Francesca Strumia*, Connor Brown**
*Lecturer in Law, University of Sheffield
** LLB Law European and International, University of Sheffield
This post reflects the preliminary results of a research project conducted as part of the Sheffield Undergraduate Research Experience programme (SURE). It also builds on a presentation at the International Society of Public Law (ICON-S) annual conference in New York on 2nd July 2015
Concerns for strained public resources, weakened trans-national solidarity and disaffection with the idea of ‘ever closer union’ in Europe have made a first victim in public debate: the free movement of persons. This fundamental freedom at the basis of the project of integration conjures up all the above worries: the guarantee of non-discrimination of European Union migrants regardless of their nationality seems a costly one for Member States to uphold; the ‘minimum degree of solidarity’ that free movement of the non-economically active calls for could not resonate less with the European Union public; and if intended as a right for citizens, rather than just for workers, free movement evokes a ‘federalist’ idea of Europe that is heresy in a union that wants to be looser rather than closer. On this background it is easy to see how what was once the ‘dream’ of free movement has become, in many respects, the ‘nightmare’ to paraphrase the title of a 2014 editorial in the Common Market Law Review.
But how far does the ‘nightmare’ go, legally speaking? Two cases decided in the last few months, Dano and Martens, offer a viewpoint in this respect. The two cases have little in common: one is about ‘welfare tourists’, the other is about students; one was much talked about, the other raised little attention. However they do share one element: they reconfirm a difference in treatment between claims against host Member States and claims against home Member States, difference that has come to characterize the law on free movement of European Union citizens. The former claims are subject to stricter conditions - Dano re-emphasizes that a non-economically active migrant does not have a right to reside in a host Member State, let alone a right to non-discrimination there, if she is a burden for the host Member State (see further discussion of Dano here). The latter are more strongly protected - Martens confirms that rigid residence requirements for exportable study grants are a disproportionate way for Member States of origin to avoid financial burdens.
The result is an asymmetry, in cases involving mobility of the non-economically active, between protection of a right to entry (i.e. the right to reside in a host Member State and claim benefits there on a non-discrimination basis) and protection of a right to exit (i.e. the right to leave and export benefits and entitlements from a home Member State). In part, this asymmetry descends from the very evolution of the Court’s free movement test, from one looking for discrimination to one looking for hindrance to movement, and in particular for “any national measures which even though applicable without discrimination on grounds of nationality, are capable of hindering or rendering less attractive the exercise by community nationals of the fundamental freedoms guaranteed by the treaty” (CJEU judgment in Government of the French Community and the Walloon Government v. Flemish Government). The way the test plays out in non-workers cases signals in any case a shift in the understanding of relevant free movement rights – a shift that leads to question for whom free movement is a financial burden, to what extent it involves transnational solidarity and how close is the union that it reflects.
This asymmetry emerges with peculiar clarity in the law on student mobility, of which Martens was the latest expression. This is a particularly significant field for free movement of persons as it has been the forefront of legal change in the context of the evolution of free movement from a right for workers to a right for citizens. In addition, encouraging student mobility is a self-standing Treaty objective (art 165(2) TFEU). In numerical terms, the importance of student mobility is also on the rise. Between 2002 and 2012, the number of EU students studying in a EU country other than their own (or in a non-EU EEA country or EU candidate country) underwent an 87% increase, from 354,200 to 663,700, and in a single year between 2011 and 2012 it increased by 23%, from 540,900 to 663,700 (Eurostat data).
THE ASYMMETRY IN THE STUDENTS’ CASE LAW
Upon exploring students’ case law it seems, on a prima facie basis, that the asymmetry reigns true in how the law treats on the one hand certain “entry-type claims” - e.g. residence in a host Member State for purposes of study and right to obtain maintenance aid in a host State, and certain “exit-type claims” - e.g. portable study finance and tax relief in the home Member State for study fees paid in a host Member State. In the former respect, secondary legislation (Directive 2004/38, the citizens’ Directive) recognizes, implementing early case law (Raulin), a right to reside for students, however this is subject to resources and sickness insurance requirements; and maintenance aid is only available to EU students after five years of residence in the host Member State. In the latter respect, case-law has recognized the students’ right to export study grants from a Member State with which they can show a genuine link, and students and their families are entitled to claim tax relief in the home Member State for fees paid in a host State. A counter-trend element is education fees: EU students are entitled to equal treatment with host State nationals in this respect, which arguably strengthens their claim to entry. This is however in keeping with early case law pre-dating the advent of European Union citizenship (Gravier). Beyond the prima facie contrasts, the Court’s reasoning differs in applying a similar test to claims on the entry and exit side: this is clear in cases concerning respectively maintenance loans and grants in a host State, and portable study finance.
Maintenance Loans/Portable Study Finance
Residence requirements to obtain maintenance aid or to export study finance are at best a hindrance to free movement, and may also be discriminatory. However, in order to avoid migrant students becoming an unreasonable financial burden, it is in principle legitimate for Member States to offer study finance only to students who have demonstrated a degree of integration into the paying State’s society (Bidar). In practice however what is a proportionate requirement for these purposes differs, in the Court’s case law, for host States and home States. In cases on maintenance aid in a host State, the Court has upheld a rigid five year residency rule as a necessary and sufficient means to prove integration (Förster). A fixed pre-determined requirement protects legal certainty, according to the Court.
