Balancing Student Mobility Rights and National Higher Education Autonomy in the European Union [1 ed.] 9789004344457, 9789004344402

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Balancing Student Mobility Rights and National Higher Education Autonomy in the European Union

Nijhoff Studies in eu Law Series Editors Prof. Fabian Amtenbrink (Erasmus University Rotterdam) Prof. Ramses A. Wessel (University of Twente)

VOLUME 12 Nijhoff Studies in European Union Law is a refereed scholarly monographs ­series dedicated to the critical analysis of the current state and development of European Union law in a broad sense. Apart from constitutional, ­institutional and substantive issues of eu law, the series also embraces ­state-of-the-art ­interdisciplinary, comparative law and eu policies research with a clear link to European integration. Titles in the Nijhoff Studies in European Union Law ­series will be of particular interest to academics, policy makers and practitioners dealing with eu law and policies, as well as national and international (non-) governmental institutions and bodies.

The titles published in this series are listed at brill.com/seul

Balancing Student Mobility Rights and National Higher Education Autonomy in the European Union By

Alexander Hoogenboom

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Hoogenboom, Alexander, author. Title: Balancing student mobility rights and national higher education : autonomy in the European Union / by Alexander Hoogenboom. Description: Leiden ; Boston : Nijhoff, [2017] | Series: Nijhoff studies in EU law ; volume 12 | Includes bibliographical references and index. Identifiers: LCCN 2017033469 (print) | LCCN 2017035372 (ebook) | ISBN 9789004344457 (e-book) | ISBN 9789004344402 (hardback : alk. paper) Subjects: LCSH: Students--Legal status, laws, etc.--European Union countries. | Education, Higher--Law and legislation--European Union countries. | Right to education--European Union countries. | Student mobility--European Union countries. | Universities and colleges--Law and legislation--European Union countries. Classification: LCC KJE6313 (ebook) | LCC KJE6313 .H66 2017 (print) | DDC 344.24/079--dc23 LC record available at https://lccn.loc.gov/2017033469

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2210-9765 isbn 978-90-04-34440-2 (hardback) isbn 978-90-04-34445-7 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface ix 1 Introduction 1 1.1 Setting the Scene 1 1.2 Contribution to Existing Literature 8 1.3 Definitions and Concepts 10 1.3.1 Scope ratione personae: The Student from an eu/eea Member State 10 1.3.2 Scope ratione materiae: Mobility 16 2 Student Mobility: Myths, Identities and Realities 20 2.1 Historical Context 20 2.1.1 The Mobility Blueprint: The Middle Ages 20 2.1.2 The Educational Grand Tour: Renaissance 22 2.1.3 Countervailling Trends: Mobility Lost in the Age of Nationalism 23 2.1.4 Rebuilding Post-War: Student Mobility and the European Economic Community, the European Union and the Bologna Process 24 2.2 Student Mobility and eu Economic Growth 28 2.2.1 The Premise: Tertiary Higher Education, the Highly Skilled and Economic Growth 29 2.2.2 Student Mobility in Tertiary Education and the Contribution to the eu Economy 36 2.2.3 Allocation: The Evidence 38 2.2.4 The ‘value added’ of Student Mobility 46 2.2.5 The Economic Benefits of Student Mobility 50 2.3 Student Mobility and Citizenship of the European Union 51 2.3.1 The Legal Dimension to Union Citizenship 55 2.3.2 The Contribution of Mobile Students: Catalyst for the Legal Development of Union Citizenship 57 2.3.3 Union Citizenship as a Legal Status and Its Wider Role 64 2.3.4 The Political Dimension of Union Citizenship: Mobility of Students as a Means to Promote a Sense of European Identity and Community 66 2.3.5 On balance: Student Mobility as a Transformative Experience 75 2.4 Conclusion 75

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3 The Legal Framework for Student Mobility in the European Union 77 3.1 The Homo Academicus as eu Citizen 80 3.1.1 eu Citizenship: The Basic Concept 80 3.1.2 eu Citizenship: The Underlying rationale 81 3.1.3 The eu and Zum ewigen Frieden 85 3.1.4 The eu Citizen as Kantian Cosmopolitan 89 3.1.5 Clarifying Free Movement Concepts and Their Inherent Tensions 90 3.2 Mobile Students as Citizens and Their Rights under eu Law 94 3.2.1 Student Statuses under eu Law 94 3.2.2 Approach to Discussing eu Free Movement Law Applying to Students 99 3.2.3 Residence Rights 101 3.2.4 Special Residence Situations, Multiple Statuses and Their Relationship with Equal Treatment 105 3.2.5 Equal Treatment Rights and beyond: Access to Education and Study Facilitating Benefits 108 3.2.6 Access to Education 114 3.2.7 Benefits Facilitating the Free Movement of Students 121 3.3 Discussion and Development of the Legal Framework 134 3.3.1 The Principle of Access to Higher Education Offered in one of the Member States of the eu 136 3.3.2 Access to Study Facilitating Benefits in the Host Member State 147 3.3.3 Access to Study Facilitating Benefits for Study Abroad: Portable Student Grants and/or Loans 155 3.4 Conclusion 159 4 Student Mobility from a National Perspective: Country Studies 162 4.1 The Tertiary Education System of Belgium (Flanders): Issues of Financing and Student Grants 163 4.1.1 Background: The Organisation of the Education Sector 163 4.1.2 Principles of Higher Education Funding 164 4.1.3 Principles of Funding Student Participation in Higher Education 169 4.2 The Tertiary Education System of the Netherlands: Issues of Financing and Student Grants 175 4.2.1 Background: The Organisation of the Education Sector 175 4.2.2 Principles of Higher Education Funding 177 4.2.3 Principles of Funding Student Participation in Higher Education: The Wet Studiefinanciering 2000 184

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4.3 The Tertiary Education System of Sweden: Issues of Financing and Student Grants 192 4.3.1 Background: The Organisation of the Education Sector 192 4.3.2 Principles of Higher Education Funding 193 4.3.3 Principles of Funding Student Participation: The Studiestödslag 199 4.4 The Tertiary Education System of the United Kingdom (England): Issues of Financing and Student Grants 205 4.4.1 Background: The Organisation of the Education Sector 205 4.4.2 Principles of Higher Education Funding 207 4.4.3 Principles of Funding Student Participation in Higher Education: The Student Support System of England 211 4.5 Issues of eu Law: An Analysis 219 4.5.1 Renvoi Clauses: Importing eu Law without Defining How 219 4.5.2 Conditions of Access to Higher Education and Higher Education Funding Principles: Compatibility with eu Law 225 4.5.3 Access to Student Grants and/or Loans: Compatibility with eu Law 232 4.5.4 Country-specific Issues of eu Law Concerning Financial Support for Students 236 4.6 Brexit and Continued Relevance of the Analysis Concerning uk (England) 263 4.7 Conclusion 266 5 Student Mobility in the European Union: The Way Forward 269 5.1 The Rights of Union Citizens in Pursuit of Education Abroad 270 5.1.1 The Citizenship Dimension 270 5.1.2 The Fundamental Rights Dimension 274 5.1.3 Sub-conclusion 277 5.2 The National Perspective: eu Respect for Member States’ National Higher Education Systems 277 5.2.1 Different Burdens 279 5.2.2 Different Impacts 282 5.2.3 Beggar Thy Neighbour and Member State Competences in Higher Education Policy 290 5.2.4 Sub-conclusion 293 5.3 Maintaining the (Legal) Status Quo: ‘doing nothing’ 293 5.3.1 The Student Perspective & Access to Education: Obstacles to Mobility 295 5.3.2 The Student Perspective & Access to Student Grants and/or Loans: Further Obstacles 296

