Brussels, 25/02/2013 (Agence Europe) - According to Advocate General Eleanor Sharpston, German legislation which makes the funding of studies abroad conditional on the student's uninterrupted period of residence in Germany for three years immediately before the start of his or her studies constitutes a restriction on citizens' right of free movement. In her conclusions returned on 21 February (cases C-523/11 and C-525/11), Sharpston also calls on the Court to clarify its case-law regarding the objectives which justify this restriction resulting from the application of the “three year rule”.
The Court was approached by two German jurisdictions asking whether this condition of three years of residency - imposed in Germany to counter the risk of an unreasonable financial burden which could affect the total level of aid available (“economic objective”), to target people integrated into German society (“integration objective”) and to guarantee that the funding is granted to students who are the most likely to return to Germany after their studies and contribute to society (“social objective”) - is compatible with the provisions of the EU on European citizenship and the freedom of movement.
In her conclusions, Sharpston states first of all that EU law does not oblige the member states to provide funding for studies pursued in that state or elsewhere. However, if this funding is available, it must be allocated in respect of the freedom to move and reside freely within the territory of the member states. As a consequence, she concludes that the German “three year rule” constitutes a restriction on the rights to the freedom of movement enjoyed by the citizens of the EU, as it is likely to discourage students from going to study abroad. This restriction can be justified in principle by the economic objective of limiting the risk of an unreasonable financial burden. The national courts must verify whether it is, indeed, proportionate to the objective in question by determining: i) what is considered an unreasonable financial burden; ii) how the quantitative impact of the “three year rule” on this burden is estimated. Sharpston then considers that the “three year rule” is too inflexible to achieve the objective of integration pursued by Germany, as it risks excluding from funding students who, although they have not lived in the country for an uninterrupted period of three years, are nonetheless sufficiently integrated into German society, on the grounds of their nationality, residents, language skills, etc. The same applies to the respect of the social objective, which consists of ensuring a return to Germany after study, which was felt to be disproportionate as it is too exclusive. (FG/transl.fl)