Luxembourg, 11 November 2004
C-209/03, The Queen on the application of Dany Bidar v London Borough of Ealing Secretary of State for Education
Opinion of Advocate General Geelhoed on 11 November 2004 (link to English version when available).
Full text of this opinion
Preliminary ruling - High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court) - Interpretation of Article 12 EC - Access to university education - Student assistance in the form of a loan at a favourable interest rate (student loan) - Provision limiting the grant of such loans to students established in national territory
The case was referred to the Court by the High Court of Justice of England and Wales
Advocate General Geelhoed concluded:
(1) Since the introduction of Articles 17 EC et seq. on EU citizenship and in view of the developments in relation to the competence of the European Union in the field of education, assistance with maintenance costs for students attending university courses either in the form of subsidised loans or grants, no longer falls outside the scope of the application of the EC Treaty for the purposes of Article 12 EC and the prohibition of discrimination on grounds of nationality.
(2) Conditions laid down in national law governing eligibility for assistance with maintenance costs for students must be objectively justified and unrelated to the nationality of EU citizens. In order to determine whether this is the case a national court must ascertain that these conditions are appropriate for establishing a real link between an EU citizen applying for such assistance and the national education system and society. In addition, these conditions must not go beyond what is necessary for achieving that aim.
(3) Article 12 EC may only be relied upon to claim entitlement to assistance with maintenance costs from the date of the judgment of the Court except in cases where legal proceedings were already initiated for the same purpose prior to that date.
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Press release:
Following the introduction of EU citizenship, assistance with the maintenance costs for students attending university courses in the form of loans or grants falls within the scope of the EC Treaty.
Whilst a residency requirement may in principle be used to determine eligibility, any eligibility conditions must not go beyond what is necessary to establish the existence of a real link between the student and the national education system and society.
In the UK, assistance with living costs for students is primarily provided by means of a student loan from the State. This is offered at a rate linked to inflation which is lower than commercial rates and the student begins to pay back the loan only once they start earning above a certain amount. A national of a Member State is entitled to receive this loan if they are "settled" in the UK and have been resident in the UK for the three years prior to commencing their course. In order to be "settled" a person has to have lived in the UK for four years other than for the purposes of receiving full-time education.
Dany Bidar, a French national, moved to the UK in August 1998 and completed his final three years of secondary education in London. In September 2001 he enrolled on a course at University College London and applied to the London Borough of Ealing for funding. While he was granted assistance with tuition fees, he was refused a maintenance loan on the basis that he was not "settled" in the UK.
Mr Bidar challenged this decision, claiming that the residence requirement constituted discrimination on grounds of nationality, prohibited by the EC Treaty. The High Court asked the Court of Justice whether, following changes to the EC Treaty, notably the introduction of EU citizenship, assistance with living costs for students still remained outside the scope of the EC Treaty and if not what criteria should be used to determine whether the eligibility conditions were based on objective considerations.
Today, Advocate General Geelhoed delivered his Opinion in this case.
The Advocate General notes that the past case law of the Court stated that assistance with maintenance costs fell outside the substantive scope of the EEC Treaty. However, the inclusion, by the Treaty of Maastricht, of provisions bringing education within the sphere of Community action indicates that the subject of assistance with maintenance costs could now fall within the scope of the Treaty. Moreover, in light of the introduction of EU citizenship, and the Court's case law in this area, the Advocate General opines that assistance with maintenance costs now falls within the scope of community law. Just as citizenship has extended the right to move and reside within the territory of a Member State to economically non-active persons it could equally be said to extend, in certain circumstances, to economically inactive persons a right to benefits, such as that at issue, which would normally be granted to workers.
In relation to the criteria for determining whether eligibility conditions are objectively justifiable and independent of nationality, the Advocate General firstly observes that, where eligibility conditions are more cumbersome for EU citizens resident in the host Member State than for nationals, this constitutes, prima facie, indirect discrimination on grounds of nationality contrary to the Treaty. However such discrimination may be valid if it is justified and proportionate to a legitimate aim.
Whilst the Advocate General concedes that Member States do have a legitimate interest in preventing abuse of student support schemes and in preventing "benefit tourism", he notes that the manner in which this interest is ensured should not undermine the fundamental rights of EU citizens. Therefore, while the Member State may impose conditions which ensure that the applicant has a real link with the national education system and society, these conditions must be appropriate and they must not go beyond what is necessary for achieving that aim.
The Court has previously recognised that a residence requirement is, in principle, an appropriate way of ascertaining whether this connection exists. However, if such a requirement were to exclude a person who can demonstrate a genuine link with the national education system or society from the enjoyment of maintenance assistance, this result would be disproportionate Notably, where a person has followed his secondary education in a Member State which is more adapted to preparing him for entry into a third level institution in that Member State than elsewhere, his link with the educational system of the Member State is evident.
Finally, the Advocate General points out that a decision that maintenance grants fall within the scope of Community law amounts to a new and unforeseen development in Community law, of which the UK government would not have been aware at the time of drafting their legislation. Furthermore he notes that the financial implications of a judgment in favour of Mr Bidar are not clear. Therefore he suggests that it would be justified to limit the temporal effect of a judgment in his favour to legal relationships established as from the date of that judgment, except where legal proceedings were initiated prior to that date for the purpose of challenging decisions refusing entitlement to assistance with maintenance costs for students.
IMPORTANT: The Advocate General's Opinion is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court of Justice are now beginning their deliberations in this case. Judgment will be given at a later date.
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European Court of Justice, Advocate General's opinion 11 November 2004. Press and Information Press Release No 92/04
Item source: http:///europa.eu.int/cj/en/actu/communiq ues/cp04/aff/cp040092en.pdf