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5.3.3 The Member State Perspective: Problems with the Status Quo 300 5.4 Improving the Status Quo 303 5.4.1 Promoting Student Mobility: Optimal and Inclusive Policy 303 5.4.2 Protection of National Higher Education Systems and Solidarity as Fairness 304 5.4.3 Sub-conclusion 307 5.5 Policy Options Involving Unilateral Member State Action 307 5.5.1 Quantitative Restrictions (and/or Measures Having Equivalent Effect) Seeking to Restrict Access 308 5.5.2 Financial Restrictions Seeking to Restrict Access of Foreign Students 310 5.6 Policy Options Involving Collective Member State Action 315 5.6.1 Demand Side Interventions: Setting Up a System Coordinating Student Grants and/or Loans 316 5.6.2 Demand Side Interventions: An eu Study Grant and/or Loan System 318 5.6.3 Supply Side Interventions: How to Protect National Higher Education Systems 327 5.7 Evaluation and Proposed Legal Framework 342 5.7.1 euslos: Institutional Structure 343 5.7.2 euslos: Substantive Elements 344 5.7.3 The Emergency Procedure 346 5.7.4 The Legal Framework 347 5.8 Conclusion 352 Bibliography 353 Index 391

Preface In this monograph I have tried to highlight the value of student mobility for the European Union, both in economic terms but also in the broader sense of being capable of fostering a sense of European identity. At the same time, the book argues that Member States have justified claims in seeking to, in certain circumstances, derogate from the applicable eu law in order to be able to organize their higher education systems in accordance with domestic democratic preferences. In reconciling these two aims, this book argues that a comprehensive European student loan system can and should be established, while at the same time it may be necessary to adjust the principles governing the free movement of students where Member States suffer unduly under the influx of foreign students. However, in the light of recent events, it would be remiss not to make a few further remarks. In times where the citizens of Europe are concerned rather than enthusiastic about persons crossing borders, and where some Member States use their protected competences to detract from rather than build up higher education systems, two points in particular would seem important. First, the European Union must remain steadfast and actively promote its citizens to be mobile. There currently seems to be a strong undercurrent in European societies which views mobility of persons in the eu in an ­overwhelmingly negative light: a threat to the welfare state, a threat to cohesiveness, a threat to identity. An important means to address this perception is to create opportunities for positive mobility experiences, such as study or training ­periods abroad. Going abroad (for more than just a holiday) is – I think – a transformative experience. It is capable of generating new insights into neighbouring cultures and fostering a reformed sense of ‘community’; one that extends beyond borders. In turn, such (ex) mobile persons may by their very presence become advocates for viewing mobility in a positive sense. Secondly, the European Union must be braver in using the sword of eu law to defend its founding values. Respect for Member State autonomy in higher education matters and the need to guard against excessive incursion by European Union law and policies does not, and should not, insulate Member States from eu scrutiny where warranted. The measures adopted against the Central European University by the regime led by Viktor Orbán are a case in point. I submit in this monograph that higher education institutes can invoke the legal principles governing the free movement students to challenge restrictive measures – and I hope that this possibility is taken up by or on behalf of the institution, its staff and its students.

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A monograph, despite the name on the cover, is never truly the work of only one person. In that respect this book owes an immeasurable debt to Prof. dr Bruno de Witte, prof. dr Hildegard Schneider and Dr Anne-Pieter van der Mei for their patient guidance, academic and otherwise, as well as for their careful reading and thoughtful comments. In addition, my partner, friends, family and colleagues have always been along for the ride, and their support and trust is gratefully acknowledged. Finally, I would like to express my gratitude to the European Law Faculties Association for having seen fit to honour this work with the elfa 2016 Thesis Award – I feel truly honoured. The main research for this book was closed the 31st of May 2016, with a substantial update to reflect the law as it stands on the 7th of April 2017.

Chapter 1

Introduction 1.1

Setting the Scene

There is a long tradition within Europe, going back to the ancient Greeks, of students crossing borders in search of education.1 In the last decades, such student mobility has also received the active support of policy makers at the national and European level. The so-called Bologna process, an intergovernmental process of voluntary cooperation2 between the ministers for education of some 48 European countries and the European Commission,3 sets the ‘promotion of mobility by overcoming obstacles to the effective exercise of free movement’ as one of its founding objectives.4 The 2009 Communiqué underlined the need for effective policies at the national level seeking to promote mobility, including ensuring the portability of student grants and loans.5 This objective seems to have been taken seriously: a recent study confirms that, indeed, many countries have since introduced the possibility of portable s­ tudent grants and/or loans, thereby providing students with financial support for their mobility aspirations.6 Within the eu context support for student mobility is also strong.7 Article 165 of the Treaty on the Functioning of the European Union (tfeu) 1 The historical context is developed in greater detail in Chapter 2. 2 S. Garben, ‘The Bologna Process: From a European Law Perspective’, 16(2) European Law Journal (2010) 186, 190. 3 See: http://www.ehea.info/members.aspx last visited 07.04.2017. 4 See Joint Declaration of the European Ministers of Education convened in Bologna on the 19th of June 1999 (the ‘Bologna Declaration’). 5 Communiqué of the Conference of European Ministers Responsible for Higher Education, Leuven and Louvain-la-Neuve, 28–29 April 2009, ‘The Bologna Process 2020 – The European Higher Education Area in the new decade’, para. 18, available at: http://media.ehea.info/ file/20090223-Ostend/54/2/BFUG_Board_CZ_19_4_draft_communique_200209_594542.pdf last visited 07.04.2017. 6 Eurydice, Towards a Mobility Scoreboard: Conditions for Learning Abroad in Europe, (Publications Office of the European Union, 2013), p. 19ff. 7 See also: B. Wächter, ‘European mobility policies’, in I. Ferencz and B. Wächter (eds.), European and national policies for academic mobility: Linking rhetoric, practice and mobility trends, aca Papers on International Cooperation in Education, (Lemmens Medien GmbH, 2012), p. 10.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344457_002

