Opinion of the Advocate General — ECLI:EU:C:2016:50
Date: 2016-01-26
Language of the case: Dutch
Subject matter: Citizenship of the Union
Procedure: Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - inadmissible
Origin: Netherlands

summary of the pleas in law on which the application is based so as to enable the defendant to prepare his defence and the Court to rule on the application. (26) The essential points of law and fact must be indicated coherently and intelligibly in the application itself and the form of order sought must be set out unambiguously. (27) Moreover, such an application is to be considered by having regard only to the form of order sought in the original application. That form of order must be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a complaint. (28) The subject-matter of the dispute is also defined by the letter of formal notice and the reasoned opinion and cannot thereafter be extended. (29) The application and the reasoned opinion(s) must be founded on the same complaints. (30) 64. In the present case, the Netherlands asks the Court to declare the Commission’s application inadmissible in so far as it asserts indirect discrimination. I recall that, in any event, failure to satisfy the conditions under Article 258 TFEU constitutes an absolute bar to proceeding with a case and may be raised by the Court of its own motion even if no objection of inadmissibility was raised by one of the parties before it. (31) 65. I agree with the Netherlands as regards the claim of indirect discrimination and will address the admissibility of that claim first. Indeed, I consider that the Court should of its own motion declare that part of the application inadmissible for reasons that are not limited to that claim. 66. Indirect discrimination on grounds of nationality exists where a provision of national law is intrinsically liable to affect nationals of other Member States more than nationals of the host Member State and there is a consequent risk that it will place the former at a particular disadvantage, unless it is objectively justified and proportionate to the aim pursued. (32) Thus, where such a claim is made, it is essential to identify a criterion other than nationality whose application none the less results in discrimination based on nationality. 67. That the Commission has failed to do. 68. In response to the Netherlands’ objection, the Commission says merely that its complaint of indirect discrimination is not new and that it should have been clear from the two reasoned opinions that the Commission did not exclude the possibility of indirect discrimination. 69. At one point in those reasoned opinions, the Commission stated that the condition of permanent residence under Netherlands law resulted in indirect discrimination against non-Netherlands EU citizens in general (not limited to non-Netherlands Erasmus students), that it was directly contrary to the wording of Article 24(2) of Directive 2004/38, and that it followed that limiting access to the OV student card to economically active persons and permanent residents was contrary to Articles 18, 20 and 21 TFEU as well as Article 24 of Directive 2004/38. At another point, the Commission alleged only direct discrimination. Yet another part of the reasoned opinions concerned the possible justification for indirect discrimination. Finally, in its letter of formal notice the Commission alleged discrimination on grounds of nationality but failed to identify the criterion causing that discrimination. It merely focused on the fact (which is undisputed) that non-Netherlands students need to pay for public transport at the full rate whereas Netherlands students enjoy reduced fares. It then concluded that the principle of equal treatment should apply to all EU citizens falling within the scope of, inter alia, Directive 2004/38 and who study in the host Member State, irrespective of whether they are permanent residents there. 70. Leaving aside the question whether the Netherlands was put on adequate notice that the Commission’s application (if made) would include indirect discrimination, the Commission has throughout failed to identify what criterion used in which provision of national law indirectly discriminates in the present case. 71. It cannot be a nationality condition as such. That is because the Commission claims that, as regards direct discrimination, the Netherlands treats non-Netherlands nationals on less favourable terms than its own nationals. The former are subject to the conditions of economic activity and/or permanent residence in order to obtain the OV student card, whereas the latter are not. The Commission’s claim of direct discrimination thus necessarily asserts a difference of treatment on grounds of nationality: the difference being whether a student does or does not need to show, inter alia, permanent residence. But if so, the Commission’s application cannot be read as claiming that the permanent residence condition also results in indirect discrimination. That would only be possible had the Netherlands legislation (quod non) applied the permanent residence condition to all students applying for study finance including the OV student card. 72. At the hearing, in response to questioning from the Court, the Commission identified Article 7.37 of the Law on Higher Education and Scientific Research and Article 3(a)(2) of the Bsf 2000 as the discriminatory provisions. It did not specify whether their application gave rise to direct or indirect discrimination. 