policy cause of justification in the field of free movement is a reversal of a consistent case-law’ (Martin, D., ‘Comments on Jia v Migrationsverket (Case C‑1/05 of 9 January 2007), Hartmann v Freistaat Bayern (Case C‑213/05 of 18 July 2007) and Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen (Case C‑287/05 of 11 September 2007)’, European Journal of Migration and Law, 9, 2007, pp. 457 to 471, especially p. 467; emphasis added).

( 18 ) See, to that effect, judgments of 18 July 2007, Hartmann (C‑212/05, EU:C:2007:437, paragraph 24); of 18 July 2007, Geven (C‑213/05, EU:C:2007:438, paragraph 15); of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346, paragraph 33); and of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 37).

( 19 ) See, to that effect, Cavallini, J., ‘Subordonner l’octroi d’une allocation à une condition de résidence peut caractériser une discrimination indirecte’, JCP/La Semaine Juridique — Édition sociale, No 40, 2007, pp. 32 to 34.

( 20 ) Judgments of 18 July 2007, Hartmann (C‑212/05, EU:C:2007:437, paragraph 36), and of 18 July 2007, Geven (C‑213/05, EU:C:2007:438, paragraph 26).

( 21 ) Judgment of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346, paragraph 63). Emphasis added. The national law at issue in that case made the financing of higher education studies pursued outside the Member State in question conditional on residence in the territory of that State for at least three years during the six years preceding the student’s enrolment.

( 22 ) Judgment of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346, paragraph 65).

( 23 ) See, to that effect, Martin, D., ‘Comments on Jia v Migrationsverket (Case C‑1/05 of 9 January 2007), Hartmann v Freistaat Bayern (Case C‑213/05 of 18 July 2007) and Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen (Case C‑287/05 of 11 September 2007)’, European Journal of Migration and Law, 9, 2007, pp. 457 to 471, especially p. 467.

( 24 ) Judgment of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346, paragraph 64). Emphasis added.

( 25 ) Article 2 bis of the Law of 22 June 2000, inserted by Article 1(1) of the Law of 19 July 2013.

( 26 ) Article 3 of the Law of 24 July 2014 on State financial aid for higher education studies. That law is not at issue in the present case.

( 27 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 39).

( 28 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 40 and the case-law cited).

( 29 ) See, to that effect, judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 44).

( 30 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12,EU:C:2013:411, paragraph 46).

( 31 ) See, to that effect, judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 46 and the case-law cited).

( 32 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 56).

( 33 ) Emphasis added.

( 34 ) Draft law No 6585 amending the Law of 22 June 2000 on State financial aid for higher education (document 6585 of 5 July 2013, p. 2, available on the website of the Chamber of Deputies of the Grand Duchy of Luxembourg at the following address: http://www.chd.lu/wps/portal/public/RoleEtendu?action=doDocpaDetails&id= 6585#).

( 35 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 48).

( 36 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 53).

( 37 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 56 and the operative part).

( 38 ) See, to that effect, judgments of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346, paragraph 65), and of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 63).

( 39 ) See, to that effect, judgments of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346, paragraph 66), and of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 63).

( 40 ) See, in that regard, the developments outlined in title A [of section V] of this Opinion.

( 41 ) See point 40 of this Opinion.

( 42 ) Judgment of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346, paragraph 65). Emphasis added.

( 43 ) See, to that effect, O’Leary, S., ‘The curious case of frontier workers and study finance: Giersch’, CML Rev., 51, 2014, pp. 601 to 622, especially p. 610.

( 44 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 67).

( 45 ) See, to that effect, judgments of 21 June 1988, Lair (39/86, EU:C:1988:322, paragraph 42), and of 6 June 1985, Frascogna (157/84, EU:C:1985:243, paragraph 25).

( 46 ) See the Commission’s written observations (paragraph 44). The two examples given by the Commission at the hearing on 14 April 2016 are quite illuminating in that regard. Under the legislation at issue, a Lithuanian child whose father, of the same nationality, has resided and worked in Luxembourg for only one month is, in principle, entitled to financial aid for higher education studies. On the other hand, a child whose father is a Belgian frontier worker, who has worked in Luxembourg for more than 15 years, but with a period of interruption during the last five years, would not be entitled to the aforementioned aid even though his child has completed all his schooling there. The condition of a continuous period of work also applies in the same way to the child of a Belgian frontier worker who has always lived with his other parent in Cyprus — and is therefore unlikely to intend settling in Luxembourg after finishing his studies — and to the child of a Belgian frontier worker who lives with that parent in Belgium and has completed all his schooling in Luxembourg.

( 47 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 78). Recognition of that ground of justification also appears in the operative part of that judgment, which states that ‘while the objective of increasing the proportion of residents with a higher education degree in order to promote the development of the economy of that same Member State is a legitimate objective which can justify such a difference in treatment and while a condition of residence, such as that provided for by the national legislation at issue in the main proceedings, is appropriate for ensuring the attainment of that objective, such a condition nevertheless goes beyond what is necessary in order to attain the objective pursued, to the extent that it precludes the taking into account of other elements potentially representative of the actual degree of attachment of the applicant for the financial aid with the society or with the labour market of the Member State concerned, such as the fact that one of the parents, who continues to support the student, is a frontier worker who has stable employment in that Member State and has already worked there for a significant period of time’ (emphasis added).

( 48 ) Paragraph 45 of that judgment.

( 49 ) Judgment of 25 October 2012, Prete (C‑367/11, EU:C:2012:668, paragraph 45). See, also, judgment of 15 March 2005, Bidar (C‑209/03, EU:C:2005:169, paragraph 58).

( 50 ) In that respect, the amendment made by the Law of 24 July 2014 on State financial aid for higher education studies, under which period of work of five years is now calculated within a reference period of seven years, still does not seem to me to meet the requirement of proportionality. In the judgment of 14 June 2012, Commission v Netherlands (C‑542/09, EU:C:2012:346), the Court held that the Netherlands legislation was contrary to EU law. However, the national law at issue in that case was less severe than the Luxembourg law, because it made the financing of higher education studies pursued outside its territory subject to the condition of having resided on its territory for at least three years during the six years preceding the student’s enrolment.

( 51 ) Judgment of 11 July 2002, D’Hoop (C‑224/98, EU:C:2002:432, paragraph 39). See also, to that effect, the judgment of 18 July 2913, Prinz and Seeberger (C‑523/11 and C‑585/11, EU:C:2013:524, paragraph 37 and the case-law cited).

( 52 ) Judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 80).

( 53 ) Judgment of 20 June 2013, Giersch and Others (C‑20712, EU:C:2013:411, paragraph 80).

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