Andreas Ingemar Thiele Meneses v Region Hannover.
Date: 2013-10-24
18. First of all, it must be recalled that, as a German national, Mr Thiele Meneses enjoys the status of a citizen of the Union under Article 20(1) TFEU and may therefore rely on the rights conferred on those having that status, including against his Member State of origin (see, Case C-192/05 Tas-Hagen and Tas  [2006] ECR I‑10451, paragraph 19; Joined Cases C‑11/06 and C‑12/06 Morgan and Bucher  [2007] ECR I‑9161, paragraph 22; and Joined Cases C-523/11 and C-585/11 Prinz and Seeberger  [2013] ECR I‑0000, paragraph 23 and the case-law cited).
19. As the Court has held on numerous occasions, the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy as regards the material scope of the FEU Treaty the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraph 28; Case C‑46/12 N.  [2013] ECR I-0000, paragraph 27; and Prinz and Seeberger , paragraph 24 and the case-law cited).
20. The situations falling within the scope of EU law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU ( Morgan and Bucher , paragraph 23, and Prinz and Seeberger , paragraph 25 and the case-law cited).
21. In that respect, although the Member States are competent, under Article 165(1) TFEU, as regards the content of teaching and the organisation of their respective education systems, they must exercise that competence in compliance with EU law and, in particular, in compliance with the Treaty provisions on the freedom to move and reside within the territory of the Member States, as conferred by Article 21(1) TFEU on all citizens of the European Union (see, Morgan and Bucher , paragraph 24, and Prinz and Seeberger , paragraph 26 and the case-law cited).
22. Next, it should be recalled that national legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State constitutes a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union (Case C‑406/04 De Cuyper  [2006] ECR I‑6947, paragraph 39, Morgan and Bucher , paragraph 25, and Prinz and Seeberger , paragraph 27).
23. Indeed, the opportunities offered b y the Treaty in relation to freedom of movement for citizens of the Union cannot be fully effective if a national of a Member State can be deterred from availing himself of them because of obstacles placed in the way of his stay in another Member State by legislation of his State of origin penalising the mere fact that he has used those opportunities (see, to that effect, D’Hoop , paragraph 31; Case C‑224/02 Pusa  [2004] ECR I‑5763, paragraph 19; Morgan and Bucher , paragraph 26; and Prinz and Seeberger , paragraph 28).
24. That consideration is particularly important in the field of education in view of the aims pursued by Article 6(e) TFEU and the second indent of Article 165(2) TFEU, namely, inter alia, encouraging mobility of students and teachers (see D’Hoop , paragraph 32; Case C-147/03 Commission  v Austria [2005] ECR I‑5969, paragraph 44; Morgan and Bucher , paragraph 27; and Prinz and Seeberger , paragraph 29).
25. In that regard, it must be noted that EU law does not impose any obligation on the Member State to provide a system of education or training grants for studies in another Member State. However, where a Member State provides for a system of education or training grants which enables students to receive such grants, it must ensure that the detailed rules for the award of those grants do not create an unjustified restriction of the right to move and reside within the territory of the Member States (see Morgan and Bucher , paragraph 28, and Prinz and Seeberger , paragraph 30).
27. It must be held that a condition of permanent residence, like that laid down in Article 5(2) of the BAföG, even though it applies without distinction to German nationals and other citizens of the European Union, constitutes a restriction on the right to freedom of movement and residence enjoyed by all citizens of the Union pursuant to Article 21 TFEU (see, to that effect, Prinz and Seeberger , paragraph 31). The existence of that restriction is not affected by the fact that the legislation at issue in the main proceedings, at Paragraph 6 of the BAföG, provides for the possibility for nationals to derogate from that condition in specific circumstances which are clearly delimited, thus failing to ensure that those nationals have full enjoyment of their right to freedom of movement and residence.
28. Such legislation is thus likely to dissuade European Union nationals from exercising their right to freedom of movement and residence in another Member State, given the impact that exercising that freedom is likely to have on the right to the education or training grant ( Prinz and Seeberger , paragraph 32).
29. The restriction flowing from the legislation at issue in the main proceedings can be justified in the light of EU law only if it is based on objective considerations of public interest independent of the nationality of the persons concerned and if it is proportionate to the legitimate objective pursued by the provisions of national law (see De Cuyper , paragraph 40; Morgan and Bucher , paragraph 33; and Prinz and Seeberger , paragraph 33). It follows from the case-law of the Court that a measure is proportionate if, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain that objective ( De Cuyper , paragraph 42; Morgan and Bucher , paragraph 33; and Prinz and Seeberger , paragraph 33).
