OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 26 January 2016 ( 1 )

Case C‑233/14

European Commission

v

Kingdom of the Netherlands

‛Freedom of movement of citizens of the Union — Equal treatment — Access to preferential fares for public transport — EU students, including Erasmus students — Articles 18, 20 and 21 TFEU — Article 24 of Directive 2004/38/EC — Admissibility’

1. By its application under Article 258 TFEU, the European Commission in essence asks the Court to declare that the Kingdom of the Netherlands (‘the Netherlands’) has failed to fulfil its obligations under Articles 18, 20 and 21 TFEU and Article 24(2) of Directive 2004/38/EC ( 2 ) because it makes available cards offering access to cheaper fares for public transport (‘the OV student card’) to non-Netherlands citizens of the Union studying in the Netherlands (that is, Erasmus students and students outside the context of the Erasmus programme (‘regular students’)) ( 3 ) under less favourable conditions than those that apply to Netherlands nationals studying in the Netherlands.

EU law

Treaty on the Functioning of the European Union

2. The first paragraph of Article 18 TFEU prohibits any discrimination on grounds of nationality ‘[w]ithin the scope of application of the Treaties, and without prejudice to any special provisions contained therein …’.

3. Article 20(1) TFEU establishes citizenship of the Union. Every person holding the nationality of a Member State is a citizen of the Union. Article 20(2) TFEU states that citizens of the Union are to ‘… enjoy the rights and be subject to the duties provided for in the Treaties’, including ‘the right to move and reside freely within the territory of the Member States’ (Article 20(2)(a) TFEU). Moreover, these rights are to be exercised ‘… in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder’.

4. Article 21(1) TFEU provides: ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’

5. Article 165(1) TFEU provides: ‘The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action’, subject to the Member States’ responsibility ‘for the content of teaching and the organisation of education systems …’. According to the second indent of Article 165(2) TFEU, Union action is also to be aimed at ‘encouraging mobility of students’. In order to contribute to the objectives set out in Article 165 TFEU, the first subparagraph of Article 165(4) TFEU provides that the European Parliament and the Council of the European Union are to adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States. A similar provision appears in Article 166(4) TFEU as regards vocational training policy.

Directive 2004/38

6. Directive 2004/38 applies to ‘… all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members … who accompany or join them’ (Article 3(1)).

7. According to recital 10 in the preamble to Directive 2004/38, ‘[p]ersons exercising their right of residence should not … become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence’ and ‘[t]herefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions’.

8. As a general rule, pursuant to Article 16 of Directive 2004/38, EU citizens acquire the right of permanent residence in a host Member State after five years of continuous legal residence there. Before then, they have the right to reside on the territory of another Member State for a period longer than three months subject to conditions. In particular, Article 7(1)(c) of Directive 2004/38 provides for such right of residence for Union citizens who ‘… are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training’ and who ‘… have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence’. ( 4 )

9. Article 24 of Directive 2004/38 provides: ‘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.’ ( 5 )

EU law governing the Erasmus programme

10. Council Decision 87/327/EEC ( 6 ) established the ‘Erasmus programme’, to be implemented from 1 July 1987, ( 7 ) with the objective of significantly improving mobility of university students in (what was then) the Community and promoting greater cooperation between universities. ( 8 ) An annex to that decision set out how the Commission was to implement the Erasmus programme. ( 9 )

11. Implementing the Erasmus programme involved setting up a European network for university cooperation, composed of universities which, within the framework of the Erasmus programme, had concluded agreements to exchange students and teachers with universities of other Member States and which recognised study periods completed outside the home university. The aim of these inter-university agreements was to give students of one university the opportunity, as an integral part of their diploma or academic qualification, to undertake a fully recognised period of study in at least one other Member State. For each of these joint programmes, participating universities were to receive annual support. The Community was also to introduce an Erasmus student grants scheme offering direct financial support to students participating in the programme (‘Erasmus students’), to be administered through competent authorities in the Member States. The grants were to be issued on certain conditions, which included the following. The grants were to cover mobility costs (that is, travel costs), foreign language preparation as necessary and any higher cost of living in the host country. No tuition fees were to be charged by the host university and, where appropriate, grant holders were to continue to pay tuition fees at their home university. Maintenance grants available to a student in his own country were to continue to be paid to Erasmus students during their period of study at the host university. ( 10 )

