European Commission v Kingdom of the Netherlands.
Date: 2012-06-14
33. That provision equally benefits both migrant workers residing in a host Member State and frontier workers employed in that Member State while residing in another Member State (Case C-213/05 Geven  [2007] ECR I-16347, paragraph 15).
34. According to settled case-law, assistance granted for maintenance and education in order to pursue university studies evidenced by a professional qualification constitutes a social advantage for the purposes of Article 7(2) of Regulation No 1612/68 (Case 39/86 Lair  [1988] ECR 3161, paragraph 24, and Bernini , paragraph 23).
35. The Court has also held that study finance granted by a Member State to the children of workers constitutes, for the migrant worker, a social advantage for the purposes of Article 7(2) of Regulation No 1612/68, where the worker continues to support the child ( Bernini , paragraphs 25 and 29, and Meeusen , paragraph 19).
36. Article 7(2) of Regulation No 1612/68 requires that, where a Member State gives its national workers the opportunity of pursuing education or training provided in another Member State, it must extend that opportunity to EU workers established within its territory (Case 235/87 Matteucci  [1988] ECR 5589, paragraph 16, and Case C-308/89 di Leo  [1990] ECR I-4185, paragraph 14).
37. In that respect, it should be noted that the equal treatment rule laid down both in Article 45 TFEU and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination on grounds of nationality but also all covert forms of discrimination which, through the application of other criteria of differentiation, lead in fact to the same result (see, inter alia, Case C-57/96 Meints  [1997] ECR I-6689, paragraph 44, and Case C-269/07 Commission  v Germany [2009] ECR I-7811, paragraph 53).
38. That is the position, in particular, in the case of a measure — such as that at issue in the present case — which requires a specified period of residence, in that it primarily operates to the detriment of migrant workers and frontier workers who are nationals of other Member States, in so far as non-residents are usually non-nationals (see, to that effect, Cases C-224/97 Ciola [1999] ECR I-2517, paragraph 14, and C-382/08 Neukirchinger  [2011] ECR I-139, paragraph 34). In that context, it is immaterial whether, in some circumstances, the contested measure affects, as well as nationals of other Member States, nationals of the Member State in question who are unable to meet such a criterion. In order for a measure to be treated as being indirectly discriminatory, it is not necessary for it to have the effect of placing all the nationals of the Member State in question at an advantage or of placing at a disadvantage only nationals of other Member States, but not nationals of the State in question (see, to that effect, Case C-388/01 Commission v Italy  [2003] ECR I-721, paragraph 14).
41. In that respect, it should be noted that, according to settled case-law, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, inter alia, Case C-279/93 Schumacker  [1995] ECR I-225, paragraph 30, and Case C-253/09 Commission v Hungary  [2011] ECR I-12391, paragraph 50).
48. The members of a migrant worker’s family are the indirect recipients of the equal treatment granted to the worker under Article 7(2) of Regulation No 1612/68. Since the grant of funding for studies to a child of a migrant worker constitutes a social advantage for the migrant worker, the child may himself rely on that provision in order to obtain the funding if, under national law, such funding is granted directly to the student. For the migrant worker, however, that benefit constitutes a social advantage for the purposes of that provision only inasmuch as he continues to support his descendant (Case 316/85 Lebon  [1987] ECR 2811, paragraphs 12 and 13, and Bernini , paragraphs 25 and 26).
49. Article 12 of Regulation No 1612/68, on the other hand, grants the children of a migrant worker an autonomous right to education. That right is not dependent on possessing the status of dependent child (Case C-7/94 Gaal [1995] ECR I-1031, paragraph 25); nor is it dependent on the right of residence of the children’s parents in the host Member State (Case C-310/08 Ibrahim [2010] ECR I-1065, paragraph 40). Nor yet is it limited to the children of migrant workers, since it applies also to the children of former migrant workers ( Ibrahim , paragraph 39).
50. Article 12 requires only that the child have lived with his parents or with either parent in a Member State while at least one of the parents resided there as a worker (Case 197/86 Brown  [1988] ECR 3205, paragraph 30, and Case C-480/08 Teixeira  [2010] ECR I-1107, paragraph 52).
51. Although it is true that the scope ratione personae  of Article 7(2) of Regulation No 1612/68 and that of Article 12 of that regulation are different, the Court has nevertheless held that both those provisions lay down, in the same way, a general rule which, in matters of education, requires every Member State to ensure equal treatment between, on the one hand, its own nationals and, on the other, the children of workers established within its territory who are nationals of another Member State ( di Leo , paragraph 15).
