The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills.
Date: 2005-03-15
29. According to the order for reference, the claimant in the main proceedings is not covered by Regulation No 1612/68.
31. To assess the scope of application of the Treaty within the meaning of Article 12 EC, that article must be read in conjunction with the provisions of the Treaty on citizenship of the Union. Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to receive the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraphs 30 and 31, and Case C‑148/02 Garcia Avello  [2003] ECR I‑11613, paragraphs 22 and 23).
32. According to settled case-law, a citizen of the European Union lawfully resident in the territory of the host Member State can rely on Article 12 EC in all situations which fall within the scope ratione materiae  of Community law (Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraph 63, and Grzelczyk , paragraph 32).
33. Those situations include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the right to move and reside within the territory of the Member States, as conferred by Article 18 EC (see Case C-274/96 Bickel and Franz  [1998] ECR I‑7637, paragraphs 15 and 16, Grzelczyk , paragraph 33, and Garcia Avello , paragraph 24).
34. Moreover, there is nothing in the text of the Treaty to suggest that students who are citizens of the Union, when they move to another Member State to study there, lose the rights which the Treaty confers on citizens of the Union ( Grzelczyk , paragraph 35).
35. As is apparent from Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraphs 29 to 34, a national of a Member State who goes to another Member State and pursues secondary education there exercises the freedom to move guaranteed by Article 18 EC.
37. With regard to social assistance benefits, the Court held in Case C‑456/02 Trojani  [2004] ECR I‑0000, paragraph 43, that a citizen of the Union who is not economically active may rely on the first paragraph of Article 12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit.
38. It is true that the Court held in Lair  and Brown  (paragraphs 15 and 18 respectively) that ‘at the present stage of development of Community law assistance given to students for maintenance and for training falls in principle outside the scope of the EEC Treaty for the purposes of Article 7 thereof [later Article 6 of the EC Treaty, now, after amendment, Article 12 EC]’. In those judgments the Court considered that such assistance was, on the one hand, a matter of education policy, which was not as such included in the spheres entrusted to the Community institutions, and, on the other, a matter of social policy, which fell within the competence of the Member States in so far as it was not covered by specific provisions of the EEC Treaty.
39. However, since judgment was given in Lair  and Brown , the Treaty on European Union has introduced citizenship of the Union into the EC Treaty and added to Title VIII (now Title XI) of Part Three a Chapter 3 devoted inter alia to education and vocational training ( Grzelczyk , paragraph 35).
41. Under paragraphs 2 and 4 of that article, the Council may adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States, and recommendations aimed in particular at encouraging the mobility of students and teachers (see D’Hoop , paragraph 32).
42. In view of those developments since the judgments in Lair  and Brown , it must be considered that the situation of a citizen of the Union who is lawfully resident in another Member State falls within the scope of application of the Treaty within the meaning of the first paragraph of Article 12 EC for the purposes of obtaining assistance for students, whether in the form of a subsidised loan or a grant, intended to cover his maintenance costs.
46. However, Article 3 of Directive 93/96 does not preclude a national of a Member State who, by virtue of Article 18 EC and Directive 90/364, is lawfully resident in the territory of another Member State where he intends to start or pursue higher education from relying during that residence on the fundamental principle of equal treatment enshrined in the first paragraph of Article 12 EC.
47. In a context such as that of the main proceedings where the right of residence of the applicant for assistance is not contested, the assertion, made by some of the governments which have submitted observations, that Community law allows a Member State to take the view that a national of another Member State who has recourse to social assistance no longer fulfils the conditions of his right of residence and if appropriate to take measures, within the limits imposed by Community law, for the removal of that national (see Grzelczyk , paragraph 42, and Trojani , paragraph 45) is moreover immaterial.
51. It must be recalled here that the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, inter alia, Case 152/73 Sotgiu  [1974] ECR 153, paragraph 11; Case C‑57/96 Meints  [1997] ECR I‑6689, paragraph 44; and Case C‑212/99 Commission  v Italy  [2001] ECR I‑4923, paragraph 24).
53. Such requirements risk placing at a disadvantage primarily nationals of other Member States. Both the condition requiring an applicant for that assistance to be settled in the United Kingdom and that requiring him to have resided there prior to his studies are likely to be more easily satisfied by United Kingdom nationals.
54. Such a difference in treatment can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions (see Bickel and Franz , paragraph 27, D’Hoop , paragraph 36, and Garcia Avello , paragraph 31).
56. On this point, it must be observed that, although the Member States must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other Member States (see Grzelczyk , paragraph 44), it is permissible for a Member State 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.
57. In the case of assistance covering the maintenance costs of students, it is thus legitimate for a Member State to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State.
58. In this context, a Member State cannot, however, require the students concerned to establish a link with its employment market. Since the knowledge acquired by a student in the course of his higher education does not in general assign him to a particular geographical employment market, the situation of a student who applies for assistance to cover his maintenance costs is not comparable to that of an applicant for a tideover allowance granted to young persons seeking their first job or for a jobseeker’s allowance (see, in this regard, D’Hoop , paragraph 38, and Case C‑138/02 Collins  [2004] ECR I‑0000, paragraph 67, respectively).
59. On the other hand, the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host Member State for a certain length of time.
66. It should be recalled that the interpretation the Court gives to a rule of Community law is limited to clarifying and defining the meaning and scope of that rule as it ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied (see Case 61/79 Denkavit italiana  [1980] ECR 1205, paragraph 16, and Case 24/86 Blaizot  [1988] ECR 379, paragraph 27).
67. It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict the possibility for any person concerned of relying on a provision it has interpreted with a view to calling in question legal relationships established in good faith (see Blaizot , paragraph 28; Case C‑163/90 Legros and Others  [1992] ECR I‑4625, paragraph 30; and Case C‑262/96 Sürül  [1999] ECR I‑2685, paragraph 108).
68. Moreover, it is settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effect of the ruling (see, inter alia, Grzelczyk , paragraph 52).
69. The Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with Community legislation by reason of objective, significant uncertainty regarding the implications of Community provisions, to which the conduct of other Member States or the Commission may even have contributed (see Grzelczyk , paragraph 53).