12. Although the Erasmus programme has undergone many changes, its essential features appear to have remained the same. At present, it forms part of the umbrella programme called ‘Erasmus+’, which is a single programme in the field of education, training, youth and sport. Regulation (EU) No 1288/2013 (‘the Erasmus+ Regulation’) ( 11 ) established Erasmus+ (‘the Erasmus+ Programme’) ( 12 ) on the basis of Articles 165(4) and 166(4) TFEU. The Erasmus+ Programme covers, inter alia, ‘education and training at all levels, in a lifelong learning perspective’ which includes ‘higher education (Erasmus)’. ( 13 )‘Learning mobility of individuals’ ( 14 ) is one of the types of action through which that regulation promotes its objectives in the field of education and training. ( 15 ) Article 1(2) provides that the programme should operate during the period from 1 January 2014 to 31 December 2020.

13. Recital 40 in the preamble to the Erasmus+ Regulation states that ‘[i]n order to enhance access to the [Erasmus+ Programme], the grants to support the mobility of individuals should be adjusted to the living and subsistence costs of the host country’.

14. In accordance with Article 7(1)(a) of the Erasmus+ Regulation, learning mobility of individuals involves support for ‘the mobility of students in all cycles of higher education and of students, apprentices and pupils in vocational education and training [which] may take the form of studying at a partner institution or traineeships or gaining experience as an apprentice, assistant or trainee abroad’ within the Erasmus+ Programme countries referred to in Article 24(1). ( 16 )

15. In accordance with Article 18(7) of the Erasmus+ Regulation, funds for the learning mobility of individuals are to be managed by a national agency or agencies and are to be allocated on the basis of population and cost of living in the Member State, distance between capitals of Member States and performance.

16. The Erasmus+ Student Charter is an explanatory document prepared by the Commission for students participating in the Erasmus+ programme. ( 17 ) It explains the rules governing participation in such a programme. Each student is to sign (i) a grant agreement (even if the student does not receive financial support from EU funds), in principle with the sending institution in the home State where the student is registered, and (ii) a learning agreement with that sending institution as well as the receiving institution in the host State. The second agreement sets out the details of the student’s planned activities abroad, including the credits to be earned that will count towards the student’s home degree. The Erasmus+ Student Charter further states that the receiving institution will not ask the student to pay fees for tuition, registration, examinations or access to laboratory and library facilities during the period when the student studies at the receiving institution in the host State. The student may, however, be charged a small fee on the same basis as local students for costs such as insurance, access to student unions and the use of study-related materials or equipment. Furthermore, the grant or loan from the home State is to be maintained.

Netherlands law

17. The Law on Study Finance 2000 (Wet Studiefinanciering 2000, ‘the Wsf 2000’) sets out the scope of, and the conditions for, financing studies (‘study finance’) in the Netherlands and abroad. The Decision on Study Finance 2000 (Besluit studiefinanciering 2000, ‘the Bsf 2000’) implements that law. Article 2.1 of the Wsf 2000 states that those conditions concern nationality (Article 2.2), age (Article 2.3) and type of education (Sections 2.2 to 2.4 ( 18 )).

18. Article 1.1.1 of the Wsf 2000 defines a ‘student’ as a person who pursues higher education and is not an external student ( 19 ) and a ‘participant’ as a person who pursues vocational education. ( 20 ) In what follows, I shall refer to these two groups as, respectively, ‘higher education students’ and ‘vocational students’.