55. Such an inequality constitutes indirect discrimination which, unless objectively justified, is prohibited under Article 7(2) of Regulation No 1612/68. Yet, even if it were objectively justified, it would still have to be of such a nature as to ensure achievement of the aim pursued and not go beyond what was necessary for that purpose (see, inter alia, Case C-325/08 O lympique Lyonnais [2010] ECR I-2177, paragraph 38).
57. As regards the justification based on the additional burden which would result from non-application of the residence requirement, it should be borne in mind that, although 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 and cannot therefore justify discrimination against migrant workers (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).
58. To accept that budgetary concerns may justify a difference in treatment between migrant workers and national workers would imply that the application and the scope of a rule of EU law as fundamental as non-discrimination on grounds of nationality might vary in time and place according to the state of the public finances of Member States (see, to that effect, Cases C-343/92 Roks and Others [1994] ECR I-571, paragraph 36, and C-77/02 Steinicke  [2003] ECR I-9027, paragraph 67).
61. Although the Court ruled that the students in question could be required by the host Member State to demonstrate a certain degree of integration into the society of that State in order to receive a maintenance grant, the fact remains that the Court did so only after finding that the interested parties did not come within the scope of the provisions of EU law relating to freedom of movement for workers, in particular Regulation No 1612/68 (see Bidar , paragraph 29, and Förster , paragraphs 32 and 33).
63. Although the Member States’ power — which the Court has recognised, subject to the respect of certain conditions — to require nationals of other Member States to show a certain degree of integration in their societies in order to receive social advantages, such as financial assistance for education, is not limited to situations in which the applicants for assistance are economically inactive citizens, the existence of a residence requirement, such as that laid down in Article 2.14(2) of the WSF 2000, to prove the required degree of integration is, in principle, inappropriate when the persons concerned are migrant workers or frontier workers.
65. As regards migrant workers and frontier workers, the fact that they have participated in the employment market of a Member State establishes, in principle, a sufficient link of integration with the society of that Member State, allowing them to benefit from the principle of equal treatment, as compared with national workers, as regards social advantages. That principle is applicable not only to all employment and working conditions, but also to all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory (see, inter alia, Case C-85/96 Martínez Sala  [1998] ECR I-2691, paragraph 25, and Commission v Germany , paragraph 39).
66. The link of integration arises from, inter alia, the fact that, through the taxes which he pays in the host Member State by virtue of his employment, the migrant worker also contributes to the financing of the social policies of that State and should profit from them under the same conditions as national workers.
68. As regards the risk of abuse relied upon by the Kingdom of the Netherlands, arising in particular from the performance of short periods of employment solely for the purposes of obtaining portable funding, it should be pointed out that the concept of ‘worker’ for the purposes of Article 45 TFEU has an autonomous meaning specific to EU law and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to the case-law of the Court, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, inter alia, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17, and Case C-345/09 van Delft and Others  [2010] ECR I-9879, paragraph 89).
71. It is not disputed that the objective of encouraging student mobility is in the public interest. It suffices, in this respect, to point out 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. Moreover, it follows from the first recital to the Recommendation of the European Parliament and of the Council of 18 December 2006 on transnational mobility within the Community for education and training purposes: European Quality Charter for Mobility (OJ 2006 L 394, p. 5) 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.
73. However, as indicated in paragraph 55 above, legislation which is liable to restrict a fundamental freedom guaranteed by the Treaty, such as freedom of movement for workers, 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.
81. According to settled case-law, it is for the national authorities, where they adopt a measure derogating from a principle enshrined in EU law, to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it. The reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and specific evidence substantiating its arguments (Cases C-147/03 Commission v Austria  [2005] ECR I-5969, paragraph 63, and C-73/08 Bressol and Others  [2010] ECR I-2735, paragraph 71).
85. Admittedly, the Court has ruled that the standard of proof cannot be so high as to require the Member State to prove, positively, that no other conceivable measure could enable the objective pursued to be attained under the same conditions (see, to that effect, Case C-110/05 Commission v Italy  [2009] ECR I-519, paragraph 66).
86. Nevertheless, as the Advocate General indicated in point 158 of her Opinion, the Kingdom of the Netherlands would have needed at least to show why it opted for the ‘three out of six years’ rule, to the exclusion of all other representative elements. It should be pointed out in that regard that the rule is too exclusive. By requiring specific periods of residence in the territory of the Member State concerned, the ‘three out of six years’ rule prioritises an element which is not necessarily the sole element representative of the actual degree of attachment between the party concerned and that Member State.
88. It follows that, contrary to Article 45 TFEU and Article 7(2) of Regulation No 1612/68, Article 2.14(2) of the WSF 2000 establishes inequality of treatment as between Netherlands workers and migrant workers residing in the Netherlands or employed in that Member State as frontier workers.