73. As regards indirect discrimination, the Commission thus appeared to suggest — without further elaboration — that both the registration condition and the permanent residence conditions (in so far as it applies to vocational students) entail indirect discrimination. Insofar as that is the Commission’s complaint, the application should clearly be dismissed as inadmissible. The Commission has failed to identify the alleged discriminatory criterion in a coherent, sufficient and timely manner. I add that it would be a complete travesty of the Article 258 procedure if the Commission were permitted to identify the allegedly indirectly discriminatory element of a Member State’s laws for the first time at the stage of the oral hearing. 74. So far as the claim of direct discrimination is concerned, I have already noted the lack of coherence in the Commission’s application and the pre-litigation stage with respect to the criterion of nationality. The Netherlands nevertheless accepts that it treats Netherlands students and students from, inter alia, other EU Member States differently as regards study finance, including the OV student card, by requiring the latter to be either economically active or permanent residents. Its written pleadings here specifically cited Article 3(a)(1) and (2) of the Bsf 2000. 75. In my view, it does not necessarily follow that the Commission’s complaint of direct discrimination against all non-Netherlands nationals is admissible. Let us look a little more closely at the two provisions of national law that the Commission identified during the hearing. 76. Article 7.37 of the Law on Higher Education and Scientific Research defines what constitutes registration with a recognised educational institution. It requires proof to be shown that the college tuition fees due have been, or will be, paid. It makes no reference to nationality. I cannot therefore see how that provision can of itself give rise to direct discrimination. 77. Nor did the Commission identify that provision as directly discriminatory in its application or at any other stage of the proceedings. The provisions relied upon in the section of the Commission’s application addressing direct discrimination were Articles 2.2(1)(b) and 3.6(2) of the Wsf 2000 and Article 3(a) of the Bsf 2000. In the section of its reply on Article 24(2) of Directive 2004/38, the Commission relied on Article 3.2(1) of the Wsf 2000 (which sets out the monthly budget of a vocational student, although the remaining part of the Commission’s arguments in that section appears to concern the position of a higher education student). 78. Article 3(a)(2) of the Bsf 2000 deals with vocational students. By identifying this provision orally (and indeed in its written pleadings), the Commission thus appeared to be limiting its complaint of direct discrimination to vocational students. When asked at the hearing whether that was true, the Commission responded that it was not. Higher education students were also covered. But, the Commission still did not identify the provision(s) of national law resulting in direct discrimination against higher education students. 79. For good measure, although those provisions of Netherlands law refer also to persons holding the nationality of an EEA State or Switzerland as well as citizens of the Union, nothing in the Commission’s application suggests that it complains of discrimination against persons who are not citizens of the Union. It follows that, if the Commission’s complaint of direct discrimination nevertheless does concern higher education students and students holding the nationality of an EEA State or Switzerland, it must also be inadmissible. 80. I conclude that the only admissible part of the Commission’s complaint of direct discrimination concerns non-Netherlands vocational students who are citizens of the Union, including Erasmus students. Substance Application of Directive 2004/38 81. Article 18 TFEU prohibits any discrimination on grounds of nationality in situations falling within the scope of application of the Treaties. However, it is intended to apply independently only to situations for which the Treaty lays down no specific prohibition on discrimination. (33) Article 21 TFEU concerns the specific situation in which an EU citizen exercises his freedom to move and reside within the territory of the Member States. (34) That includes the situation of a student who is an EU citizen and moves to another Member State in order to pursue higher education there. (35) However, those free movement rights are subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect, including Directive 2004/38. (36) Article 24 of Directive 2004/38 is a more specific expression of the principle of equal treatment generally laid down in Article 18 TFEU, with respect to EU citizens falling within the scope of that directive. (37) 82. In the present case, the Commission alleges that there is discrimination based on nationality against non-Netherlands students who have exercised their right to freedom of movement in order to study in the Netherlands and who are thus covered by Article 24 of Directive 2004/38. 