19. Article 2.2.1 of the Wsf 2000 states that those eligible for study finance are: vocational and higher education students ( 21 ) who are Netherlands nationals; non-Netherlands nationals who are treated as Netherlands nationals as regards study finance, in accordance with a treaty or a decision of an international organisation; and non-Netherlands nationals who reside in the Netherlands and belong to a group of persons who must be treated, as regards study finance, equally with Netherlands nationals. Article 2.2.2 of the Wsf 2000 provides that, as regards the second category, a separate measure may provide that equal treatment is limited to an amount to cover the costs of access to education.

20. In accordance with Article 2.3 of the Wsf 2000, vocational and higher education students are in principle eligible for study finance between the ages of 18 to 30.

21. The education condition in Article 2.1(c) of the Wsf 2000 refers to the education described in Sections 2.2 to 2.4 of the Wsf 2000. Those sections cover vocational education and higher education both in the Netherlands and abroad. From them, it appears that vocational and higher education students need to be registered with relevant institutions in order to be eligible for study finance.

22. Article 3.1.1 of the Wsf 2000 states that study finance may consist of a basic grant, a basic loan and an additional grant or loan. Study finance for higher education students (as distinct from vocational students) also includes a ‘collegegeldkrediet’ or college tuition credit which is defined in Article 1.1.1 of the Wsf 2000 as a loan for payment of college tuition in higher education. According to Article 3.1.2 of the Wsf 2000, study finance may be granted completely or partly in the form of a grant, a loan or a ‘prestatiebeurs’ (a ‘performance grant’ defined in Article 1.1.1 of the Wsf 2000 as a loan with interest which, under certain conditions, can be converted into a grant without the interest being payable). Article 3.1.3 of the Wsf 2000 states that the amount of the study finance is fixed on the basis of a budget for a calendar month; for higher education students, the college tuition credit is also taken into account.

23. Article 3.2.1 of the Wsf 2000 sets the budget of a vocational student for a calendar month at the sum of amounts covering living expenses, the costs of tuition and travel costs. Pursuant to Article 3.3.1 of the Wsf 2000, the budget for a higher education student is the sum of amounts to cover living expenses and travel costs.

24. Article 3.6.2 of the Wsf 2000 provides that, unless otherwise stated, the amount for travel costs forms part of the basic grant.

25. For studies in the Netherlands (Article 3.7.1 of the Wsf 2000), the amount to cover travel costs is given in the form of a right to use public transport during a part of the week either free of charge or at a reduced fare. For studies outside the Netherlands (Article 3.7.2 of the Wsf 2000), it is given in the form of a sum of money as defined in Articles 4.8.1 and 5.3.1 of the Wsf 2000. The latter provisions state the conditions under which the amount for travel costs is given to, respectively, vocational students and higher education students as a performance grant.

26. Article 3 of the Bsf 2000 sets out which non-Netherlands nationals are to be treated on a par with Netherlands nationals. Articles 3a and 3b of the Bsf 2000, which deal with (respectively) vocational students and higher education students, identify which non-Netherlands nationals are to be treated in certain respects only in the same way as Netherlands nationals. The first paragraph of each of those provisions states that treatment as Netherlands nationals within the meaning of Article 2.2.2 of the Wsf 2000 is limited to the provision of an amount covering costs of access to education for students who: (i) hold the nationality of a State which is party to the European Economic Area (‘the EEA’) or Switzerland (and their family members); (ii) are not workers, self-employed persons, persons having maintained the status of worker or self-employed person and their family members; and (iii) do not enjoy permanent residence within the meaning of Article 16 of Directive 2004/38. As regards vocational students, Article 3a.2 of the Bsf 2000 states that that amount is to be awarded in the form of a grant equivalent to the amount of the basic grant for a vocational student living at home. The final sentence of that provision further states that, inter alia, the amount for travel costs does not form part of that amount. As regards higher education students, Article 3b.2 provides that that amount is awarded in the form of a college tuition credit.

