Nicolas Aubriet v Ministre de l'Enseignement supérieur et de la Recherche.
Date: 2019-07-10
21


Indeed, as follows from settled case-law, it is for the Court to extract from all the information provided by the referring court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 8 May 2019, EN.SA., C‑712/17, EU:C:2019:374, paragraph 19 and the case-law cited).
24


Under Article 7(2) of Regulation No 492/2011, a worker who is a national of a Member State is to enjoy, in the territory of another Member State, the same social and tax advantages as national workers. That provision equally benefits both migrant workers resident in a host Member State and frontier workers employed in that Member State while residing in another Member State (see, to that effect, judgments of 27 November 1997, Meints, C‑57/96, EU:C:1997:564, paragraph 50; of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 37; and of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 39).
25


It is settled case-law that assistance granted for maintenance and education in order to pursue university studies evidenced by a professional qualification constitutes, for the migrant worker, a social advantage, within the meaning of Article 7(2) of Regulation No 492/2011, on which provision the child of the migrant worker may himself rely if, under national law, that assistance is granted directly to the student (judgments of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraphs 38 and 40, and of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 40).
26


The principle of equal treatment laid down in Article 45 TFEU and in Article 7 of Regulation No 492/2011 prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see judgments of 13 April 2010, Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 40, and of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 41).
28


Such a distinction based on residence, which is liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreign nationals (see, to that effect, judgments of 14 June 2012, Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 38; of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 44; and of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 43), constitutes indirect discrimination on grounds of nationality which can be accepted only if it is objectively justified.
29


In order to be justified, it must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective.
31


The Court has already held that the objective of promoting higher education is an objective of general interest recognised at EU level and that action undertaken by a Member State in order to ensure that its resident population is highly educated pursues a legitimate objective which can justify indirect discrimination on grounds of nationality (judgments of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraphs 53 and 56, and of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 46).
32


As regards, in the second place, whether a condition of a minimum period of employment of five years on the date of the application for a study grant such as that at issue in the main proceedings is appropriate to achieve such an objective, it should be recalled that, in accordance with settled case-law, the fact that migrant and frontier workers have participated in the labour market of a Member State creates, in principle, a sufficient link of integration with the society of that State, allowing them to benefit from the principle of equal treatment as compared with national workers, as regards social advantages (see, to that effect, judgments of 14 June 2012, Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 65, and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 63).
33


The link of integration arises, in particular, from the fact that migrant workers contribute to the financing of the social policies of the host Member State through the taxes and social contributions which they pay in that State by virtue of their employment there. They must, therefore, be able to benefit from them under the same conditions as national workers (see, to that effect, judgments of 14 June 2012, Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 66, and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 63).
34


However, the Court has already accepted that indirectly discriminatory national legislation restricting the grant to frontier workers of social advantages within the meaning of Article 7(2) of Regulation No 492/2011 where there is not a sufficient connection to the society in which they are pursuing their activities without residing there may be objectively justified (see judgments of 18 July 2007, Geven, C‑213/05, EU:C:2007:438, paragraph 26, and of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 51).
35


As regards, in particular, the grant of State financial aid for higher education studies to the non-resident children of migrant and cross-border workers, the Court has stated that the fact that the parents of the student concerned have been employed, for a significant period, in the Member State providing the aid applied for might be appropriate for the purposes of showing the actual degree of attachment with the society or labour market of that State (judgments of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 78, and of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 55).
39


The Court has held that such legislation entailed a restriction going beyond what is necessary to achieve the legitimate objective of increasing the number of residents holding a higher education degree, in so far as it did not permit the competent authorities to grant that aid where the parents had, notwithstanding a few short breaks, worked in Luxembourg for a significant period, in the present case almost eight years, during the period preceding the application for financial aid, inasmuch as such breaks are not liable to sever the connection between the applicant for financial aid and the Grand Duchy of Luxembourg (judgment of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 69).