83. Pursuant to Article 24(1) of Directive 2004/38, all Union citizens residing in the host Member State on the basis of that directive must enjoy equal treatment, as regards matters falling within the scope of the Treaties, with that State’s own nationals. The Court’s case-law on access to social benefits shows that this expression of the principle of equal treatment applies only with respect to students who are lawfully resident in the host Member State, meaning that their residence complies with the conditions of Directive 2004/38. (38) 84. However, Article 24(2) of Directive 2004/38 permits Member States to elect not to apply that principle with respect to ‘… 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’ who have not yet acquired the right of permanent residence. Article 24(2) thus expressly enables Member States to derogate, for a limited period of time in any individual case, from the principle of equal treatment. (39) The Court has held that that derogation is to be interpreted narrowly and in accordance with Treaty provisions, including those on citizenship of the Union and freedom of movement. (40) 85. A Member State may only rely on Article 24(2) of Directive 2004/38 if Article 24(1) applies — meaning, in the present case, if the residence of the students at issue satisfies the conditions of Directive 2004/38. (41) Both parties agree that the students covered by the Commission’s application resided in the Netherlands on the basis of Article 7(1)(c) of Directive 2004/38. Thus, it is common ground that in principle Article 24(1) applies. 86. At the hearing, the Commission was asked whether Article 7(1)(c) of Directive 2004/38 could apply given that that provision concerns EU citizens who ‘are enrolled at a private or public establishment, accredited or financed by the host Member State’ and that Erasmus students by definition remain registered in their home Member State. The Commission responded that it could but offered no further elucidation. 87. As I see it, Article 7(1)(c) of Directive 2004/38 does not harmonise the definition of a student or the detailed conditions under which a Member State may register a person as a student. In fact, enrolment is dependent on the host Member State’s legislation or administrative practice. What matters is that an EU citizen has exercised the right of free movement in order to reside in another Member State and has enrolled at a private or public establishment accredited or financed by the host Member State for the purpose of following a course of study. Article 7(1)(c) of Directive 2004/38 does not require the student to be enrolled there for the purposes of obtaining a diploma or academic qualification from that establishment, though typically that will be the case. What matters is that the enrolment in the host Member State is ‘for the principal purpose of following a course of study’ and thus enables a citizen of the Union to access the course of study. The fact that Erasmus students remain registered with an establishment in another Member State does not preclude the possibility that they may also be ‘enrolled’ elsewhere for the purposes of Article 7(1)(c). 88. Finally, there is nothing in the Commission’s case as presented that suggests that it also concerns (vocational) students whose residence in the Netherlands is not based on, or in conformity with, Directive 2004/38. I shall not therefore explore the consequences of the requirement of lawful residence for (vocational) students whose residence in another Member State is based on national law or some rule of EU law other than Directive 2004/38. Article 24(2) of Directive 2004/38 89. The Commission seeks a declaration that the Netherlands has infringed Article 24(2) of Directive 2004/38, (42) since the conditions contained in that provision are not satisfied. If the Commission is wrong about Article 24(2), it becomes unnecessary to consider whether the form of order sought also implicitly requests a declaration that the Netherlands infringed the principle of equal treatment in Article 24(1) of Directive 2004/38. 90. Whether Article 24(2) of Directive 2004/38 applies turns on whether the benefit constitutes ‘maintenance aid for studies’ awarded in the form of a ‘student grant’ or a ‘student loan’. 91. The Court has already accepted that a scheme providing for reduced transport fares for students falls within the scope of the TFEU in so far as it enables those students (directly or indirectly) to cover their maintenance costs. Transport costs are one type of living costs. (43) 92. I understand the Court in so doing to have accepted that ‘maintenance aid’ within the meaning of Article 24(2) of Directive 2004/38 is not limited to cash benefits. It also covers reduced fares, whose effect is that monies otherwise due for transport services do not need to be paid. Thus, aid to cover a student’s transport costs, whether awarded as a cash benefit or in the form of a reduced fare, constitutes maintenance aid. 93. I cannot see why a cash benefit awarded for a specific purpose (such as transport, accommodation