February 21st, 2012 by James Goudie KC

Advocate General Sharpston begins her Opinion, delivered on 16 February 2012, in Case C-542/09, European Commission v Kingdom of the Netherlands, with an important historical reminder:

            “Erasmus of Rotterdam was an early beneficiary of funding to study abroad. The then bishop of Cambray, Henry of Bergen (for whom Erasmus had started to work as secretary), gave him both leave and a stipend in 1495 to go and study at the University of Paris. Erasmus never looked back; and, in a career that spanned Paris, Leuven, Cambridge and Basel, he became arguably the outstanding scholar of his generation: the ‘Prince of the Humanists’. It is tolerably safe to say that he put the funding for his university studies abroad to excellent use – and, indeed, the current exchange programmes between EU universities bear his name.”

The Advocate General continued that modern day compatriots of Erasmus now enjoy similar good fortune.  Under the Law on the Financing of Studies, the WSF, they can often obtain funding for Higher Education pursued outside the Netherlands. The question before her was whether the detailed rules governing the grant of such funding – in particular, the rule under which an applicant must, in addition to being eligible for funding to study in the Netherlands, also have resided lawfully in the Netherlands during at least three out of the last six years (the ‘three out of six years rule’) – fall foul of Article 45 TFEU (formerly Article 39 EC) and Article 7(2) of Regulation (EEC) No 1612/68  inasmuch as they discriminate indirectly and without justification against migrant workers and their dependent family members. The Advocate General’s conclusion was that they did not fall foul, and she has proposed to the Court of Justice accordingly.  As regards the residence requirement indirectly discriminating against migrant workers, she said

            “61. A requirement of past, present or future residence (especially if it stipulates residence for a particular duration) is intrinsically likely to affect national workers of a Member State less than migrant workers who are in a comparable situation. That is because such a condition always distinguishes between workers who do not need to move to satisfy it and workers who do need to move. The former are usually, although possibly not invariably, more likely to be nationals of the host Member State”

Not only was the residence requirement not justified on the basis of an economic objective, in any event the residence requirement was not appropriate to achieve such an objective.  Moreover, it could not be justified by reference to the social objective of increasing student mobility from the Netherlands to other Member States.  This was a legitimate aim, serving the public interest, by promoting cultural and linguistic diversity and enhancing professional development, and contributing to a pluralistic society.  However, again, the residence requirement was not appropriate or proportionate to achieve that objective.  The Advocate General was (para 147) not convinced that there is an obvious link between where students reside prior to pursuing higher education and the likelihood that they will return to that Member State after completing their studies abroad. She did not regard it as inherently likely that a majority of students who reside in the Netherlands and then study abroad will necessarily return to reside in the Netherlands. There may be ways of encouraging that to happen, but it is not self-evident that past residence is a good way of predicting where students will reside and work in the future.

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