Union Citizenship

Traditionally, national public services were based on nationality and territoriality. These traditional settings changed through European integration. According to the free movement provisions, economically active citizens of other Member States have to be treated as nationals, which, inter alia, allows them to take part in their host state’s education system and makes them eligible for benefits (further below in Sect. 2.3.2). With the introduction of Union Citizenship, free movement and the prohibition of discrimination were then extended to all Union Citizens.[1]

Union Citizenship and HEIs

According to Article 21 TFEU every Union Citizen has the right to reside wherever he or she wishes within the EU and Article 18 TFEU provides that a Union Citizen legally residing in the territory of another Member State has the right to equal treatment. However, this is subject to Directive 2004/38/EC,[2] which gives Member States the right to deny residency if the Union Citizen does not have sufficient resources and health insurance (Article 7(b) and (c)) and would thus become ‘an unreasonable burden’ on the host state. A line of CJEU case law broadened the latter somewhat in that the financial independence of the economically inactive EU migrant does not have to cover absolutely every circumstance, as a certain amount of solidarity from the host state can be expected and such limited reliance on the host state’s finances does not give the host state the right to deny residency.[3] When it comes to equal treatment, the lawfully residing EU migrant

(and his or her family members) can generally expect equal treatment, but this can be limited through secondary law (in particular Article 24 of Directive 2004/38).[4] Outside such limitations, unless there is a ‘real link’ to the host state’s society,[5] Union Citizenship provides the right to equal treatment regarding access to social benefits without the security of residency rights.[6] [7] Indeed, in Dano and Alimanovic10 the Court allowed for Member States to combine the criteria for residency and access to social benefits (and to rely on general rules rather than individual assessment) to deny access to social benefits.[7] [9]

In Gravier12 the Court applied this general line that residency and equal treatment for EU migrants should be ensured without creating ‘an unreasonable burden’ on the host state in field of higher education. Here it developed the approach (now to be found in Article 24(2) Directive 2004/38) that no discrimination is allowed in any area connected to access to higher education (e.g. entry grades, fees), but the eligibility to additional support (e.g. maintenance grants) can be limited to permanent residents.[10]

A similar approach is taken towards the home state and the exportation of grants; generally no territoriality requirement can be imposed unless either the increased number of potential benefit recipients would provide an unreasonable burden or no ‘real link’ to the home state exists anymore.[11] The two approaches are regarded as cumulative and interactive in that the migrant’s home state is supposed to support him or her until his or her ties to the host state are close enough to allow benefits to be granted there. The latter argument was posited as the way forward in the field of educational mobility.[12]

Overall, Member States have eagerly tried to retain control over more social policy areas. In health (Article 168 TFEU), education (Article 165 seq TFEU) and social security (Article 151 seq TFEU) the EU has only limited competences. In the field of education, the Member States avoided the supranational mode of harmonisation and during the negotiations for the Treaty of Lisbon[13] much emphasis was placed on the principle of conferral of competences and the principle of subsidiarity. The Court’s (earlier) judgements on EU citizenship have thus been criticised for interfering with national welfare systems which are particularly sensitive areas closely related to national finances.[14] Additionally, the Court’s case to case approach makes this area of law somewhat unpredictable. Even if one disagrees with this criticism and instead finds the Court’s overall approach to be reasonable, appearing as it does, to strike a balance between upholding the free movement of citizens and the concerns of the Member States, the cases discussed in the following demonstrate that the citizenship provisions, under certain circumstances, can in fact lead to significant spill-over into national HEI policies.

  • [1] See Dougan and Spaventar 2003, p. 699 seq; Dougan 2008, p. 723; Kohler and Gorlitz 2008,p. 93 seq; Dougan 2009, p. 154 seq; Schrauwen 2009, p. 4 seq.
  • [2] Directive 2004/38/EC on the right of citizens of the Union and their family members to moveand reside freely within the territory of the Member States amending Regulation (EEC) No1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC OJ [2004] L 158/77.
  • [3] C-184/99 Grzelczyk (Judgment of 20 September 2001, EU:C:2001:458), C-413/99 Baumbast(Judgment of 17 September 2002, EU:C:2002:493).
  • [4] In previous case law, it appeared that equal treatment can also be expected if the circumstances of the case warrant this (e.g. the reliance is only temporary) even if secondary measuresnormally exclude the reliance on benefits (C-184/99 Grzelczyk, C-140/12 Brey (Judgment of 19September 2013, EU:C:2013:565)). However, more recent case law seems to move away fromrequiring to make individual assessments and instead allows Member States to set more general rules (in line with secondary EU law) on when such reliance is excluded (C-333/13 Dano(Judgment of 11 November 2014, EU:C:2014:2358), C-67/14 Alimanovic (Judgment of 15September 2015, EU:C:2015:597)).
  • [5] C-85/96 Martinez Sala (Judgment of 12 May 1998, EU:C: 1998:217), C-209/03 Bidar(Judgment of 15 March 2005, EU:C:2005:169). In C-158/07 Forster (Judgment of 18 November2008, EU:C:2008:630) the Court up-held this line of reasoning. It did, however, allow a ratherlong residency requirement (five years) for the ‘real link’ to be established.
  • [6] C-456/02 Trojani (Judgment of 7 September 2004, EU:C:2004:488).
  • [7] C-333/13 Dano, C-67/14 Alimanovic.
  • [8] C-333/13 Dano, C-67/14 Alimanovic.
  • [9] 293/83 Gravier (Judgment of 13 February 1985, EU:C:1985:69), C-39/86 Lair (Judgmentof 21 June 1988, EU:C:1988:322) para 16. These cases were decided before Union Citizenshiphad been established with the Treaty of Maastricht and the Court thus needed to go into somelength to explain why students would fall under the Treaty provisions in the first place. Theywere, however, decided on the basis of what is now Article 18 TFEU. The latter has, with theTreaty of Lisbon, been incorporated into the citizenship provisions after it has been read togetherwith what is now Article 21 TFEU for some time. Recently, this differentiation between accessand maintenance has been discussed and reaffirmed in C-233/14 Commission v Netherlands(Judgment of 2 June 2016, EU:C:2016:396).
  • [10] See further Van der Mei 2005, p. 225 seq; Dougan 2005; Kohler and Gorlitz 2008, p. 95 seq;De Groof 2009, p. 80, 92 seq.
  • [11] C-499/06 Nerkowska (Judgment of 22 May 2008, EU:C:2008:300) and, in the field of education, C-11-12/06 Morgan and Bucher (Judgment of 23 October 2007, EU:C:2007:626), C-523-585/11 Prinz and Seeberger (Judgment of 18 July 2013, EU:C:2013:524), C-220/12 Thiele(Judgment of 24 October 2013, EU:C:2013:683) and C-275/12 Elrick (Judgment of 24 October2013, EU:C:2013:684) (all on restrictions to the exportation of maintenance grants in Germany)and, recently, C-359/13 Martens (Judgment of 26 February 2015, EU:C:2015:118). On theexportation of grants and the earlier case law see further Dougan 2005, p. 980 seq; Shuibhne2008; Dougan 2008, p. 727 seq; Schrauwen 2009, p. 4 seq, 9 seq.
  • [12] For an in-depth discussion see van der Mei 2005. See also Dougan 2008, p. 737.
  • [13] In this regard it is even been suggested that the problems during the constitutional reform process might partly have been caused by a negative opinion towards Union Citizenship and what itbrings with it (Dougan 2009, p. 164 seq).
  • [14] On this point see Dougan 2008, p. 729, 738; Dougan 2009, especially p. 161 seq, 181 seq;Schrauwen 2009, p. 10 seq.
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