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­summarises the current objectives and scope for action: the Union ‘shall contribute to the development of quality education by encouraging cooperation between the Member States’. As a particular objective in that context, the Union shall ‘[encourage] mobility of students and teachers’.8 Current eu policy is shaped by the overall action plan set out in the Education and Training Strategic Framework for 2020(‘ET2020’),9 which pays particular attention to student mobility,10 and it is within that context that the Council has set the aim that 20% of all higher education graduates should have some higher education or related training experience abroad by 202011 – in essence taking over the aim set out by the ministers of education in the context of the Bologna Process. In terms of concrete action, one of the flagship initiatives in this area is the so-called Erasmus programme, which over the course of its existence has provided the institutional framework as well as the financial support enabling more than three million students to study abroad.12 It is, in fact, frequently touted as one of the success stories of the eu, symbolising effective action to bring Europeans closer together.13 Moreover, the case law of the Court of Justice of the European Union on the rights of free movement of students, as well as its expansive reading of the right to non-discrimination in education matters has done much to promote student mobility.14 For a long time, this objective of promoting student mobility was not seriously questioned. Rather, it was rather blithely assumed that such mobility would bring the peoples of the Europe closer together and that the economies of the Member States of the eu would be strengthened as a result of such exchange.15 However, in recent years, this sense of ‘more is better’ has been increasingly questioned. Member States have started to voice concerns as regards 8 9 10 11 12

13

14 15

See Article 165(2) tfeu, second indent. Council conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (‘et 2020’), oj [2009] C 119/2. See Council conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (‘et 2020’), oj [2009] C 119/2, p. 8. Council Conclusions on a benchmark for learning mobility, oj [2011] C 372/31, p. 34. European Commission Press Release IP/13/657, Number of Erasmus students tops 3 million, available at: http://europa.eu/rapid/press-release_IP-13-657_en.htm, last visited 07.04.2017. J. Truszczyński, ‘Is Erasmus Europe’s success story?’ Open Democracy of 17 December 2012, available at: https://www.opendemocracy.net/can-europe-make-it/jan-truszczy% C5%84ski/is-erasmus-europes-success-story last visited 07.04.2017. A-P van der Mei, Free Movement of Persons within the European Community: Cross-Border Access to Public Benefits, (Hart Publishing, 2003), p. 391ff. See: Report of the High Level Expert Forum on Mobility, June 2008, available at: http:// move-project.eu/fileadmin/move/downloads/links/mobilityreport_en.pdf last visited 07.04.2017.

Introduction

3

some of the potential negative impacts that (excessive) student mobility may have on (the financial sustainability of) national higher education systems, as can be illustrated by the following newspaper headings: How foreign students are fleecing Britain: Taxpayers are owed £46 billion in outstanding student loans. So why are foreigners being allowed to vanish with no intention of paying their debts?16  The Dutch are getting a diploma paid for by the Flemish taxpayer17  Nice all those Germans [in the Netherlands], but it is going to be expensive18 The issue of ‘who pays?’ was also highlighted in the context of the Bologna process, in which there is a call for more ‘balanced mobility’, and reference was made to the potential disadvantages for countries confronted with ‘high levels of incoming degree and credit mobility’.19 Should serious imbalances persist, ‘dealing with the matter multilaterally’ was put forward as an option.20 Events within the European Union confirm this. The Walloon Community of Belgium and Austria have been in and out of court defending the introduction of measures seeking to curb the influx of French and German students respectively.21 These countries argue that their national higher education ­systems suffer from great strain as a result of the influx of foreign students 16

17 18 19

20 21

S. Bird, ‘How foreign students are fleecing Britain: Taxpayers are owed £46 billion in outstanding student loans. So why are foreigners being allowed to vanish with no intention of paying their debts?’ Daily Mail of 14 December 2013, available at: http:// www.dailymail.co.uk/news/article-2523527/How-foreign-students-fleecing-Britain.html last visited 07.04.2017. It also features the interesting seemingly ‘related’ subheading of ‘Higher education applications from Romania have surged’. Free translation of the heading of: De Standaard, ‘Nederlanders halen diploma op Vlaamse kosten’, of 17 September 2012. Free translation of the heading of: B. Funnekotter, ‘Leuk al die Duitsers, maar het wordt wel duur’, nrc Handelsblad of 6 september 2011. ehea Ministerial Conference, Bucharest 2012, Mobility strategy 2020 for the European Higher Education Area (ehea) (‘Mobility for Better Learning’), p. 2, available at http:// media.ehea.info/file/2012_Bucharest/67/3/Bucharest_Communique_2012_610673.pdf last visited 07.04.2017. See further: I. Ferencz, ‘Balanced mobility across the board – a sensible objective?’ in A. Curaj et al. (eds.), The European Higher Education Area: Between critical reflections and future policies, (Springer, 2016), p. 29ff. Ibid. See most recently Case C-73/08, Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, ECLI:EU:C:2010:181. See further H. Mahony, ‘University quotas on foreign students may be allowed, says eu court’, EUobserver of 14 April 2010.

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due to their open access policy (lenient access criteria, low tuition fees). This approach has proven very attractive to students coming from more populous, language-sharing neighbours that apply more restrictive access policies. Similarly, the Flemish Community of Belgium recently decided to introduce higher tuition fees across the board in order to boost the financial sustainability of the higher education sector.22 In the debate surrounding the increase, members of the Flemish parliament pointed out that foreign students contributed significantly to the budgetary strain that the increase sought to resolve.23 Other Member States, such as the Netherlands24 and United Kingdom,25 are starting to voice similar concerns. A related issue constitutes access to benefits and allowances meant to provide the student with financial support during his or her study period: so-called student grants and loans. Here too, pitched battles are fought before the Court of Justice as to the legality of limiting the access of foreign or mobile Union citizens to such (portable) benefits.26 Finally, one must consider these developments in their context. While still dealing with the aftermath of the financial crisis, the European Union is faced with a series of challenges: the ongoing refugee crisis, the discussion relating to the ‘fair’ mobility27 of Union citizens, and the rise of populism have painfully 22

23 24

25

26

27

See Article ii.209 Besluit van de Vlaamse Regering tot codificatie van de decretale bepalingen betreffende het hoger onderwijs, Belgisch Staatsblad 27.02.2014 (as amended). See for the reasoning behind the increase http://www.hildecrevits.be/nl/nieuwe-tarieven -studiegelden-hoger-onderwijs-met-sociale-toets last visited 07.04.2017. De Redactie, ‘N-VA: “Nederlandse studenten in Vlaanderen kosten 134 miljoen”’, 28 November 2014. See e.g. E See E. Heuts, interview with Ferdinand Mertens (ex-public servant at the Ministry for Education, Culture and Science, Transfer 10 April 2011), pp. 8–10. See also the report in the Annex to Kamerstukken ii 2009/10, 31 288, nr. 96: ‘Differentiëren in drievoud’ in which recommendations are made with a view to reconciling an open Dutch education system with what is perceived as the financial reality and H. Maassen van den Brink and W. Groot, ‘Wij subsidiëren de buitenlandse student’, de Volkskrant of 22 December 2011. S. Bird, ‘How foreign students are fleecing Britain: Taxpayers are owed £46 billion in outstanding student loans. So why are foreigners being allowed to vanish with no intention of paying their debts?’ Daily Mail of 14 December 2013. See recently e.g. Joined Cases C-401/15 to 403/15, Depesme and Kerrou a.o v Ministre de l’Enseignement supérieur et de la Recherche, ECLI:EU:C:2016:955, Case C-Case C-238/15, Verruga a.o v Ministre de l’Enseignement supérieur et de la Recherche, ECLI:EU:C:2016:949, Case C-233/14, Commission v the Netherlands (student travel concessions), ECLI:EU:C:2016: 396 and Case C-359/13, B. Martens v Minister van Onderwijs, C ­ ultuur en Wetenschap, ECLI:EU:C:2015:118. See the speech by the eu Commissioner for Employment, Social Affairs, Skills and Labour Mobility, Marianne Thyssen at Maynooth University of Ireland: Speech/15/6074, Speech

