EN Official Journal of the European Union C 225/24

Judgment of the Court (Fifth Chamber) of 20 June 2013 (request for a preliminary ruling from the Tribunal administratif, Luxembourg) — Elodie Giersch, Benjamin Marco Stemper, Julien Taminiaux, Xavier Renaud Hodin, Joëlle Hodin v État du Grand-Duché de Luxembourg

(Case C-20/12) (1)

(Freedom of movement for persons - Equal treatment - Social advantages - Regulation (EEC) No 1612/68 - Article 7(2) - Financial aid for higher education studies - Condition of residence in the Member State granting the assistance - Refusal to grant the aid to students, who are European Union citizens not residing in the Member State concerned, whose father or mother, a frontier worker, works in that Member State - Indirect discrimination - Justification - Objective of increasing the proportion of residents with a higher education degree - Whether appropriate - Proportionality)

2013/C 225/39

Language of the case: French

Referring court

Tribunal administratif

Parties to the main proceedings

Applicants: Elodie Giersch, Benjamin Marco Stemper, Julien Taminiaux, Xavier Renaud Hodin, Joëlle Hodin

Defendant: État du Grand-Duché de Luxembourg

Intervening party: Didier Taminiaux

Re:

Request for a preliminary ruling — Tribunal administratif (Luxembourg) — Interpretation of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475) — Whether national legislation making the grant of financial aid for higher education dependent on a condition of residence which applies both to home students and to students from another Member State is permissible — Social advantage within the meaning of the abovementioned regulation — Difference in treatment between the children of national workers and the children of migrant workers — Reasons

Operative part of the judgment

Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, as amended by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, must be interpreted as precluding, in principle, legislation of a Member State such as that at issue in the main proceedings, which makes the grant of financial aid for higher education studies conditional upon residence by the student in that Member State and gives rise to a difference in treatment, amounting to indirect discrimination, between persons who reside in the Member State concerned and those who, not being residents of that Member State, are the children of frontier workers carrying out an activity in that Member State.

While the objective of increasing the proportion of residents with a higher education degree in order to promote the development of the economy of that same Member State is a legitimate objective which can justify such a difference in treatment and while a condition of residence, such as that provided for by the national legislation at issue in the main proceedings, is appropriate for ensuring the attainment of that objective, such a condition nevertheless goes beyond what is necessary in order to attain the objective pursued, to the extent that it precludes the taking into account of other elements potentially representative of the actual degree of attachment of the applicant for the financial aid with the society or with the labour market of the Member State concerned, such as the fact that one of the parents, who continues to support the student, is a frontier worker who has stable employment in that Member State and has already worked there for a significant period of time.

(1) OJ C 98, 31.3.2012.