B. Martens v Minister van Onderwijs, Cultuur en Wetenschap.
Date: 2015-02-26
20. It must, first of all, be borne in mind that, as a Netherlands national, Ms Martens enjoys the status of citizen of the Union under Article 20(1) TFEU and may therefore rely on the rights conferred on those having that status, including against their Member State of origin (see judgments in Morgan and Bucher , C‑11/06 and C‑12/06, EU:C:2007:626, paragraph 22, and Prinz and Seeberger , C‑523/11 and C‑585/11, EU:C:2013:524, paragraph 23 and the case-law cited).
21. 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, within the scope ratione materiae  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 (judgments in D’Hoop , C‑224/98, EU:C:2002:432, paragraph 28, and Prinz and Seeberger , EU:C:2013:524, paragraph 24 and the case-law cited).
22. 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 (judgments in Morgan and Bucher , EU:C:2007:626, paragraph 23, and Prinz and Seeberger , EU:C:2013:524, paragraph 25 and the case-law cited).
23. In that respect, it must be stated that, 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 par ticular, 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 every citizen of the Union (judgments in Morgan and Bucher , EU:C:2007:626, paragraph 24, and Prinz and Seeberger , EU:C:2013:524, paragraph 26 and the case-law cited).
24. Moreover, EU law does not impose any obligation on Member States to provide a system of funding for higher education pursued in a Member State or abroad. However, where a Member State provides for such a system which enables students to receive such grants, it must ensure that the detailed rules for the award of that funding do not create an unjustified restriction of the right to move and reside within the territory of the Member States (see, to that effect, judgments in Morgan and Bucher , EU:C:2007:626, paragraph 28; Prinz and Seeberger , EU:C:2013:524, paragraph 30; and Thiele Meneses , C‑220/12, EU:C:2013:683, paragraph 25).
25. In that regard, it is apparent from settled case-law that national legislation which places certain nationals at a disadvantage 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 (judgments in Morgan and Bucher , EU:C:2007:626, paragraph 25, and Prinz and Seeberger , EU:C:2013:524, paragraph 27).
26. Indeed, the opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union cannot be fully effective if a national of a Member State could be dissuaded from using them by obstacles resulting from his stay in another Member State because of legislation of his State of origin penalising the mere fact that he has used those opportunities (see, to that effect, judgments in Morgan and Bucher , EU:C:2007:626, paragraph 26, and Prinz and Seeberger , EU:C:2013:524, paragraph 28).
27. 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 judgments in D’Hoop , EU:C:2002:432, paragraph 32; Morgan and Bucher , EU:C:2007:626, paragraph 27; and Prinz and Seeberger , EU:C:2013:524, paragraph 29).
31. By making the continued grant of funding for studies abroad subject to the three-out-of-six-years rule, the legislation at issue in the main proceedings is liable to penalise an applicant merely because he has exercised his right to freedom of movement and residence in another Member State, given the effect that exercising that freedom is likely to have on the possibility of receiving funding for higher education (see, to that effect, judgments in D’Hoop , EU:C:2002:432, paragraph 30; Prinz and Seeberger , EU:C:2013:524, paragraph 32; and Thiele Meneses , EU:C:2013:683, paragraph 28).
32. As the Advocate General stated at point 106 of her Opinion, it is, in that regard, irrelevant that considerable time has elapsed since the appellant in the main proceedings exercised her free movement rights (see, by analogy, judgment in Nerkowska , C‑499/06, EU:C:2008:300, paragraph 47).
33. It must therefore be held that the three-out-of-six-years rule, as laid down in Article 2.14(2) of the WSF 2000, even though it applies without distinction to Netherlands nationals and other European Union citizens, 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, judgment in Prinz and Seeberger , EU:C:2013:524, paragraph 31).
34. The restriction resulting 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 a legitimate objective pursued by the provisions of national law. 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 (judgments in De Cuyper , C‑406/04, EU:C:2006:491, paragraphs 40 and 42; Morgan and Bucher , EU:C:2007:626, paragraph 33; and Prinz and Seeberger , EU:C:2013:524, paragraph 33).
36. In that regard, it must be noted that both the integration of students and the desire to verify the existence of a connecting link between the society of the Member State providing a benefit 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 citizens of the Union (see, to that effect, judgment in Thiele Meneses , EU:C:2013:683, paragraph 34 and the case-law cited).
37. 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 judgments in D’Hoop , EU:C:2002:432, paragraph 39; Prinz and Seeberger , EU:C:2013:524, paragraph 37; and Thiele Meneses , EU:C:2013:683, paragraph 36).
38. As regards the extent of the connection between the recipient of a benefit and the Member State concerned, the Court has held that, with regard to benefits that are not governed by EU law, such as that 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, judgments in Gottwald , C‑103/08, EU:C:2009:597, paragraph 34, and Thiele Meneses , EU:C:2013:683, paragraph 37).
40. In that regard, it must be pointed out that the Court has already held, as regards the legislation at issue in the main proceedings, that the application of the three-out-of-six-years rule established an unjustified inequality of treatment as between Netherlands workers and migrant workers residing in the Netherlands because, by requiring specific periods of residence in the territory of the Member State concerned, the rule prioritised an element which is not necessarily the sole element representative of the actual degree of attachment between the party concerned and that Member State and was therefore too exclusive (see judgment in Commission  v Netherlands , C‑542/09, EU:C:2012:346, paragraphs 86 and 88).
41. The legislation at issue in the main proceedings, inasmuch as it constitutes a restriction on the freedom of movement and residence of a citizen of the Union, such as the appellant in the main proceedings, is also too exclusive because it does not make it possible to take account of other factors which may connect such a student to the Member State providing the benefit, such as the nationality of the student, his schooling, family, employment, language skills or the existence of other social and economic factors (see, to that effect, judgment in Prinz and Seeberger , EU:C:2013:524, paragraph 38). Likewise, as the Advocate General stated at point 103 of her Opinion, the employment of the family members on whom the student depends in the Member State providing the benefit may also be one of the factors to be taken into account in assessing those links.