Case C‑233/14

European Commission

v

Kingdom of the Netherlands

‛Failure of a Member State to fulfil obligations — Articles 18 TFEU, 20 TFEU and 21 TFEU — Citizenship of the Union — Right to move and reside freely — Discrimination on grounds of nationality — Financial support for travel costs awarded to national students — Directive 2004/38/EC — Article 24(2) — Derogation from the principle of equal treatment — Maintenance aid for studies consisting in student grants or student loans — Scope — Formal requirements of the application initiating proceedings — Coherent statement of the pleas in law’

Summary — Judgment of the Court (First Chamber), 2 June 2016

1. Action for failure to fulfil obligations — Application initiating proceedings — Statement of subject matter and pleas in law — Formal requirements — Unambiguous wording of the form of order sought by the applicant — Absolute bar to admissibility

   (Art. 258 TFEU; Rules of Procedure of the Court of Justice, Art. 120(c))

2. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Principle of equal treatment — Scope ratione personae — Students who are nationals of a Member State, including Erasmus students — Included — Substantive scope — Financial support for travel costs awarded to students — Included

   [Arts 18 TFEU, 20 TFEU and 21 TFEU; European Parliament and Council Directive 2004/38, Art. 1(a) and 24(1))

3. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Principle of equal treatment — Derogation — Financial support for travel costs awarded to national students — Lawfulness

   (Art. 18 TFEU; European Parliament and Council Directive 2004/38, Art. 24(2))

1.  See the text of the decision.

   (see paras 32-35, 43)

2.  A national of a Member State of the European Union who is studying in another Member State is entitled, under Articles 18 TFEU and 21 TFEU, to move and reside freely within the territory of the host Member State, without being subject to direct or indirect discrimination on grounds of nationality. A scheme providing for reduced transport fares for students falls within the scope of the FEU Treaty in so far as it enables them, directly or indirectly, to cover their maintenance costs. Furthermore, the principle of non-discrimination on grounds of nationality, enshrined as a general principle in Article 18 TFEU and laid down specifically in respect of Union citizens coming within the scope of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States in Article 24 of that directive, prohibits, inter alia, direct discrimination on grounds of nationality. In that regard, although it is true that the aim of Directive 2004/38 is to facilitate and strengthen the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on each citizen of the Union, the fact remains that the subject matter of the directive concerns, as is apparent from Article 1(a), the conditions governing the exercise of that right. In particular, so far as concerns access to financial assistance, a Union citizen may claim equal treatment with nationals of the host Member State under Article 24(1) of Directive 2004/38 only if his residence in the territory of that State complies with the conditions of that directive.

   (cf. points 78-82)

3.  Since Article 24(2) is a derogation from the principle of equal treatment provided for in Article 18 TFEU, of which Article 24(1) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States is merely a specific expression, it must be interpreted narrowly. Although financial support for travel costs granted to students who are nationals of a Member State constitutes maintenance aid for the students concerned, only maintenance aid for studies consisting in student grants or student loans falls within the scope of the derogation from the principle of equal treatment under Article 24(2) of Directive 2004/38.

   In that regard, the legislation of a Member state pursuant to which the student is entitled to a travel card granting him free access to public transport or access at a reduced rate without being required to repay that financial assistance if he successfully completes his studies within 10 years, though he must repay it if he fails to complete his studies within that period, establishes financial support for travel costs, which has the characteristics of and is akin to a student grant or a loan, depending on whether or not the student successfully completes his studies within a period of 10 years. It follows that such support falls within the derogation set out in Article 24(2) of Directive 2004/38. The Member State concerned may therefore rely on the derogation, without causing direct discrimination on the basis of nationality, in order to refuse to grant that support, before the person concerned has acquired the right of permanent residence, to persons other than employed persons, self-employed persons, persons who retain such status or their family members.

   It is irrelevant, in that regard, on the one hand, that the support is a conditional grant or loan, or, on the other, that, in principle, financial support for travel costs is granted in the form of a travel card, that is to say not in cash, but in kind.

   (see paras 86, 87, 89-92, 94, 95)