27. Article 7.37.2 of the Law on Higher Education and Scientific Research (Wet op het hoger onderwijs en wetenschappelijk onderzoek) explains what constitutes registration with a recognised educational institution. A condition for registration is that proof is produced to show that the college tuition fees due are or will be paid.

Pre-litigation proceedings

28. On 3 November 2008, the Commission received a complaint from a British national that Erasmus students who spend part of their studies in the Netherlands must pay the full fare for internal public transport whereas Netherlands students enjoy a preferential fare.

29. The Commission then sent a letter of formal notice dated 19 March 2009, complaining that the Netherlands had infringed, inter alia, Article 24 of Directive 2004/38 and Articles 12, 17 and 18 EC (now Articles 18, 20 and 21 TFEU).

30. By a letter dated 15 May 2009, the Netherlands responded that it relied on the derogation in Article 24(2) of Directive 2004/38. It further stated that Erasmus students are in essence not comparable to regular students who are registered at an accredited educational institution in the Netherlands and that it treats migrant workers on the same terms as Netherlands nationals.

31. In its reasoned opinion of 28 January 2010, the Commission maintained its view that the Netherlands had infringed Article 18 TFEU and Article 24 of Directive 2004/38. It also argued that the OV student card does not fall within the scope of Article 24(2) of Directive 2004/38, even if it accepted that that card covers maintenance costs. The Netherlands was asked to take the necessary measures to comply with the reasoned opinion within two months of its receipt.

32. In its response dated 28 May 2010, the Netherlands repeated that Article 24(2) of Directive 2004/38 allowed it to refuse to grant Erasmus students the OV student card. If the study finance mechanism were considered to be indirectly discriminatory, such discrimination was justified.

33. The Commission sent the Netherlands Government an additional reasoned opinion dated 26 January 2012. The Commission there indicated that its complaint concerned all non-Netherlands students in the Netherlands, not only Erasmus students. The Commission claimed that the legislation at issue resulted in direct discrimination. It also rejected the Netherlands’ justification for its indirectly discriminatory legislation.

34. The Netherlands Government, which was again asked to take the necessary measures to comply with the additional reasoned opinion within two months of its receipt, reacted in a letter dated 27 March 2012. It stressed the need to distinguish between Erasmus and regular students and contested the Commission’s allegation that Erasmus students are registered with a Netherlands educational institution.

Procedure before the Court

35. The Commission asks the Court to declare that, by making public transport passes with preferential fares for students who pursue their studies in the Netherlands (that is, the OV student cards) available only to (i) Netherlands students who are registered with private and public educational establishments in the Netherlands and (ii) students from other Member States who are economically active or have obtained a permanent right of residence in the Netherlands, the Netherlands has failed to fulfil its obligations under Article 18 TFEU (in conjunction with Articles 20 and 21 TFEU) and Article 24(2) of Directive 2004/38. The Commission also asks the Court to order the Netherlands to pay the costs.

36. The Netherlands asks the Court to declare the application inadmissible in so far as it concerns indirect discrimination and Netherlands students residing outside the Netherlands. It also contends that the conditions under which it grants the OV student card do not discriminate between Netherlands students and other EU students. The Netherlands further asks that the Commission be ordered to pay the costs.

Parties ’ arguments

37. As I explain later, ( 22 ) there are major issues regarding the admissibility of the Commission’s application. Partly these arise from the manner in which the Commission has presented its complaint. That presentation also affects my description of, in particular, the Commission’s arguments.

Admissibility

38. The Netherlands emphasises that the application and reasoned opinion in Article 258 TFEU proceedings must be based on the same grounds and submissions and set out the complaints coherently and precisely. The Commission’s application does not satisfy those requirements.

39. In one part of its application, the Commission appears to complain that Netherlands Erasmus students in the Netherlands suffer indirect discrimination as compared to non-Netherlands students in the Netherlands. However, elsewhere in its application it complains about the treatment of non-Netherlands Erasmus students. The Netherlands argues that the Commission has not properly identified the group(s) of students against whom the Netherlands allegedly discriminates and in what manner. The documentation from the pre-litigation stage is equally unclear and confusing and suggests that the Commission’s complaint of indirect discrimination in its application is new.