Introduction

5

highlighted the lack of willingness of the peoples of Europe (or perhaps their political leaders in particular) to share burdens and to show solidarity.28 These developments have also had legal consequences in that in a quartet of rulings, including Dano,29 Alimanovic,30 Garcia Nieto31 and Commission v United Kingdom,32 the Court seems to have retreated from its previous pro-mobility stance towards one bent on preventing ‘welfare tourism’.33 Another challenge is formed by the pending Brexit, which, apart from its impact on the eu constitutional legal order, will also have a profound effect on student mobility flows: the British universities traditionally attract a large number of students from the European continent, but with residence and post-study work opportunities no lon ger guaranteed by eu law this may well change in the future. Students might instead seek alternatives on the continent as moreand more higher education institutes offer courses taught in English. These developments strongly highlight the need for research exploring the tension between the ideal of promoting student mobility – and the related (mobility) rights of Union citizens – and the possible negative consequences of such mobility for (some of) the Member States of the eu. Indeed, this monograph seeks to address the overarching question of how to safeguard mobility

28

29 30 31 32 33

by Commissioner Marianne Thyssen on Europe’s vision for fair labour mobility, http:// europa.eu/rapid/press-release_SPEECH-15-6074_en.htm. See e.g. the remarks of un Higher Commissioner for Refugees Filippo Grandi on the lack of solidarity of the eu in handling the refugee crisis: S. Chappell, unhcr despairs over Europe’s lack of solidarity in handling refugee crisis, Euronews of 24 February 2016, available at: http://www.euronews.com/2016/02/24/unhcr-despairs-over-lack-of-solidarity-in -europe-in-handling-refugee-crisis/. See on the latter issue e.g. H. Verschueren, ‘Preventing “Benefit Tourism” in the eu: A Narrow or Broad Interpretation of the Possibilities offered by the ecj in Dano?’ 52(2) Common Market Law Review (2015) 363. Case C-333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358. Case C-67/14, Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others, ECLI:EU:C:2015:597. Case C-299/14, Vestische Arbeit Jobcenter Kreis Recklinghausen v Garcia-Nieta.o., ECLI: EU:C:2016:114. Case C-308/14, Commission v the United Kingdom, ECLI:EU:C:2016:436. See D. Thym, ‘The elusive limits of solidarity: Residence rights of and social benefits for economically inactive Union citizens’, 52(1) Common Market Law Review (2015) 17, p. 25 and C. O’Brien, ‘The ecj sacrifices eu citizenship in vain: Commission v United Kingdom’, 54(1) Common Market Law Review (2017) 209. It must be noted, though, that there is little evidence of such tourism: J. Carmen et al., ‘A fact finding analysis on the impact on the Member States’ social security systems of the entitlements of non-active intra-EU-migrants to special non-contributory cash benefits and healthcare granted on the basis of residence’, (icf ghk and Milieu Ltd., 2013), available at: http://ec.europa.eu/social/BlobServlet?docId=10972 last visited 07.04.2017.

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rights of Union citizens for study purposes within the eu while simultaneously ensuring the sustainability of the national higher education systems of (certain) Member States. In addressing this question, this book has three main aims: – To show that the current legal framework governing student mobility34 in the European Union as developed by the Court of Justice lacks coherence. – To show that Member States fail to fully comply with eu law where it concerns the free movement of students and the right to non-discrimination on grounds of nationality. – To make recommendations for a better balancing of the mobility rights of students and the legitimate concerns of Member States seeking to protect their education choices and the organisation of their higher education systems. The argument developed is divided over a set of four chapters. The purpose of the second chapter is to give context and background to ‘student mobility’ as desirable phenomenon through a systematic review of legal, economic and political science literature. This chapter will also briefly touch upon the historical context of student mobility in Europe to show that the rationales for student mobility have changed over time. In that light, the chapter seeks to address the question whether present day student mobility is indeed a form of educational tourism, a luxury as it were, or whether it remains an important necessity. Indeed, an important ‘driving force’ behind student mobility in the Middle Ages was the lack of (good) educational opportunities in the region; an issue that is much less pressing today with widespread, mass higher education institutes being available short distances away. Similarly, the classic humanist view, whereby educational mobility and associated experiences were considered the epitome of personal development also holds somewhat less currency with policy makers today, in particular in the light of the pressing financial crisis, as well as the general post-Enlightenment emphasis on rationalism and utility in (European) politics.35 As such, this chapter is dedicated to identifying and reviewing the alleged ‘benefits’ of student mobility and ­whether, on balance, student mobility can be seen as desirable and thus to be actively promoted and supported. The third chapter then seeks to set out the ‘current state of affairs’ when it comes to student mobility in the European Union: it engages in a critical 34 35

In the sense of degree mobility, see below for a definition. See the compelling argument made by M. Oakeshott, Rationalism in politics and other essays, (Liberty Fund, 1991), p. 6ff.

Introduction

7

analysis of the case law of the Court of Justice pertaining to students crossing borders in search of education, thereby drawing the boundaries of the legal framework as it were. The purpose is to establish which students and under what conditions can claim equal treatment as regards access to education, as well as study facilitating benefits such as student grants and student loans. In addition, this chapter will seek to inquire into the underlying rationale of the case law as it has developed, comment on its coherence and discuss avenues for future directions. The fourth chapter will look at the national context: In particular, it seeks to understand and describe the organisation of the higher education systems, their financing and the means to promote higher education attendance through the provision of grants and loans to enrolled students. For that purpose, the legislation and policy of four Member States of the eu (Belgium (Flanders)), the Netherlands, Sweden, and the uk (England) will be analysed. These countries have been chosen as they represent points on a scale. Sweden operates a tuition-free higher education system with generous student grant and loan ­provision – the rationale for this is that an educated student is a valuable member of society. The uk (England) by contrast charges high tuition fees and provides student loans at market interest rates – here the logic of the student as selfinvestor prevails. Belgium (Flanders) and the Netherlands represent the middle ground, but they have differing perspectives on the role of the student: the former sees the student still as a ‘child’ and a member of the family and ­benefits are geared towards enabling the student to study within that context, while in the Netherlands the independence of the student is emphasised, in which both the ‘investor’ and ‘good citizen’ principles are part of the policy mix. These country studies are a worthwhile exercise in order to gain insight into the potential ‘impact’ of foreign students on such a system and with a view to considering what respecting the competence of the Member States to ­organise their higher education system in accordance with their philosophies and priorities would entail. A secondary goal will be to analyse critically the conditions for higher education access as well as the conditions under which student grants and loans are provided to (migrant) eu citizens with a view to testing them against the framework as set out in Chapter 3 and in order to ­determine the compliance of the Member States with eu law. The object of the fifth and last chapter is to consider different ‘solutions’ and/or policy options with a view to determining ‘what the law ought to do’ in the matter of the mobility of students in the European Union. In particular, it will be argued that the ‘status quo’ fails both to promote student mobility coherently and effectively and to protect certain Member States from some of the negative consequences of such (unmanaged) mobility. Rather, alternatives

