EDUCATION : LUXEMBOURG'S EDUCATION AID SCHEME RULED DISCRIMINATORY.

PositionReport

Luxembourg's legislation that excludes the children of frontier workers from entitlement to financial aid for higher education pursues a legitimate objective, but it goes beyond what is needed to achieve that objective, ruled the EU Court of Justice, on 20 June. It issued the preliminary ruling(1) at the request of an administrative court in Luxembourg hearing a case brought by the children of frontier workers denied financial aid under the scheme.

Luxembourg provides grants or loans to students holding Luxembourg nationality or the nationality of another member state who live in Luxembourg, in order to promote higher education studies by students in its territory or in the territory of any other state. The children of frontier workers, who usually reside in a bordering country, are therefore not entitled to the aid.

The court explains in its judgement that by virtue of free movement of workers(2), aid to help finance higher studies for the children of migrant workers constitutes a social advantage that must be granted under the same conditions as those applied to national workers. It adds that equal treatment must also be extended to frontier workers residing in another member state. The court then points out that the residence condition required by Luxembourg's rules constitutes indirect discrimination based on nationality. It notes that such discrimination cannot be justified by budgetary considerations in the framework of free movement of workers.

The court nevertheless adds that the residence condition is appropriate for attaining the objective pursued by Luxembourg of promoting higher education studies and of significantly increasing the proportion of residents who hold a higher education degree. However, the financial aid in question is too exclusive in nature. By imposing the residence condition, it favours an element that is not necessarily the sole representative element of...

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