or living costs in general) should fall within the scope of Article 24(2) of Directive 2004/38 whereas a benefit in kind awarded for the same purpose should not. From the students’ perspective, the value of the maintenance aid and the assistance thereby provided towards their living costs is the same. By contrast, from the perspective of the State, offering reduced transport fares (potentially, negotiated at a discounted price with the service provider) instead of giving money to be used for general living costs or specifically transport costs can be less costly and may also involve fewer enforcement costs (because there is no need to verify whether a cash benefit earmarked for transport costs has been put to its intended use). Providing such a benefit none the less constitutes a cost for the State. If the costs of cash benefits are accepted as counting towards the financial burden on the State justifying the derogation under Article 24(2), the costs of benefits in kinds should too. Indeed, if the derogation were to be read as covering only cash benefits, Member States might be forced to choose between providing less cost-efficient cash benefits that could be protected under the Article 24(2) derogation and more efficient benefits in kind that could not be so protected. That would be a perverse outcome. 94. The objective of the derogation confirms that ‘maintenance aid’ in Article 24(2) of Directive 2004/38 should be read so as to cover benefits in kind, including entitlements to reduced fares for public transport. This derogation is in essence the mirror provision of Article 7(1)(c) of that same directive. EU citizens have the right to reside in another Member State for a period longer than three months for the principal purpose of studying there provided they satisfy certain conditions which guarantee that they do not become a burden on the social assistance system of the host Member State during their residence. (44) That burden results, in part, from costs that would be incurred by that Member State if the principle of equal treatment were fully applicable. Whether the source of those costs is cash payments or the provision of benefits in kind should not matter. Both should be covered by the Article 24(2) derogation. 95. Nor does the fact that ‘student grants’ and ‘student loans’ are the only forms of maintenance aid for studies that fall within the scope of the derogation under Article 24(2) of Directive 2004/38 (45) mean that benefits in kind are automatically excluded. Maintenance aid for studies in the form of a benefit in kind may also be awarded as a grant or loan. If awarded as a grant, the benefit (in kind or in cash) is enjoyed without any obligation to return it, subject to any sanctions which may apply to inappropriate use. If awarded as a loan, the benefit is enjoyed temporarily and, after a defined period, must be returned, with or without interest. Where the maintenance aid is a benefit in kind and needs to be returned, the corresponding monetary value of that benefit would need to be returned. That does not alter its status as a loan. I add that, whilst the text of Article 24(2) of Directive 2004/38 circumscribes the scope of the exception in some respects, it does not lay down any quantitative threshold for the benefit. 96. I therefore part company with Advocate General Kokott who took the view in Commission v Austria that ‘… it would be overstretching the concept of “student grant” to include fare reductions’ and that the legislature intended Article 24(2) to cover only benefits of a certain extent which are designed to cover the costs associated with university education. (46) I read Article 24(2) of Directive 2004/38 as meaning, on the contrary, that ‘maintenance aid’ covers benefits in kind as well as benefits in cash. In principle, it therefore also covers the OV student card which is in essence a card showing eligibility for paying a lower fare when using public transport. 97. The parties have debated whether the OV student card is a conditional grant or a provisional loan. Since Article 24(2) of Directive 2004/38 applies to both loans and grants, it seems to me that the answer to that question is irrelevant. 98. The Commission has relied heavily on the judgment in Commission v Austria. As I see it, however, the OV student card is different from the reduced tariff fares at issue in that case. Whilst the Court in that judgment emphasised that only maintenance aid for studies consisting in student grants or loans falls under Article 24(2) of Directive 2004/38, (47) it did not in fact explain on what basis it (implicitly) decided that the reduced transport fares were not student grants or loans. Those reasons cannot have pertained to the purpose of the benefit because the Court accepted that the reduced transport fares affected living costs. 99. Rather, Commission v Austria specifically concerned reduced transport fares for which students were eligible only if their parents received Austrian family allowances. (48) Thus, the grant of the benefit depended first on a student’s parents being entitled to a benefit for minor children and for adult children under the age of 26 following vocational training or further training in a specialised educational establishment in relation to the trade they have learned, provided that that training prevented them from working in their trade. 