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should be considered and in particular solutions at the eu level such as an (extended) student loan system, as well as a tuition fee credit system are both legally possible and politically feasible and should be considered. 1.2

Contribution to Existing Literature

There is an extensive body of legal literature that deals with the various aspects of student mobility.36 In the view of this author, however, three gaps exist in 36

For an overview of the literature before 2000, see A-P van der Mei, Free Movement of Persons Within the European Community: Cross-Border Access to Public Benefits, (Hart Publishing, 2003), Chapter 5, footnote 4. A-P van der Mei, Freedom of Movement and Financial Aid for Students: Some Reflections on Grzelczyk and Fahmi and Esmoris-Cerdeiro Pinedo Amoris, 3(3) European Journal of Social Security (2001) 181, A-P van der Mei, Freedom of movement for indigents: a comparative analysis of American constitutional law and European Community law, 19(3) Arizona Journal of International and Comparative Law (2002) 803, J. Garman, ‘Etudiants Sans Frontieres: Out-of-State Tuition, the Right to Travel, and the European Union’, 23(2) Penn State International Law Review (2004) 283, C. Barnard, Case C-209/03, R (On the Application of Danny Bidar) v. London Borough of Ealing, Secretary of State for Education and Skills, Judgment of the Court (Grand Chamber) 15 March 2005, Not Yet Reported, 42 (5) Common Market Law Review (2005) 1465, C. Barnard, ‘Of Students and Babies’, 64(3) Cambridge Law Journal (2005) 560, G. Davies, ‘Higher Education, Equal Access And Residence Conditions: Does eu Law Allow Member States To Charge Higher Fees To Students Not Previously Resident?’ 12(3) Maastricht Journal for eu and Comparative Law (2005) 227, M. Dougan, ‘Fees, grants, loans and dole cheques: Who covers the costs of migrant education within the eu’, 42(4) Common Market Law Review (2005) 943, P. Hilpold, ‘Hochschulzugang und Unionsbürgerschaft’, 16(21) Europaische zeitschrift für wirtschatsrecht (2005) 647, S. Hennion-Moreau, ‘Les droits des étudiants-citoyens aux aides d’Etat dans l’Union européenne’, 4 Revue de droit sanitaire et social (2005) 577, H. de Waele, ‘Europees burgerschap en studiefinanciering: nieuwe rechten, nieuwe beperkingen na het arrest Bidar’, 6 Nederlands Tijdschrift voor Europees Recht (2005) 122, O. Golynker, ‘Student loans: the European concept of social justice according to Bidar’, 31(3) European Law Review (2006) 390, P. Hilpold, ‘Quotenregelungen im Gemeinschaftsrecht – Rehabilitierung eines an sich verpönten Instruments?’ 17(11) Europäische Zeitschrift für Wirtschaftsrecht (2006) 333, R. Clemens, Case C-147/03, Commission of the European Communities v. Republic of Austria, Judgment of the Court (Second Chamber) 7 July 2005, Not Yet Reported, 43(6) Common Market Law Review (2006) 1711, M. Dougan, ‘Cross-border education mobility and the exportation of student financial ­assistance’, 33(5) European Law Review (2008) 723, C. Kohler and N. Görlitz, ‘Auswirkungen des Europarechtlichen Diskriminierungsverbots auf den Bildungssektor: Grundlinien der Rechtsprechung des Europäischen Gerichtshof’, 4(1–2) International Journal for

Introduction

9

­Education Law and Policy (2008) 92, N. Nic Shuibhne, ‘Annotation of Schwarz, Commission v. Germany and Morgan and Bucher’, 45(3) Common Market Law Review (2008) 771, A-C. Simon, ‘La portabilité des bourses d’études dans l’Union européenne’, 1 Revue européenne de droit de la consumnation (2007–2008) 66, O. Golynker, Case C-158/07, Jacqueline Forster v. Hoofddirectie van de Informatie Beheer Groep, Judgment of the Court (Grand Chamber) of 18 November 2008, Not Yet Reported, 46(6) Common Market Law Review (2009) 2021, P. Hilpold, ‘Unterhaltsstipendien für Unionsbürger – Die Rechtssache “Förster” und die Grnezen mitgleidstaatlicher Solidarität’, 20(2) Europäische Zeitschrift für Wirtschaftsrecht (2009) 40, S. Jørgensen, ‘The Right to Cross-Border Education in the European Union, 46(5) Common Market Law Review (2009) 1567, S. O’Leary, ‘Equal treatment and eu citizens: a new chapter on cross-border education mobility and access to student financial assistance’, 34(4) European Law Review (2009) 612, A-P van der Mei, Union Citizenship and the Legality of Durational Residence Requirements for Entitlement to Student Financial Aid, 16(4) Maastricht Journal of European and Comparative Law (2009) 477, H. van Eijken, ‘Zijn er nog grenzen aan gelijkheid? – De spanning tussen gelijke behandeling van Unieburgers versus de bevoegdheidsverdeling tussen de Unie en lidstaten’, 16(6) Nederlands Tijdschrift voor Europees Recht (2010) 181, S. Garben, Case C-73/08, Nicolas Bressol and Others, Celine Chaverot and Others v. Gouvernement de la Communaute Francaise, Judgment of the Court (Grand Chamber) of 13 April 2010, nyr, 47(5) Common Market Law Review (2010) 1493, R. Greaves and A. Scicluna, ‘Commercialization and Competition in the Education Services Sector: Challenges to the Education Services Sector from the Application of Articles 101 and 102 tfeu’, 6 International Journal for Education Law and Policy (2010) 13, C. Götzelmann, ‘How Free is the Free Movement of Students in the European Union? An Analysis of ThirdLevel Cross-Border Education’, 10(1) University College Dublin Law Review (2010) 55 P. Hilpold, ‘EuGH: Beschränkung der Neueinschreibung “nichtansässiger” Studenten’, 21(12) Europäische Zeitschrift für Wirtschaftsrecht (2010) 465, C. Ruhs, ‘Die belgische Quotenregelung un das Urteil des Gerichtshofs in der Rechtssache Bressol’, 9(4) Zeitschrift für Hochschulrecht (2010) 99, D. Tsiros, ‘Maintenance assistance for migrant students: European Union citizenship, equal treatment and the attribution of social rights under the Bidar judgment and beyond’, 63(2) Revue Hellenique de Droit International (2010) 949,A-P van der Mei, ‘Free Movements of Students and the Protection of National Educational Interests: Reflections on Bressol and Chaverot’, 13(1) European Journal of Migration and Law (2011) 123, P. Nicolaides and S. Shamskho, ‘Compatibility of Dutch School Benefits with eu Law’, 17(4) Maastricht Journal for European and Comparative Law (2010), K. Käsper and T. Karikmäe, ‘Access to higher education in the eu: Evolving case law of the cjeu, 14(4) European Journal of Law Reform (2012) 399, P. Dunne, ‘Education without Borders: The Freedom of Movement for Students in eu Law’, 2 King’s Inns Student Law Review (2012) 1, P. Neuvonen, ‘In search of (even) more substance for the “real link” test: Common on Prinz and Seeberger’, 39(1) European Law Review (2013) 125, H. Skovgaard-Petersen, ‘There and back again: portability of student loans, grants and fee support in a free movement perspective’, 38(6) European Law Review (2013) 783, F. de Witte, ‘Who Funds the Mobile Student – Shedding Some Light on the Normative Assumptions Underlying eu Free Movement Law: Commission v. Netherlands’, 50(1) Common Market Law Review

