Opinion of the Advocate General — ECLI:EU:C:2008:399
Date: 2008-07-10
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Freedom of movement for persons – Workers – Right to remain in the territory of a Member State after having been employed in that State (Commission Regulation No 1251/70, Arts 1, 2 and 7) 2. Community law – Principles – Equal treatment – Discrimination on grounds of nationality (Art. 12, first para., EC) 3. Community law – Principles – Legal certainty – Meaning 1. A student who is a national of a Member State and travels to another Member State in order to study there and who ceased all employment during the period at issue in order to pursue his studies, without however having abandoned his plan to continue his career in that latter Member State, where he maintained his residence, cannot, in order to obtain a maintenance grant, rely on Article 7 of Regulation No 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State, which provides that a worker who is a national of a Member State is to enjoy in the territory of another Member State ‘the same social and tax advantages as national workers’. The conditions of entitlement to the worker’s right to remain in the host Member State are set out exhaustively in Article 2 of Regulation No 1251/70. Since the situation of the student in question does not fall within any of the cases set out in that article, such a student cannot be regarded as a ‘[national] of a Member State who [has] worked as [an employed person] in the territory of another Member State’ within the meaning of Article 1 of Regulation No 1251/70, and that regulation thus is not applicable. (see paras 27, 29-33, operative part 1) 2. A student who is a national of a Member State and travels to another Member State to study there can rely on the first paragraph of Article 12 EC in order to obtain a maintenance grant where he or she has resided for a certain duration in the host Member State. The first paragraph of Article 12 EC does not preclude the application to nationals of other Member States of a requirement of five years’ prior residence. It is legitimate for a Member State to grant assistance covering maintenance costs only to students who have demonstrated a certain degree of integration into the society of that State. In that regard, the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host Member State for a certain length of time. As regards, specifically, the compatibility with Community law of a condition of five years’ uninterrupted residence, it is appropriate for the purpose of guaranteeing that the applicant for the maintenance grant at issue is integrated into the society of the host Member State. Furthermore, such a condition of five years’ uninterrupted residence cannot be held to be excessive having regard, inter alia, to the requirements put forward with respect to the degree of integration of non-nationals in the host Member State. Moreover, in order to be proportionate, a residence requirement must be applied by the national authorities on the basis of clear criteria known in advance. By enabling those concerned to know, without any ambiguity, what their rights and obligations are, the residence requirement laid down by the national legislation at issue is, by its very existence, such as to guarantee a significant level of legal certainty and transparency in the context of the award of maintenance grants to students. Thus, the residence requirement of five years, such as that laid down in the national legislation, does not go beyond what is necessary to attain the objective of ensuring that students from other Member States are to a certain degree integrated into the society of the host Member State. That finding is without prejudice to the option for Member States to award maintenance grants to students from other Member States who do not fulfil the five year residence requirement should they wish to do so. (see paras 43, 49-52, 54, 56-60, operative part 2) 3. The principle of legal certainty – which is one of the general principles of Community law – requires, particularly, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings. Since making the right of students from other Member States to a maintenance grant subject to a residence requirement, as an essential element of that right, does not have any negative consequences but gives greater rights to the students concerned than those to which they were entitled under the former national rules, Community law, in particular the principle of legal certainty, does not preclude the application of such a residence requirement which makes the right of students from other Member States to a maintenance grant subject to the completion of periods of residence which occurred prior to the introduction of that requirement. (see paras 67, 69-71, operative part 3)