Brussels, 14/06/2012 (Agence Europe) - In order to be eligible for grants for studying abroad, students living in the Netherlands must have lived in the Netherlands for at least three of the previous six years, which discriminates against immigrants because the Netherlands could not demonstrate that the residence rule did not outstrip the aim of promoting student mobility.
This was the ruling of the European Court of Justice in Case C-542/09, issued on Thursday 14 June 2012, finding in favour of the European Commission, which took the Netherlands to court because the three years residence rule in the Dutch student finance law indirectly discriminates against foreign workers and their families, and is banned under the EU Treaty (Article 45). It also flouts EU legislation on workers' freedom of movement.
In the ruling, the Court of Justice says that under EU workers' freedom of movement rules (Regulation 1612/68, amended by Regulation 2434/92), workers from another member state must have the same social benefits and tax breaks as workers from the country in question. Finance for their children's study is a typical benefit covered by the EU rules and must be provided without discrimination on the grounds of nationality or hidden discrimination, like the requirement to be resident for a specific period of time before being eligible. The residence requirement would mostly penalise foreign workers and workers living in border areas but living in other member states because such workers are not usually Dutch nationals. The Dutch residence rule is therefore indirectly discriminatory against foreign workers, treating them less favourably than Dutch workers, and is therefore banned under EU law.
The Court of Justice brushed aside the justifications made by the Dutch, namely the need to avoid having to pay too much in student grants, which would jeopardise the very grant system (the Court arguing that “the objective of avoiding an unreasonable financial burden cannot be regarded as an overriding reason relating to the public interest, capable of justifying the unequal treatment of Netherlands' workers and workers from other member states”) and the Dutch government's desire to get students to study abroad because the residence requirement means that the only students able to take up the grants are those who, without the grants, would study in the Netherlands. Students not living in the Netherlands, however, would be more likely to study in their member state of residence and the rule would therefore not encourage mobility. Here, the Court of Justice rules that although the promotion of student mobility could be seen as an overriding element of general interest justifying the restriction of non-discrimination on the grounds of nationality, the three years' residence over the past six years rule “goes beyond what is necessary to attain the objective sought by the legislation”. (FG/transl.fl)