10

CHAPTER 1

that body of literature that this this research project seeks to address. First, there is no recent, comprehensive study which provides an overview of the case law of the Court of Justice concerning the free movement of students and which engages in a critical analysis thereof. The last such attempt dates back to 2009,37 after which in particular a slew of judgments concerning both access to education38 and the portability of student grants and/or loans have been rendered.39 Secondly, an in-depth country study of four Member States focussing on the financing of their systems of higher education and the operation of their systems of student grants and/or loans from a legal perspective has not yet been undertaken; even less has the overall compliance of the various Member States with the case law of the Court been discussed and analysed. Finally, this project seeks to develop a set of principles informed by a comprehensive study into the various effects of student mobility in the European Union, the ‘good and the bad’ as it were, with a view to reconciling the mobility rights of students with the interests of the Member States: a challenge that so far has only been addressed in an explorative manner in a landmark study by Van der Mei.40 1.3

Definitions and Concepts

1.3.1 Scope ratione personae: The Student from an eu/eea Member State Where reference is made to the ‘student’, it should be taken to refer to a national of one of the Member States of the eu (see for the ‘mobility’ aspect

37 38 39 40

(2013) 203, S. O’Leary, ‘The curious case of frontier workers and study finance: Giersch; Case C-20/12, Elodie Giersch v Etat du Grand-Duche de Luxembourg’, 51(2) Common Market Law Review (2014), H. van Eijken, ‘De zaak Martens: studiefinanciering en het vrij verkeer van eu burgers’, 63(10) sew – Tijdschrift voor Europees en Economisch Recht (2015) 149–156, M. Olivas, ‘The growing role of immigration law in universal higher education: case studies of the United States and the eu’, 37(2) Houston Journal of International Law (2015) 353, H. Skovgaard-Petersen, Market Citizenship and Union Citizenship: An Integrated Approach – The Martens Judgment, 42(3) Legal Issues of Economic Integration (2015) 281. S. Jørgensen, ‘The Right to Cross-Border Education in the European Union’, 46(5) Common Market Law Review (2009) 1567. Case C-73/08, Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, ECLI:EU:C:2010:181. Starting with Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:34. A-P van der Mei, ‘eu Law and Education: Promotion of Student Mobility versus Protection of Education Systems’, in M. Dougan and E. Spaventa (eds.), Social Welfare and eu law, (Bloomsbury Publishing, 2005), p. 239–240.

Introduction

11

below). Unless otherwise specified, therefore, it excludes so-called ‘thirdcountry nationals’. This is justified because the legal framework for this latter ­category of persons is fundamentally different and, consequently, the ‘issues’ at stake much less pressing. In particular, third-country nationals cannot, in general terms, rely on the principle of non-discrimination on grounds of nationality such as that specified in Article 18 tfeu,41 allowing Member States a relatively free hand to restrict their access to education-related benefits (whether in-kind, such as higher education provision, or in cash, such as student grants or student loans). For certain categories of third-country nationals, the situation is different however. First, the position of Norwegian, Icelandic or Lichtenstein nationals (nil-nationals) is often harmonised with that of eu nationals.42 There is some ground for doing so following Article 6 of the eea agreement, which provides: Without prejudice to future developments of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement. Moreover, the Citizen’s Rights Directive (Directive 2004/38),43 which includes a principle of equal treatment44 and sets out specific provisions which pertain to students,45 also applies to eea nationals.46 41

42

43

44 45 46

Joined cases C-22/08 and C-23/08, Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (arge) Nürnberg 900, ECLI:EU:C:2009:344, para. 48–53 and Case C-45/12, Office national d’allocations familiales pour travailleurs salariés (onafts) v Radia Hadj Ahmed, ECLI:EU:C:2013:390, para. 35–41. H. Haukeland Fredriksen and C. Franklin, ‘Of Pragmatism and Principles: the eea Agreement 20 Years On’, 52(3) Common Market Law Review (2015) 629, p. 642. See also Case E-26/13, The Icelandic State v Atli Gunnarsson, oj [2015] C 68/3, para. 79–80. Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No 1612/68 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. Article 24(1) Directive 2004/38. E.g. Article 7(1)(c) and 24(2) Directive 2004/38. See Annex viii to the eea Agreement.

12

CHAPTER 1

There may nonetheless be some doubt as to the full application of the Court’s case law as regards student mobility and the interpretation of legal ­provisions reached in that context to the nil nationals. The eea Agreement lacks provisions relating to ‘Union citizenship’,47 the provisions of which the Court has often referred to in order to justify significant legal developments48 or to refuse to extend certain principles developed under eu law to international agreements.49 This has led Haukeland Frederiksen and Franklin to conclude that ‘all rights flowing directly from the eu Treaty rules on Citizenship (…) clearly fall outside the scope of eea law’50 and that: (…) the very fact that there are no provisions in the main part of the eea Agreement mirroring Articles 20 and 21 tfeu means that where the ecj bases its decisions on these provisions, or gives a ‘citizenship reading’ of worker’s rights under eu law, the same direct methods will not be possible under eea law.51 What does this mean for the position of students?. It is submitted here that the current position of the Union citizen under eu law can be largely transferred to the eea national under the eea Agreement. After all, the right of equal treatment as regards access to education stems from the judgment in the Gravier 47

Recital 8 to Decision of the eea Joint Committee No 158/2007 of 7 December 2007 amending Annex v (Free movement of workers) and Annex viii (Right of establishment) to the eea Agreement, oj [2008] L 124/20 specifically provides that ‘“Union citizenship” is not included in the Agreement’. 48 Its introduction was one of the reasons for overturning the ruling in Lair in the case of Bidar: Case C-209/03, The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ECLI:EU:C:2005:169, para. 39. 49 In Ziebell and Demirkan, the lack of corresponding provisions relating to Union citizenship in the Association Agreement between the eec and Turkey was put forward as a reason not to extend the system of protection against expulsion under Directive 2004/38 and the interpretation given the free movement of services (freedom to receive services) to context of the Association Agreement: Case C-371/08, Nural Ziebell v Land BadenWürttemberg, ECLI:EU:C:2011:809, para. 62–74 and Case C-221/11, Leyla Ecem Demirkan v Bundesrepublik Deutschland, ECLI:EU:C:2013:583, para. 35ff and in particular para. 53. For criticism of precisely this point, see V. Hatzopoulos, ‘Turkish service recipients under the eu-Turkey Association Agreement: Demirkan’, 51(2) Common Market Law Review (2014) 647, pp. 656–659. 50 H. Haukeland Fredriksen and C. Franklin, ‘Of Pragmatism and Principles: the eea Agreement 20 Years On’, 52(3) Common Market Law Review (2015) 629, p. 639. 51 Ibid, p. 640.