40. As regards the Commission’s complaint about treatment of Netherlands students residing abroad, the Netherlands notes that a section of the Commission’s application is entitled ‘Students other than Erasmus students — regular foreign students including Netherlands students living abroad’. The Netherlands cannot identify what the Commission’s position is regarding those students or the basis for the alleged discrimination. For the sake of completeness, the Netherlands points out that Netherlands students residing abroad are eligible for study finance (including the OV student card) if they are registered for full-time studies at a recognised educational institution in the Netherlands and are under 30 years old when they apply for the study finance.

41. The Netherlands submits that the lack of clarity of the Commission’s complaint about indirect discrimination renders it difficult, if not impossible, for it to present a defence: the complaint is not set out coherently and precisely and the considerations set out in the reasoned opinion do not correspond with those presented in the application.

42. The Commission counters that its reasoned opinion and additional reasoned opinion show that, during the pre-litigation stage, the Commission did not exclude the possibility that the Netherlands legislation might also constitute indirect discrimination. The Commission’s position as set out in its application is but a further elaboration of its position during the pre-litigation stage; it cannot be characterised as a new complaint.

43. In the light of the Netherlands’ clarification that Netherlands students residing abroad who register for full-time studies with a Netherlands educational institution and satisfy the age condition are entitled to study finance, including the OV student card, the Commission accepts that there is no discrimination against such students. Whilst the Commission thus no longer pursues that claim, it maintains the claim as regards non-Netherlands regular students.

Substance

44. The Commission submits that the Netherlands directly discriminates against non-Netherlands students who are not workers or self-employed and do not maintain that status (or their family members) and are not permanent residents in the Netherlands. Unlike Netherlands students, those students cannot enjoy the benefit of an OV student card. The fact that, to obtain the card, all students must also satisfy two further conditions does not alter that direct discrimination.

45. By denying the OV student card to non-Netherlands Erasmus students residing in the Netherlands (whilst granting the same card to Netherlands students living in the Netherlands), the Netherlands has infringed Article 24(2) of Directive 2004/38. The Commission relies on paragraphs 61, 62 and 64 of the Court’s judgment in Commission v Austria, ( 23 ) which was delivered on 4 October 2012 and thus after the pre-litigation phase had ended.

46. Whilst the Commission accepts that Erasmus students are and remain registered with the sending educational institution, it considers that to be irrelevant. The Erasmus+ Student Charter requires every student to be treated by the receiving institution in the same way as its own students. Admittedly, Erasmus students do not pay registration fees to the receiving institution. However, they do enjoy, during the period of study abroad, all of the services related to registration with that institution, such as seminars, registration, examination, access to laboratory facilities and libraries. On that basis, the Commission considers that Erasmus students are de facto registered in the Netherlands and thus satisfy the conditions for receiving an OV student card. In response to the Netherlands’ position that Erasmus students are not objectively comparable to regular students, the Commission relies on paragraph 61 of the judgment in Commission v Austria in order to argue that students are objectively comparable if the student shows that there is a genuine connection with the host Member State.

47. In its application, the Commission states that, because the Netherlands is unique in giving this type of benefit, there is no risk of a student receiving financial support for travel costs from both the home and the host Member States. However, at the hearing, the Commission suggested that a significant number of Member States provide for similar cards but, for one reason or another, refuse to award them.

48. The Commission also argues that a Netherlands student who registers to study abroad but decides to spend part of his studies as an Erasmus student in the Netherlands is not in a comparable situation to what the Commission referred to as a ‘standard’ non-Netherlands Erasmus student. The former is entitled to funding to study abroad (‘meeneembare studie financiering’ or ‘MNSF’), that is to say, ‘portable’ funding for studies, which comprises an amount corresponding to the value of an OV student card. The latter is not given that amount. Based on these considerations, the Commission considers that there is ‘clearly’ direct discrimination based on nationality, which is contrary to Article 21 TFEU and Article 24(2) of Directive 2004/38. At the hearing, in response to a question on exactly that part of its application, the Commission declared that the part of its reply where it abandoned its complaint of discrimination against Netherlands students residing abroad who register with an educational institution to study in the Netherlands also covered this part.

