B. Martens v Minister van Onderwijs, Cultuur en Wetenschap.

• Jurisdiction: European Union
• Celex Number: 62013CC0359
• ECLI: ECLI:EU:C:2014:2240
• Docket Number: C-359/13
• Date: 24 September 2014
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 24 September 2014 ( 1 )

Case C‑359/13

B. Martens

v

Minister van Onderwijs, Cultuur en Wetenschap

(Request for a preliminary ruling from the

Centrale Raad van Beroep (Netherlands))

‛Funding of higher education in overseas territories — Residence condition — ‘Three out of six years rule’ — Former frontier worker’

1. The request for a preliminary ruling in the present case again concerns eligibility for funding provided by the Netherlands for higher education outside the Netherlands itself — what is termed meeneembare studie financiering (‘MNSF’ or ‘portable study finance’). In its judgment in Case C‑542/09 Commission v Netherlands, ( 2 ) the Court held that the Netherlands rule under which any applicant for such finance had, in addition to being eligible for funding to study in the Netherlands, also to have resided lawfully in the Netherlands during at least three out of the last six years prior to enrolment (the ‘three out of six years rule’) fell foul of Article 45 TFEU and Article 7(2) of Regulation (EEC) No 1612/68 ( 3 ) because it was indirectly discriminatory.

2. The three out of six years rule was nevertheless applied to Miss Babette Martens, a Netherlands national resident in Belgium for nearly all her schooling, who applied to the Netherlands authorities for portable study finance to go to Curaçao to pursue higher education there. Her father (also a Netherlands national resident in Belgium) worked part-time in the Netherlands for a while; and Miss Martens has been granted MNSF for her university studies in respect of that period. However, she was denied study finance for the remainder of her studies once her father ceased to be a frontier worker, because the three out of six years rule was then applied to her situation and she did not satisfy it.

3. The Centrale Raad van Beroep (Netherlands) (Central Appeals Court) (‘the referring court’) asks in essence whether (i) the freedom of movement for workers or (ii) European Union (‘EU’) citizenship rights preclude the Netherlands from applying the three out of six years rule in such a situation. In particular, it asks whether Mr Martens can rely, as against the Netherlands, on rights derived from free movement of workers after ceasing to be a frontier worker in that Member State. If he cannot, the referring court seeks guidance on whether Miss Martens can rely on her own rights as an EU citizen.

EU law

Treaty on the Functioning of the European Union

4. Article 20(1) TFEU establishes EU citizenship. Pursuant to Article 20(2), EU citizens are to ‘enjoy the rights and be subject to the duties provided for in the Treaties’. In particular, Article 20(2)(a) confers on EU citizens ‘the right to move and reside freely within the territory of the Member States’. Article 21 confirms that right, adding that it is ’subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.

5. Article 45 TFEU states: ‘1. Freedom of movement for workers shall be secured within the Union. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. …’

6. Whilst Article 52(1) TEU provides that the Treaties apply, inter alia, to ‘the Kingdom of the Netherlands’, of which Curaçao forms part, ( 4 ) Article 52(2) TEU cross-refers to Article 355 TFEU for the definition of the territorial scope of the Treaties. In accordance with Article 355(2) TFEU, the special arrangements for association in Part Four of the TFEU are to apply to the overseas countries and territories (‘OCTs’) listed in Annex II to that Treaty. ( 5 ) The list in Annex II contains the Netherlands Antilles, which include Curaçao. These countries and territories are described in Article 198(1) TFEU (the first provision of Part Four) as ‘non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom’ which the Member States ‘agree to associate with the Union’.

7. Part Four of the TFEU concerns ‘Association of the Overseas Countries and Territories’. Article 202 TFEU states that ‘[s]ubject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be regulated by acts adopted in accordance with Article 203’. ( 6 )

Regulation No 1612/68

8. Regulation No 1612/68 provides supplementary rules to secure the freedom of nationals of one Member State to work in another Member State and thereby implements the Treaty provisions on freedom of movement for workers. The first recital in the preamble to that regulation describes its overall objective as being to achieve ‘the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, as well as the right of such workers to move freely within the [Union] in order to pursue activities as employed persons subject to any limitations justified on grounds of public policy, public security or public health’.

9. The third and fourth recitals state, respectively, that ‘freedom of movement constitutes a fundamental right of workers and their families’ and that that right is to be enjoyed ‘by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services’.

10. According to the fifth recital, the exercise of this fundamental freedom, ‘by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family and the conditions for the integration of that family into the host country’.

11. Article 7(2) of Regulation No 1612/68 provides that a worker who is a national of a Member State ‘shall enjoy the same social and tax advantages as national workers’ in the territory of another Member State.

12. Article 12 of Regulation No 1612/68 reads: ‘The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. ...’

Directive 2004/38

13. Article 24 of Directive 2004/38/EC ( 7 ) provides: ‘1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence. 2. By way of derogation from paragraph 1, the host Member State shall not be obliged … prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.’

Netherlands law

Charter for the Kingdom of the Netherlands

14. The Statuut voor het Koninkrijk der Nederlanden (‘Charter for the Kingdom of the Netherlands’), as amended in 2010, provides that the Kingdom of the Netherlands consists of the Netherlands, Aruba, Curaçao and Saint Maarten. ( 8 ) The Netherlands and the other entities forming part of the Kingdom of the Netherlands share a single nationality, head of State, foreign policy and defense. However, areas such as education and study finance remain autonomous, although cooperation is possible.

Law on study finance

15. The Wet Studiefinanciering (Law on Study Finance, ‘the Wsf 2000’) sets out the conditions for funding of study in the Netherlands and abroad. Funding for higher education in the Netherlands is available to students who are between 18 and 29 years old, study at a designated or approved educational establishment and satisfy a nationality condition. Article 2.2 defines the nationality condition. Those eligible include Netherlands nationals and non-Netherlands nationals who are treated, in the area of funding for studies, as Netherlands nationals based on a treaty or a decision of an international organisation.

16. EU citizens who are economically active in the Netherlands and their family members need not have resided in the Netherlands to qualify for this type of funding. Thus, cross-border workers, ( 9 ) who work in the Netherlands but reside elsewhere, and their family members are covered. By contrast, EU citizens who are not economically active in the Netherlands qualify for funding after five years of lawful residence in the Netherlands.

17. In accordance with Article 2.13(1)(d) of the Wsf 2000, as of 1 September 2007, a student is not entitled to study finance if, for the funding period concerned, he is eligible for an allowance towards meeting the costs of access to...