Maria do Céu Bragança Linares Verruga and Others v Ministre de l'Enseignement supérieur et de la recherche.
Date: 2016-12-14
34


The Court held that the difference in treatment which arose from the fact that a condition of residence was imposed on students who are the children of frontier workers constituted indirect discrimination on the ground of nationality, which is in principle prohibited, unless it is objectively justified (see, to that effect, judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 46).
35


In this connection, the Court held that the condition of residence laid down in the Law on State financial aid for higher education studies, as amended by the Law of 26 July 2010, was appropriate for attaining the objective in the public interest, acknowledged at the level of the European Union, of promoting higher education and of significantly increasing the proportion of Luxembourg residents who hold a higher education degree (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraphs 53, 56 and 68).
36


By contrast, in its analysis of whether the residence condition was necessary, the Court held that it went beyond what was necessary in order to attain the objective of increasing the proportion of residents with a higher education degree, to the extent that it precluded the taking into account of other elements potentially representative of the actual degree of attachment of the applicant for the financial aid in question 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 (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 83).
39


Under Article 7(2) of Regulation No 492/2011, the wording of which is the same as that in Article 7(2) of Regulation No 1612/68, 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, and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 37).
40


It follows from 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 1612/68 (judgments of 14 June 2012, Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 34, and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 38), on which provision the child of the migrant worker may himself rely if, under national law, that assistance is granted directly to the student (see, to that effect, judgments of 26 February 1992, Bernini, C‑3/90, EU:C:1992:89, paragraph 26; 14 June 2012, Commission v Netherlands, C‑542/09, EU:C:2012:346, paragraph 48; and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 40).
41


The principle of equal treatment laid down in Article 45 TFEU and in Article 7 of Regulation No 1612/68 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 judgment of 13 April 2010, Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 40).
43


Such a distinction based on residence 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, and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 44).
46


In paragraphs 53 and 56 of the judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411), the Court held that the social objective relied on by the Luxembourg Government in order to justify the legislation applicable in the case that gave rise to that judgment and aiming to promote higher education is an objective in the public interest acknowledged at the level of the European Union. Thus, an 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.
49


In the first place, it should be recalled that, according to 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).
50


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).
51


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 1612/68 where there is not a sufficient connection to the society in which they are pursuing their activities without residing there may be objectively justified and proportionate to the objective pursued (see, to that effect, judgments of 18 July 2007, Hartmann, C‑212/05, EU:C:2007:437, paragraphs 30 to 35 and 37; 18 July 2007, Geven, C‑213/05, EU:C:2007:438, paragraph 26; 11 September 2007, Hendrix, C‑287/05, EU:C:2007:494, paragraphs 54 and 55; and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 64).
54


The Court held that such a residence condition was appropriate for attaining the objective of promoting higher education and of significantly increasing the proportion of Luxembourg residents who hold a higher education degree, but that it was too exclusive in nature (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 76). The existence of a reasonable probability that the recipients of the aid will return to settle in Luxembourg and make themselves available to the labour market of that Member State, in order to contribute to its economic development, could be established on the basis of elements other than such a condition (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 77).
55


Amongst those elements, the Court indicated 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 (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 78).
61


The Court thus indicated that a sufficient attachment of the student in question to the Grand Duchy of Luxembourg, such as to make it possible to conclude that there is a reasonable probability that he will return to settle in and make himself available to the labour market of that Member State, may also be derived from the fact that that student resides alone or with his parents in a Member State which borders upon the Grand Duchy of Luxembourg and that, for a significant period of time, his parents have worked in Luxembourg and live near to that Member State (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 78).
62


With regard to the possibilities open to the Luxembourg legislature, the Court indicated that, where the aid granted consists in, for example, a loan, a system of financing which made the grant of that loan, or even the outstanding balance thereof, or its non-reimbursement, conditional on the student who receives it returning to Luxembourg after his studies abroad in order to work and reside there, could attain the objective pursued, without adversely affecting the children of frontier workers (judgment of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 79).
69


A rule such as that laid down in the national legislation at issue in the main proceedings, which makes the grant of financial aid for higher education studies to non-resident students conditional on a parent having worked in Luxembourg for a minimum continuous period of five years at the time the application for financial aid is made, without permitting the competent authorities to grant that aid where, as in the main proceedings, the parents, notwithstanding a few short breaks, have worked in Luxembourg for a significant period of time, in this case for almost eight years, in the period preceding that application, involves a restriction that goes beyond what is necessary in order to attain the legitimate objective of increasing the number of residents holding a higher education degree, inasmuch as such breaks are not liable to sever the connection between the applicant for financial aid and the Grand Duchy of Luxembourg.