49. In the part of its application entitled ‘Erasmus students — indirect discrimination’, the Commission describes the Netherlands position as being that there is no indirect discrimination against non-Netherlands Erasmus students because Netherlands Erasmus students registered to study abroad who study in the Netherlands as part of their Erasmus programme are also not entitled to travel costs. The Commission considers that, in the limited number of cases where a Netherlands national studying abroad decides to pursue an Erasmus programme in the Netherlands, such a student will not receive an amount for travel costs because he also receives portable study finance for his studies abroad, which includes an element to cover travel costs. Because non-Netherlands Erasmus students are not entitled to travel costs, it follows that the Netherlands indirectly discriminates against such students, contrary to Article 21 TFEU and Article 24(2) of Directive 2004/38.

50. The Commission also attacks the Netherlands’ treatment of regular students. In response to the Netherlands’ position that Article 24(2) of Directive 2004/38 covers the OV student card, the Commission refers to paragraphs 53 to 55 of the judgment in Commission v Austria, from which (it claims) it follows that the Court has accepted that a student discount of transport fares is (i) not a grant or loan within the meaning of Article 24(2) of Directive 2004/38 but (ii) a different form of maintenance aid within the meaning of that provision. The fact that the travel costs are granted initially as a conditional loan does not automatically bring that benefit within the exception in Article 24(2). Since the loan needs to be repaid only in limited circumstances, the benefit should be characterised as a conditional grant which does not fall within the scope of that provision.

51. The Netherlands submits that the complaint as regards non-Netherlands regular students and Erasmus students is unfounded.

52. As regards non-Netherlands regular students, the Netherlands relies on Article 24(2) of Directive 2004/38. It is common ground that the OV student card is maintenance aid; and the Netherlands submits that it constitutes a student grant or loan. Whether the OV student card is characterised as a conditional loan or, as the Commission proposes, a conditional grant is immaterial. Either way, the Netherlands may rely on the exception under Article 24(2). The Commission’s reliance on the judgment in Commission v Austria is misplaced. That case concerned a discount on travel costs for students whose parents received Austrian child benefits; it had no connection to study finance. In its written observations, the Netherlands argues that that defence applies also to non-Netherlands Erasmus students, but only as a subsidiary argument. However, at the hearing, the Netherlands Government appeared to rely, with respect also to this group, first on Article 24(2) before turning to Article 24(1) of Directive 2004/38.

53. The Netherlands asks the Court to reject the complaint of direct discrimination against non-Netherlands Erasmus students as unfounded. That group of students is not objectively comparable to Netherlands students. During their Erasmus stay abroad, they remain registered with the educational institution in their home Member State and they are not liable to pay tuition fees at the receiving educational institution. Their home Member State remains responsible for their financial support. Thus, no Erasmus student, irrespective of nationality, receives Netherlands study finance (including the OV student card). Moreover, Erasmus students receive from their home Member State an Erasmus grant which is intended to finance the additional costs of studying abroad. The level of that grant depends, inter alia, on the level of maintenance costs in the host Member State. There is therefore, according to the Netherlands, no discrimination.

54. The Netherlands also disagrees with the Commission’s argument that Erasmus students are de facto registered with an educational institution in the Netherlands. True, Erasmus students need to comply with certain formalities, but those are purely administrative and do not suffice to render an Erasmus student eligible for study finance.

55. In the light of the Commission’s reply, the Netherlands further submits that the Commission has misinterpreted paragraphs 61 to 64 of the judgment in Commission v Austria. Article 24(2) of Directive 2004/38 does not require a genuine connection with the host Member State to be shown through registration with an educational institution there. In any event, those paragraphs of the judgment relate to the justification of the indirect discrimination at issue in that case. They do not address criteria for establishing whether or not there is (direct) discrimination.