Introduction

13

case,52 a judgment rendered before the Maastricht Treaty. Similarly, where it concerns access to student grants and loans in the host Member State, the ‘nil’ national is covered: the seminal case law granting student-workers53 and family members of workers54 access to student grants under equal terms to host Member State nationals precedes the introduction of Union citizenship.55 In addition, the situation of the student without an economic link claiming access to student grants and/or student loans is covered: Article 24 of Directive 2004/38 provides for equal treatment in these situations.56 Less clear, however, is the question whether the case law of the Court of Justice (to be discussed in Chapter 3) as regards the portability of financial benefits for students can be transposed to the eea context. This case law, at least where it concerns nationals seeking to invoke eu law against their own Member State, relies heavily on the citizenship provisions. The standard formulation reads more or less as follows: In that regard, it is apparent from settled case-law that national legislation which places certain nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State constitutes a restriction on the freedoms conferred by Article 21(1) tfeu on every citizen of the Union (…).57 However, there is some indication that even this set of case law could be ­extended to nil nationals. In recent case law, the efta Court interpreted ­Article 7 of Directive 2004/38 broadly. Consider the following paragraph: The Court therefore concludes that Article 1(1) of Directive 90/365 and Article 7(1)(b) of Directive 2004/38 must be interpreted such that they confer on a pensioner who receives a pension due to a former employment relationship, but who has not carried out any economic activity in another eea State during his working life, not only a right of residence in relation to the host eea State, but also a right to move freely from the home eea State. The latter right prohibits the home State from 52 53 54 55 56 57

Case 293/83, Françoise Gravier v City of Liège, ECLI:EU:C:1985:69. And/or self-employed persons. And/or self-employed persons. Case C-39/86, Sylvie Lair v Universität Hannover, ECLI:EU:C:1988:322 and Case C-337/97, C.P.M. Meeusen v Hoofddirectie van de Informatie Beheer Groep, ECLI:EU:C:1999:284. See below for the definition of ‘student-worker’, etc. Case C-359/13, Martens, ECLI:EU:C:2015:118, para. 25.

14

CHAPTER 1

hindering such a person from moving to another eea State. A less favourable ­treatment of persons exercising the right to move than those who remain resident amounts to such a hindrance.58 (emphasis by author) Both quotes address what is sometimes referred to as migration d­ iscrimination: whereby a person having exercised mobility is treated less favourably than a person having stayed put.59 Extrapolating the principle as set out by the efta court, one could argue that Article 7(1)(c) of Directive 2004/38, on the right of residence of students, could be given a similar objective-oriented ­interpretation: less favourable treatment due to movement constitutes a ­restriction of the right stipulated in that article. Students with a nil ­nationality could then challenge limitations to the portability of student grants and/ or loans imposed by their home Member State. As such, where it concerns the discussion of the case law and the current status quo as regards the legal framework applying to mobile students, it can be taken, mutatis mutandis, to also apply to nil nationals. For completeness sake it should be mentioned that Swiss60 and Turkish61 nationals can also claim education-related rights under their Treaties with the eu; in particular, where it concerns economically active persons and their family members, their right to equal treatment in education matters is guaranteed. For non-economically active persons, such access is more limited in nature.62 58 59 60

61

62

Case E-26/13, Gunnarsson, oj [2015] C 68/3, para. 82. See N. Nic Shuibhne, The coherence of eu free movement law: Constitutional responsibility and the Court of Justice (Oxford University Press, 2013), p. 144ff. See Article 9(2) and Article 3(6) Annex i to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, oj [2002] L114/06. See for a general overview: S. Peers, ‘The ec-Switzerland Agreement on Free Movement of Persons: Overview and Analysis’, 2(2) European Journal of Migration and Law (2000) 127. See Article 9 and 10(1) Decision 1/80 of the Association Council of 19 September 1980 on the development of the association as well Case C-374/03, Gaye Gürol v Bezirksregierung Köln, ECLI:EU:C:2005:435 (concerning the rights to be derived from Article 9 of Decision 1/80 for children of Turkish workers) and Case C-171/01, Wählergruppe “Gemeinsam Zajedno/Birlikte Alternative und Grüne GewerkschafterInnen/ug”, and Bundesminister für Wirtschaft und Arbeit and Others, ECLI:EU:C:2003:260 (concerning the parallelism between the scope of Article 10(1) of Decision 1/80 and the scope of the non-discrimination clause in Article 45 tfeu). See further: A. Hoogenboom, ‘Turkish Nationals and the Right to Study in the European Union: A Progressive Interpretation’, 15(4) European Journal of Migration and Law (2013) 387. For Swiss nationals not economically active, no equal treatment right exists within the afmp relating either to access to education in the broad sense or as regards student

Introduction

15

Finally, the eu migration instruments also provide a range of rights that can relate to education. Directive 2003/10963 provides long-term resident thirdcountry nationals with a right to equal treatment with host Member State nationals in areas of ‘education and vocational, including student grants (…)’.64 The family member of a sponsor who him or herself has rights of equal treatment as regards education matters is also entitled to such equal treatment where admitted under Directive 2003/86.65 eu Blue Card holders66 and/or other persons admitted for work or other reasons67 also have some limited rights in this regard.68 Whereas the position of these special categories of third-country nationals will not be considered as part of the overall research question, it is nonetheless important to be aware of these dynamics as particular ‘solutions’ advocated may also have consequences for the position of these individuals, and may create legal issues of their own. For example, the eec-Turkey legal acquis comes with a standstill obligation,69 which may make legal innovations seeking to rebalance rights legally difficult to apply in situations involving Turkish nationals.70

63 64 65 66

67

68 69

70

grants and/or loans; see also Article 24(4) Annex i to the afmp. For Turkish nationals such rights are also not provided for, although this author has argued elsewhere that the Gravier ruling might be transposable to the Turkish context in A. Hoogenboom, ‘Turkish Nationals and the Right to Study in the European Union: A Progressive Interpretation’, 15(4) European Journal of Migration and Law (2013) 387. Council Directive 2003/109/EC of 25 November 2003 concerning the status of ­third-country nationals who are long-term residents, oj [2004] L 16/44. Article 11(1)(b). Some limits may apply however, see Article 11(2) and 11(4) Directive 2003/109. Article 14 of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, oj [2003] L 251/12. Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, oj [2009] L 155/17. Falling under Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, oj [2011] L 343/1. See Article 14 Directive 2009/50 and Article 12 Directive 2011/98 respectively. See Article 41 Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey, oj [1973] C 113/17 and Article 13 Decision No. 1/80 of the Association Council of 19 September 1980 on the development of the Association. Despite Article 59 Additional Protocol, which specifies that Turkish nationals shall not be treated more favourably than, in essence, Union citizens, within the framework of