100. The reduced transport fares in Commission v Austria could not fall within the scope of Article 24(2) of Directive 2004/38 because that exception applies solely to grants and loans eligibility for which depends on the claimant’s status as a student and which are to be used to cover maintenance costs incurred in relation only to his studies. 101. Finally, I note that Netherlands study finance as laid down in the Wsf 2000 (and thus consisting of the same components, including the OV student card) was at issue in Förster. (49) Whilst Directive 2004/38 did not (yet) apply to the facts at issue in that case, the Court discussed Article 24(2) and seemed to accept that the Netherlands could limit granting study finance as long as those students had not obtained permanent residence. Did the Court, in so doing, already indirectly accept that Article 24(2) does apply to a benefit such as the OV student card which is an integral part of that study finance? 102. I therefore conclude that the OV student card falls within the scope of ‘maintenance aid for studies’ within the meaning of the derogation from the principle of equal treatment contained in Article 24(2) of Directive 2004/38. It follows that the Netherlands did not infringe that provision by not treating non-Netherlands (vocational) students (both regular students and Erasmus students) on equal terms with Netherlands (vocational) students with respect to the conditions under which it awards the OV student card. I thus conclude that the Commission’s complaint of direct discrimination against non-Netherlands nationals should be dismissed as unfounded. 103. Should the Court agree, that finding is sufficient in the light of the form of order sought for the Court to dismiss the application. In case the Court takes the view that the form of order sought implicitly also includes a request for a declaration that the Netherlands has infringed Article 24(1) of Directive 2004/38, I shall finally examine whether the Commission has established that the Netherlands directly discriminates against non-Netherlands students with regard to the OV student card. Article 24(1) of Directive 2004/38 104. EU law does not require a Member State to provide a system of funding for higher education, whether pursued at an educational institution within its territory or in another Member State. However, where a Member State exercises its competence under Article 165(1) TFEU to provide either or both type(s) of funding, it must do so in compliance with EU law. (50) 105. It is settled case-law that discrimination can arise only through the application of a different rule to comparable situations or the application of the same rule to different situations. (51) Thus, in the present case, it is for the Commission to establish that Netherlands and non-Netherlands (vocational) students are in a comparable situation as regards the treatment at issue, using a criterion based upon factors which are objective and easily identifiable and taking account of the object of the rules establishing the difference in treatment. (52) For that purpose, it is insufficient merely to assert that all students are alike in all respects. For example, should the Court decide that Erasmus and regular (vocational) students are not comparable as regards the OV student card, they might still be comparable in other respects and as regards other forms of treatment. 106. The Netherlands does not appear to deny that non-Netherlands regular (vocational) students are comparable to Netherlands students. As a result, Article 24(1) of Directive 2004/38 requires it to treat them equally. The Netherlands has not done so. The Wsf 2000 and Bsf 2000 both make a distinction based on nationality and subject non-Netherlands nationals to conditions that do not apply to Netherlands nationals. Were the Court to reach the point of examining Article 24(1) without regard to Article 24(2), it should therefore conclude that, as regards those students, the Netherlands has infringed Article 24(1) of Directive 2004/38. 107. What is contested is whether non-Netherlands Erasmus (vocational) students are comparable to Netherlands (vocational) students in the Netherlands. 108. The Commission argues that they are. Its position is that, because Erasmus (vocational) students have some form of registration with the receiving institution (even if they remain officially registered with the sending institution), it must be assumed that they have a genuine connection with the Netherlands for the purposes of obtaining the OV student card. 109. The Commission’s first premiss is that (vocational) students are in a comparable position when they show a genuine connection with the Netherlands. It claims that the judgment in Commission v Austria supports its position. However, the parts of that judgment on which the Commission relies concern the justification of discrimination. That analysis is necessarily predicated upon an earlier finding that two groups of comparable EU citizens are treated differently on the basis of nationality. In Commission v Austria, the Court found there to be unequal treatment between