56. According to the Netherlands, the Commission applies the wrong methodology for determining what are objectively comparable categories of students. What matters is not the degree to which some groups are or are not comparable, but whether, from the perspective of the national law at issue, there is a comparable situation. In the present case, the law at issue is the law governing study finance. Erasmus students are not objectively comparable with the group of students who have paid college fees in the Netherlands, are registered with an educational institution there and, on that basis, are eligible for study finance. Alternatively, should the Court find that the two groups are comparable, the Netherlands relies again on Article 24(2) of Directive 2004/38.

57. Finally, in response to questions at the hearing, both the Commission and the Netherlands took the position that Erasmus students reside in the Netherlands on the basis of Article 7(1)(c) of Directive 2004/38.

Analysis

Preliminary remarks

58. In essence, the success of the Commission’s application depends on whether it has established that the Netherlands treats non-Netherlands students less favourably than comparable Netherlands students as regards the OV student card. This OV student card is a means of administering the scheme of reduced (public) transport fares because it is proof of a student’s eligibility for such fares. The Wsf 2000 defines the corresponding monetary value of the card.

59. The form of order sought by the Commission (found on the final page of its application) is that the Netherlands has infringed Articles 18, 20 and 21 TFEU as well as Article 24(2) of Directive 2004/38 ( 24 ) by limiting the benefit of the OV student card to Netherlands students who are registered with a private or public educational institution and students of other nationalities who are economically active in the Netherlands or have obtained the right of permanent residence in the Netherlands. That wording identifies who receives the card rather than who does not receive it. By implication, however, the Commission is complaining about discrimination against students of other nationalities who are registered with a private or public education institution (presumably in the Netherlands) and more broadly against all students of other nationalities (irrespective of registration with an educational institution but again presumably studying in the Netherlands) who are not economically active and/or are not permanent residents in the Netherlands.

60. That formulation differs from the description of the subject-matter of the action on the cover page of the Commission’s application, which is repeated at paragraph 1 of both its application and its reply. There, the Commission states in essence that the Netherlands grants the OV student card only to Netherlands students and students of other nationalities who reside in the Netherlands, who are economically active or have obtained a right of permanent residence there. From this formulation, it would appear that the Commission is complaining about discrimination against students of other nationalities (irrespective of registration with an educational institution but presumably studying in the Netherlands) who do not reside in the Netherlands (and thus have also not obtained a right of permanent residence) and are not economically active. That group of students appears to be both wider (no reference is made to registration with an educational institution) and narrower (it concerns only students who do not have any form of residence in the Netherlands) than that identified in the form of order sought. Ultimately, what matters is the form of order sought in the application.

61. During the course of the proceedings, the Commission abandoned parts of its complaint. ( 25 ) Thus, in its reply, the Commission dropped the claim of discrimination against Netherlands students who reside abroad but are registered for a full-time course at an accredited educational institution in the Netherlands. It accepts that such students are treated in the same way as Netherlands students who reside and study in the Netherlands. (Whether that implies that the Commission was initially complaining about discrimination on grounds of nationality between Netherlands students is unclear but of no further relevance to this case.) At the hearing, when asked to clarify the part of its application relating to the treatment of non-Netherlands Erasmus students and Netherlands nationals who are registered with an educational institution abroad but complete part of their studies in the Netherlands as Erasmus students, the Commission responded that it had also abandoned its claim of discrimination as regards those Netherlands students. As a result, it seems to me that the Court is finally being asked to consider the Commission’s application only in so far as it alleges discrimination based on nationality against non-Netherlands regular students and Erasmus students in the Netherlands.

62. It is against that background that I consider first whether the Commission’s action is admissible.

Admissibility

63. It is well established that an application based on Article 258 TFEU must contain a sufficiently clear and precise statement of the subject-matter of the proceedings and a 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.