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Studying Abroad with Benefits from ‘Home’: the Martens Judgement

Can EU law effectively help the mobility of students? EU law does not require Member States to provide for a study finance system or maintenance grants for higher education, either at home or abroad. When Member States do, though, the rules for obtaining a grant must comply with the right to freedom of movement and residence across the European Union, either pursuant to the rules on workers/self-employed or those relating to Union citizenship. This is also valid when the grant is a sort of ‘portable study finance’ to a foreign university (either in the EU or outside of the EU).

This type of grant was at stake in the recent judgement regarding Ms. Martens, a Netherlands citizen who pursued higher education at the University of the Netherlands Antilles in Curaçao. Ms. Martens was eligible for portable study finance; in line with what was required by the Netherlands law, she had declared that she had been living in the Netherlands three out of the last six years prior to enrolment. In fact, she was living in Belgium, where her family also lived, including her father (who sustained her through her studies). For some time her father had been working part-time in the Netherlands as a frontier worker, but he was now working full time in Belgium. Consequently, according to the Netherlands authorities, Ms. Martens had lost her right to portable study finance for the period where her father ceased to be a frontier worker, as she did not meet the residence requirement.

The Court had already ruled in 2012, in a case brought by the Commission v Netherlands, that the three out of six years rule was not in line with EU law, as it created inequality of treatment in accessing portable funding between nationals and migrant workers, including frontier workers (and their dependants). Also in the Martens judgement the Court ruled that the three out of six years rule constitutes a restriction on the freedom of movement and residence, and that the residence requirement is ‘too exclusive’ and ‘too arbitrary’ in evaluating the integration of a student in the Member State granting the portable study finance. These are two interesting sides of the Martens judgement that I will briefly analyse here.

First, in my opinion it is remarkable that the Court reaches its conclusion on the basis of Article 20 and 21 TFEU on Union citizenship and not Article 7(2) of Regulation No 1612/68 on maintenance of social advantage for a dependant of a frontier worker. For the Netherlands authorities the loss of study finance for Ms. Martens had occurred only after ascertaining that her father was not a frontier worker anymore. Instead of assessing the protection of the freedom of movement of the frontier worker and his dependants (as the Advocate General does in her opinion), the Court evaluated the restriction of Ms. Martens’ right to freely move to Belgium and not to be impeded afterwards in her right to have a study grant from the Netherlands. The fact that the Court derived her right from the Treaty provisions on Union citizenship could either mean that the Court wanted to get rid of the three out of six years rule once and for all, or that the interpretation of the Treaty indeed offers an effective protection for the mobility of students. The Court confirmed that the provisions on Union citizenship prohibit Member States from hindering the right of free movement of their own citizens unless there is a legitimate reason for doing so.

Second, the Members States have set up a (legitimate) integration requirement for Union Citizens before granting study finance in order to prevent unreasonable economic burdens, but often they have framed it as a residence requirement, whether of permanent residence or of a limited period, as in the earlier case from the Netherlands. The Court reiterates (as previously done in Prinz and Seeberger and Morgan and Bucher) that integration cannot be measured by looking at residence alone; a requirement of a certain period of residence left alone does not say much about the level of integration, or the real link between a person and a country. It is noteworthy that the expression ‘genuine link’ is (perhaps?) borrowed from international law and the relative doctrine for determining nationality. After all, isn’t Ms. Martens a Netherlands national? Didn’t she go back to the Netherlands to work after her studies in Curaçao? What more of a genuine link to the country sustaining her studies could she prove? The Member States could then perhaps feel encouraged to tailor a system where other elements (named in the Martens judgement at par. 41) such as nationality, schooling, family, employment, language skills, or the existence of other social and economic factors, could all be combined to define ‘integration’.
Maybe the Martens ruling confirms that Member States should stop penalizing their own citizens for using their EU rights..?