Austrian students and students of other EU nationalities who studied in Austria because the former could more easily fulfil the condition of the grant of Austrian family allowances in order to obtain reduced transport fares. (53) Thus, the Court assumed that, as regards the benefit there at issue, Austrian students and students of other EU nationalities were comparable. However, as I see it, the finding could not be based on the genuine link which all of these students have with Austria. If they had all already had such a connection, there would have been no reason for Austria to apply a measure in order to, precisely, distinguish within that group between those who could show such a link and those who could not. 110. The Commission’s second premiss appears to be that Erasmus (vocational) students are comparable with Netherlands students because they are de facto registered with the receiving institution (even if they remain officially registered with the sending institution). As a result, the Netherlands cannot deny them the OV student card on the basis that Article 2.1(c) of the Wsf 2000 makes access to that card conditional upon registration. This is, quintessentially, an indirect discrimination analysis: a ‘neutral’ condition (registration) is applied to the disadvantage of one group as compared with the other. 111. However, I have already explained that the Commission’s complaint of indirect discrimination is inadmissible. (54) The Commission has not put forward any admissible argument to the effect that the Netherlands indirectly discriminates against non-Netherlands Erasmus (vocational) students by not registering them within the meaning of Article 2.1(c) of the Wsf 2000. Whether the Netherlands is justified in not treating Erasmus students as registered students within the meaning of Article 2.1(c) of the Wsf 2000 is therefore not at issue in this case. 112. Thus, in my opinion, the Commission has not proven its case. 113. The Commission could have presented its case differently. For example, it could have argued that Erasmus students and regular students are comparable because, irrespective of registration and alternative sources of (public or private) funding, the OV student card makes it cheaper for a (vocational) student in the Netherlands to use public transport in the Netherlands and all (vocational) students have a comparable interest in accessing cheaper public transport. The burden would then have shifted to the Netherlands to show (for example) that, unlike regular students, Erasmus students always have funding, that Netherlands students eligible for obtaining the OV card under favourable conditions have no funding otherwise and that this affects their degree of interest in obtaining that access. 114. I express no view as to what would have been the outcome of such an application and such a defence. The plain fact is that that is not how the Commission chose to plead its application. Conclusion 115. In the light of all the foregoing considerations, I am of the opinion that the Court should: – dismiss the application, and – order the Commission to pay the costs. 1 Original language: English. 2 Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, OJ 2005 L 30, p. 27, OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28). 3 See point 61 below. 4 Article 1 of Council Directive 90/366/EEC of 28 June 1990 on the right of residence for students (OJ 1990 L 180, p. 30) originally framed this condition as follows: ‘… where the student assures the relevant national authority, by means of a declaration or by such alternative means as the student may choose that are at least equivalent, that he has sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence, provided that the student is enrolled in a recognised educational establishment for the principal purpose of following a vocational training course there and that they are covered by sickness insurance in respect of all risks in the host Member State’. Following annulment of that directive (by the Court’s judgment in Parliament v Council, C‑295/90, EU:C:1992:294), Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students (OJ 1993 L 317, p. 59) was adopted. Article 1 of that directive contained the same condition. Neither directive established any entitlement to the payment of maintenance grants by the host Member State (Article 3). Both directives stated that beneficiaries must not become an unreasonable burden on the public finances of the host Member State (sixth recital in the preamble to Directive 93/96; fifth recital in the preamble to Directive 90/366). 5 See also recital 21 in the preamble to Directive 2004/38. 6 Decision of 15 June 1987 adopting the European Community Action Scheme for the Mobility of University Students (Erasmus) (OJ 1987 L 166, p. 20). This original decision is no longer in force. See points 12 to 15 below. 7 Article 1(3) of Decision 87/327. 8 Article 1(1) of Decision 87/327. 9 Article 3(1) of Decision 87/327. 10 See Actions 1 and 2 in the Annex to Council Decision 87/327. 11 Regulation of the European Parliament and of the Council of 11 December 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport and repealing Decisions No 1719/2006/EC, No 1720/2006/EC and No 1298/2008/EC (OJ 2013 L 347, p. 50). 