Opinion of the Advocate General — ECLI:EU:C:2012:536
Date: 2012-09-06
Language of the case: German
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Action for failure to fulfil obligations - successful
Origin: Austria

Summary — Judgment of the Court (Second Chamber), 4 October 2012 1. Social security — Power of the Member States to organise their social security systems — Limits — Observance of European Union law — Treaty rules on the free movement of citizens of the Union — Prohibition on direct and indirect discrimination on grounds of nationality (Art. 18 TFEU; Council Regulation No 1408/71; European Parliament and Council Directive 2004/38, Art. 24) 2. Citizenship of the Union — Right to move and reside freely on the territory of the Member State — National rules providing for reduced transport fares for students — Reduction subject to the condition that the parents receive family allowances in that Member State — Indirect discrimination on grounds of nationality — Not permissible — Justification — Conditions (Arts 18 TFEU, 20 TFEU and 21 TFEU; European Parliament and Council Directive 2004/38, Art. 24) 3. Citizenship of the Union — Right to move and reside freely on the territory of the Member State — Directive 2004/38 — Principle of equal treatment — Derogation — No obligation for the host Member State to grant maintenance aid for studies consisting in student grants — Limits — Grant of reduced fares on public transport to students — Derogation not permitted (Art. 18 TFEU; European Parliament and Council Directive 2004/38, Art. 24) 1. See the text of the decision. (see paras 46 to 49) 2. By granting reduced fares on public transport in principle only to students whose parents are in receipt of national family allowances, a Member State fails to fulfil its obligations under the combined provisions of Articles 18 TFEU, 20 TFEU and 21 TFEU and also Article 24 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. Making the reduced transport fares subject to the grant of family allowances in the host Member State gives rise to unequal treatment as between students of that Member States pursuing their studies there and students from other Member States pursuing their studies there as well, since such a condition is more easily fulfilled by students of that Member State because their parents as a rule receive those allowances. Such inequality of treatment is contrary to the principles which underpin the status of citizen of the Union, namely the guarantee of receiving the same treatment in law in the exercise of their right of free movement. Such indirect discrimination on grounds of nationality can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions. In that regard, it is legitimate for a host Member State to wish to ensure that there is a genuine link between a claimant to a benefit and the competent Member State. Accordingly a national scheme requiring a student to provide proof of such a link with the host member State could, in principle, reflect a legitimate objective capable of justifying restrictions. However, the proof required to demonstrate the genuine link must not be too exclusive in nature and, moreover, the genuine link required need not be fixed in a uniform manner for all benefits, but should be established according to the constitutive elements of the benefit in question, including its nature and purposes. As regards reduced transport fares for students, the existence of a genuine link between the student pursuing his studies in the host Member State could actually be ascertained, inter alia, by checking whether the person in question is enrolled at a private or public establishment, accredited or financed by the host Member State. (see paras 50 to 52, 59 to 66, operative part) 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 the reduced transport fares granted to the students concerned constitute maintenance aid for them, they cannot be considered maintenance aid for studies ‘consisting in student grants or student loans’ coming within the derogation from the principle of equal treatment provided for in Article 24(2) of Directive 2004/38, which may not be granted to certain categories of citizens of the Union who reside in the territory of the host Member State under the same directive. (see paras 54, 55)