In cases on portable study grants, the Court takes a different view. It finds all kinds of pre-determined residence requirements – three-year residence (Prinz and Seeberger), permanent residence in home State or grant limited to host State of permanent residence (Thiele Meneses), three-out-of-six-previous years (Martens), disproportionate. The same three-out-of-six rule had been the subject of an infringement proceeding in 2012 in which it was found to be a discriminatory violation of free movement of workers. Interestingly, in the relevant case (Commission v Netherlands) the rule had been considered from a right to entry perspective (entry of migrant workers in the Netherlands and equal treatment in respect of study finance).
What the court suggests in relevant cases is a more flexible approach to assessing integration: taking into account not only length of residence but also qualitative links such as nationality, educational history, family, employment, language skills and other social and economic factors. The court also corroborates its stricter scrutiny of relevant residence requirements by emphasizing the very importance of students’ and teachers’ mobility to the project of integration (art 6(e) and 165(2) TFEU), an element in whose respect the court remains silent in host State maintenance aid cases.
Genuine Links and Financial Burdens
As a result the same court that goes along with host Member States’ reluctance to support entrant students if not after years of residence, is unwilling to hinder students who wish to export entitlements. In particular, an unspoken implication of the Court’s approach is that nationality is an important alternative to residence in proving attachment, to the point that nationals may be allowed to export study finance even from home States they have barely ever entered (Thiele Meneses, involving a German national who grew up in Brazil; Martens, involving a Dutch national who had spent more time in Belgium than in the Netherlands).
Further, the court’s approach indicates that the Member States’ interest in avoiding systemic financial burdens has a different weight when opposed to claims from incoming students than when opposed to claims from outgoing students. This is confirmed in cases on tax relief in a home Member State in respect of school and university fees paid in a host Member State. A Member State can cap relevant tax relief to the same amount applicable for national fees however it cannot completely exclude tax relief for fees paid in another Member State (Schwarz and Gootjes Schwarz; Zanotti). Even if in such situation, no part of the paid fees, whether paid to public or private institutions, will accrue to the coffers of the tax-relieving State.
In a recent case concerning students-family members of frontier workers, Giersch, the Court has given a hint that may suggest a change of direction even in cases regarding students unrelated to migrant workers. The Court has indicated that promotion of high rates of education among the resident population and promotion of the economy are legitimate State interests; and that a requirement for students in receipt of portable study finance to go back to reside and work in the paying Member State upon graduation is an appropriate means to this end. Recognition of similar home-coming requirements as legitimate restrictions to free movement of students would alter the current balance between right to exit and right to entry. By coupling the right to exit with a duty to return, similar requirements would thwart the natural evolution of a student’s right to leave a Member State into the right to enter and become integrated in another one. This may result into an impediment to free movement of workers. While any conclusion would be premature, it seems likely that the Court would take a highly contextual approach in assessing proportionality of similar requirements (the hint came in a case regarding Luxembourg, a Member State with an unusually low rate of highly educated residents, and a unusually high non-resident working population).
The asymmetry that emerges in student mobility case law could be articulated, with the necessary adaptations, also in other fields. This asymmetry has two implications that warrant further research. A first implication is in terms of the financial burden of free movement. Who bears the brunt of free movement in this sense, between home and host States, depends in the case of students. For instance, Member States that are large recipients and moderate senders of EU migrant students may find free movement lucrative: sending Member States will pay for study finance, and the host Member State will gain in fees. An example to explore comes to mind: the United Kingdom, which in 2012 sent about 17,000 students to other EU/EEA/EU candidate countries, and received about 200,000 from other EU/EEA/EU candidate countries (Eurostat data). This in turn suggests further reflection on the nature and reach of transnational solidarity in the EU: on what kind of affiliation model does it really depend (D. Thym) and to what extent should it be tied to the nature of the involved social benefit (F. De Witte) rather than to the position of the involved individual. A second implication is in terms of the meaning of European Union citizenship and its relation to nationality. European Union citizenship is often considered a threat and a weakening factor for the rights and the image of national citizenship (according to Gareth Davies, ‘residence is the new nationality’ in light of European Union citizenship). In this sense it is one of the more ‘federalist’ achievements of the integration project. Actually at least as regards free movement of students, European Union citizenship rather reinforces national citizenship. It makes rights tied to national citizenship exportable and thus extends the reach of national citizenship across its national borders. The flip side of this implication is that renouncing European Union citizenship or losing it would have the effect of shrinking national citizenship back within its original boundaries.
Francesca Strumia, ‘Individual Rights, Interstate Equality, State Autonomy: European Horizontal Citizenship and its (Lonely) Playground in Trans-Atlantic Perspective’
(forthcoming in Dimitry Kochenov (ed) EU Citizenship and Federalism: the Role of Rights,
Floris De Witte, ‘Who Funds the Mobile Student? Shedding Some Light on the Normative Assumptions Underlying EU Free Movement Law’ (2013) 50 C.M.L.Rev. 203
Daniel Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Rights for Economically Inactive Union Citizens’ (2015) 52 C.M.L.Rev. 17
Gareth Davies, ‘“Any Place I Hang my Hat” or Residence is the New Nationality’ (2005) 11 E.L.J. 43
Barnard & Peers: chapter 13
Photo: Francesca Strumia