12 Article 1(1) of the Erasmus+ Regulation. 13 Article 1(3)(a) of the Erasmus+ Regulation. 14 Defined in Article 2(7) as ‘moving physically to a country other than the country of residence, in order to undertake study, training or non-formal or informal learning’. 15 Article 6(1)(a) of the Erasmus+ Regulation. See also point 14 below. 16 Namely, the Member States and certain third countries by virtue of separate agreements. 17 http://ec.europa.eu/education/opportunities/higher-education/doc/charter_en.pdf. For the purposes of this Opinion, I shall include those students when I speak of ‘Erasmus students’. 18 Although the term ‘Paragraph’ appears to be used for section headings in the Wsf 2000, I shall refer to ‘Section’ in my Opinion. 19 At the hearing, the Netherlands Government explained that an ‘external student’ is a person who might attend some classes on an irregular basis without pursuing regular education. 20 Whether vocational education under the Wsf 2000 has the same meaning as ‘vocational training’ under EU law is not at issue. The latter means ‘… any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary skills for such a profession, trade or employment … whatever the age and the level of training of the pupils or students, even if the training programme includes an element of general education’: judgment in Commission v Council, 242/87, EU:C:1989:217, paragraph 24 and the case-law cited. 21 The provision applies to those who are studying or ‘studerende’ which is defined in Article 1.1.1 of the Wsf 2000 as either a vocational or higher education student. 22 See points 63 to 79 below. 23 Judgment in Commission v Austria, C‑75/11, EU:C:2012:605 (‘Commission v Austria’). 24 See further point 89 and footnote 42 below. 25 See points 43 and 48 above. 26 Judgment in Commission v France, C‑237/12, EU:C:2014:2152, paragraph 48 and the case-law cited. 27 Judgment in Commission v Spain, C‑67/12, EU:C:2014:5, paragraphs 41 and 42 and the case-law cited. 28 Judgment in Commission v Netherlands, C‑252/13, EU:C:2014:2312, paragraphs 28 and 29 and the case-law cited. 29 Judgment in Commission v Portugal, C‑457/07, EU:C:2009:531, paragraph 55. 30 Judgment in Commission v Spain, C‑67/12, EU:C:2014:5, paragraph 52 and the case-law cited. 31 Judgment in Commission v Italy, C‑68/11, EU:C:2012:815, paragraph 49 and the case-law cited. 32 See, for example, judgment in Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 41 and the case-law cited. 33 See judgment in Hervis Sport- és Divatkereskedelmi, C‑385/12, EU:C:2014:47, paragraph 25 and the case-law cited. 34 See judgment in Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 31 and the case-law cited. 35 See, for example, judgment in Förster, C‑158/07, EU:C:2008:630, paragraph 38. 36 See, for example, judgment in Brey, C‑140/12, EU:C:2013:565, paragraphs 46 and 47 and the case-law cited. 37 See judgments in Dano, C‑333/13, EU:C:2014:2358, paragraph 61; N., C‑46/12, EU:C:2013:97, paragraph 33 and the case-law cited; and Commission v Austria, paragraphs 49 and 54 and the case-law cited. 38 Judgment in Jobcenter Berlin Neukölln, C‑67/14, EU:C:2015:597, paragraph 49 and the case-law cited. 39 Judgment in Vatsouras and Koupatantze, C‑22/08 and C‑23/08, EU:C:2009:344, paragraph 34. 40 See, for example, judgments in N., C‑46/12, EU:C:2013:97, paragraph 33, and Commission v Austria, paragraph 54. 41 Judgment in Jobcenter Berlin Neukölln, C‑67/14, EU:C:2015:597, paragraph 51. It also follows that, where a Member State relies on Article 24(2), it is not necessary to establish first that there is discrimination (and thus that there is different treatment of comparable categories of EU citizens) before examining the application of Article 24(2). 42 See the Dutch language version of the Commission’s application and reply. The fact that the Commission refers to Article 24 of Directive 2004/38 on the cover page of its application and reply and in the French translations of the form of order sought in those documents cannot alter the complaint. 43 See judgment in Commission v Austria, paragraphs 43 and 55. 44 See judgment in Dano, C‑333/13, EU:C:2014:2358, paragraphs 77 to 79. See also the Explanatory Memorandum to the Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM(2001)257 final – COD 2001/0111), explanation on Article 21. 45 Judgment in Commission v Austria, paragraph 55. 46 Opinion of Advocate General Kokott in Commission v Austria, C‑75/11, EU:C:2012:536, point 70. 47 Judgment in Commission v Austria, paragraph 55. 48 Judgment in Commission v Austria, paragraph 24. 49 Judgment in Förster, C‑158/07, EU:C:2008:630, paragraphs 55 to 59. 50 Judgment in Martens, C‑359/13, EU:C:2015:118, paragraphs 23 and 24 and the case-law cited. See also, for example, judgment in Bressol and Others, C‑73/08, EU:C:2010:181, paragraphs 28 and 29 and the case-law cited. 51 See, for example, judgment in Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 41 and the case-law cited. 52 See, for example, judgments in Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 42, and Kleist, C‑356/09, EU:C:2010:703, paragraph 34 and the case-law cited. 53 Judgment in Commission v Austria, paragraph 50 and the case-law cited. 54 See points 66 to 73 above.