34. In that regard, it must be noted that both the integration of students and the wish to establish that there is a connection between the society of the Member State concerned and the recipient of a benefit such as that at issue in the main proceedings can constitute objective considerations of public interest which are capable of justifying the fact that the conditions for the grant of the benefit may affect the freedom of movement of the citizens of the Union (see, by analogy, D’Hoop , paragraph 38; Tas‑Hagen and Tas , paragraph 35; Case C‑499/06 Nerkowska  [2008] ECR I‑3993, paragraph 37; and Case C‑103/08 Gottwald  [2009] ECR I‑9117, paragraph 32).
35. The Court has recognised that it may be legitimate for a Member State, in order to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State, to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State, and if a risk exists of such an unreasonable burden, theoretically, similar considerations may apply as regards the award by a Member State of education or training grants to students wishing to study in other Member States (Case C‑209/03 Bidar  [2005] ECR I‑2119, paragraphs 56 and 57; Morgan and Bucher , paragraphs 43 and 44; and Prinz and Seeberger , paragraph 36).
36. However, according to settled case-law, the proof required to demonstrate the genuine link must not be too exclusive in nature or unduly favour one element which is not necessarily representative of the real and effective degree of connection between the claimant and the Member State, to the exclusion of all other representative elements (see, to that effect, D’Hoop , paragraph 39; Case C‑503/09 Stewart  [2011] ECR I‑6497, paragraph 95; Case C‑75/11 Commission  v Austria  [2012] ECR I‑0000, paragraph 62; Case C‑20/12 Giersch and Others [2013] ECR I‑0000, paragraph 76; and Prinz and Seeberger , paragraph 37).
37. In relation to the extent to which the recipient of a benefit is connected with the society of the Member State concerned, the Court has held that, with regard to benefits that are not governed by EU law, such as those at issue in the main proceedings, Member States enjoy a broad discretion in deciding which criteria are to be used when assessing the extent of that connection (see, to that effect, Tas-Hagen and Tas , paragraph 36, and Gottwald , paragraph 34).
38. In that regard, the Court has already held that a sole condition of permanent residence, such as that at issue in the case in the main proceedings, risks excluding from the funding in question students who, despite not having resided in Germany for an uninterrupted period of three years immediately prior to studying abroad, are nevertheless sufficiently connected to German society. That may be the case where the student is a national of the Member State concerned and was educated there for a significant period or on account of other factors such as, in particular, his family, employment, language skills or the existence of other social and economic factors (see, to that effect, Prinz and Seeberger , paragraph 38).
43. In that regard, it should be borne in mind that while budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy (see, to that effect, Case C‑187/00 Kutz-Bauer  [2003] ECR I‑2741, paragraph 59, and Case C‑196/02 Nikoloudi  [2005] ECR I‑1789, paragraph 53). Reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see, by analogy, Case C‑109/04 Kranemann  [2005] ECR I‑2421, paragraph 34 and the case-law cited, and Case C‑384/08 Attanasio Group  [2010] ECR I‑2055, paragraph 55).
48. In that regard, the Court has already held that the objective of encouraging student mobility is in the public interest and that it is one of the actions which Article 165 TFEU assigns to the European Union in the context of educational policy, vocational training, youth and sport, and that mobility in education and training is an integral part of freedom of movement for persons and that it is one of the main objectives of the European Union’s action (see Case C‑542/09 Commission  v Netherlands  [2012] ECR I‑0000, paragraph 71).
49. In that context, a justification relating to the promotion of student mobility could constitute an overriding reason in the public interest such as to justify a restriction of the sort at issue in the present case. None the less, as mentioned at paragraph 29 of the present judgment, legislation which is liable to restrict a fundamental freedom guaranteed by the Treaty, such as the right to freedom of movement and residence for citizens of the European Union, can be justified only if it is appropriate for securing the attainment of the legitimate objective pursued and if it does not go beyond what is necessary in order to attain it (see Commission v Netherlands , paragraph 73).
50. In any event, the Court has already held, at paragraph 40 of the present judgment, that legislation such as that at issue in the main proceedings is at the same time too general and too exclusive and cannot be considered proportionate since it prioritises an element which is not necessarily the only element representative of the actual degree of connection between the applicant for the grant and German society (see, to that effect, Commission  v Netherlands , paragraph 86).