16

CHAPTER 1

1.3.2 Scope ratione materiae: Mobility The second aspect to consider is the type of ‘situation’ that will be addressed. This monograph is not so much concerned with the (rights of the) student in the domestic educational setting, but rather with the student exercising his or free movement rights with a view to pursuing a course of education abroad. Several sub-points can be made in this regard. First, who exactly is ‘mobile’? Classically, of course, the Dutch student who applies to study medicine at Cambridge, after having resided in the Netherlands and obtained a secondary education diploma there, would qualify. But what about mere ‘passport discrepancies’,71 such as an Italian national having resided his or her whole life in Belgium? Or a Polish national residing in Poland, but having pursued his or her secondary education in Germany, after which he or she plans to study there? Many such ‘in between’ situations can be thought of. For statistical purposes,72 as well as for example in the context of the Student Loan Guarantee Facility set up in the context of the Erasmus programme,73 reference is often made to academic mobility (secondary education diploma in Member State A, tertiary degree in Member State B) and/or residence mobility (previously having resided in Member State A, moving to Member State B). For the purpose of the analysis here, however, a broader approach will be taken: it will include any situation involving a ‘passport discrepancy’ (eg. Swedish national in Denmark) as well as situations involving ‘the right to move freely’ more generally. The latter category includes in particular Union citizens invoking free movement rights against their own Member State with a view to challenging provisions circumscribing their possibility to study abroad or because they are disadvantaged as a result of having studied abroad.

71

72

73

that agreement. The Court has, in certain circumstances, held that Turkish nationals are ­differently situated than Union citizens, with the result that this limitation does not always apply, see e.g. Case C-451/11, Natthaya Dülger v Wetteraukreis, ECLI:EU:C:2012:504, para. 61–64. See D. Kochenov, ‘A real European Citizenship: a New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe’, 18(1) Columbia Journal of European Law (2011) 55, p. 71. See e.g. European Commission, Education and Training Monitor 2014, (dg eac, 2014), p. 69 as well as M. Kelo et al., eurodata: Student mobility in European Higher Education, (Lemmens Verlags- & Mediengesellschaft mbH, 2006). See e.g. Article 20 Regulation 1288/2013 of the European Parliament and of the Council of 11 December 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport and repealing Decisions No. 1719/2006/EC, No 1720/2006/EC and No 1298/2008/EC, oj [2013] L 347/50.

Introduction

17

This is justified, as the problems and issues that are connected with student mobility are broader than the definitions used for its statistical measurement: simply having a different nationality or simply having moved in the past can have consequences for access to education and/or student grants and student loans.74 The net should thus be cast wide. Secondly, the term ‘course’ requires some specification. The focus here will be on degree mobility: that is to say, the primary concern is with students seeking to enrol in a full course of study leading to a diploma issued by the host institution (e.g. a Bachelor of Arts or Master of Science). The legal framework in this context is set out more or less exclusively through the progressive case law of the Court of Justice interpreting the free movement provisions and implementing secondary legislation. In contrast, credit mobility within the eu largely takes place in the context of the Erasmus programme: here a student enrolled in institution A in Member State x follows a course of study in institution B in Member State Y, for which he obtains credits that count towards the degree to be issued by institution A.75 The reason for the attention given to degree mobility lies partly in its unmanaged character: where a student pursues a course of study is largely an individual migration decision. There is no institutionalised cooperation at the university level (such as with the Erasmus programme) or between the Member States. Moreover, since it concerns a longer, more persistent form of mobility, the financial and other burdens that (some) Member States in connection with such mobility must shoulder are more extensive. Finally, as seen above, it is also with regards to degree mobility that the recent major controversies have taken place, making this an area in which further study seems particularly worthwhile. Thirdly, the focus of this research will be on the mobility within the higher education sector of the European Union. Higher education here means a form of education corresponding to unesco’s International Standard of Classification of Education (isced) level 6 (‘bachelor or equivalent’) or 7 (‘master or 74

75

As I have tried to show in A. Hoogenboom, ‘Mind the Gap: Mobile Students and their Access to Student grants and Loans in the eu’, 22(1) Maastricht Journal of European and Comparative Law (2015) 96. See for the terms, ehea Ministerial Conference Bucharest 2012, Mobility for Better Learning, available at: http://media.ehea.info/file/2012_Bucharest/67/3/Bucharest _Communique_2012_610673.pdf last visited 07.04.2017. See for the Erasmus approach generally the website of the European Commission: http://ec.europa.eu/programmes/ erasmus-plus/opportunities-for-individuals/students/studying-abroad_en last visited 07.04.2017.

18

CHAPTER 1

equivalent’).76 The exclusion of vocational-level courses, and problems specific to that area, in the view of this author, is justified for reasons of space and manageability of the research project: as a result of the Bologna process, some standardisation has taken place among the eu Member States as regards the organisation of their respective higher education sectors. This makes these sectors somewhat more easily comparable. The vocational education landscape is much more diverse and would require much more extensive and separate discussion. Moreover, the mobility of students in the doctoral phase (‘PhD students’) will not be discussed at length either. Here too, other issues may play a role. Some Member States, for example, consider persons pursuing a doctorate to be employees, whereas others view them more in terms of a traditional student with or without a scholarship. Moreover, doctoral students are usually, in addition, not included in mainstream programmes for student financing, and possible migration flows are less likely to be significant in comparison to students crossing borders in search of a bachelor or master degree. That is not to say that these categories will never be considered. In particular, where it concerns the case law of the Court of Justice, many of the principles applicable to the mobility of students in the eu have also been developed in cases concerning other forms or levels of education and in particular vocational training. Prior to the Treaty of Maastricht, the competence of the European Economic Community was very much limited (as seen above) to vocational training. As such, with regard to inventarising, categorising and determining the principles of law applicable to the free movement of students of the eu, the net will be cast wider. In those cases, a ‘student case’ will be defined as cases in which at least one preliminary question or infringement claim deals with education-related rights that can be invoked on the basis of eu law (e.g. in particular involving the right to equal treatment on grounds of nationality and/or invocation of free movement rights). Finally, from an institutional perspective, this research project will focus on cross-border access to the publicly financed/state supported higher education sector rather than enrolment in forms of privately financed higher education. Apart from the uk (England), the Member States under investigation all operate a system of mass higher education organised and financed primarily by the state, which is where the tension between free movement and the pressure on

76

See for the levels and the accompanying standard: unesco Institute for Statistics, International Standard Classification of Education: isced 2011, (unesco Institute for Statistics, 2012), pp. 51–58, available at: http://www.uis.unesco.org/Education/Documents/isced -2011-en.pdf last visited 07.04.2017.

Introduction

19

public funds arises. As regards the uk (England), the focus will also be on the so-called publicly financed higher education institutes. However, some of the consequences of the progressive move towards cost-sharing in England (high tuition fees meaning that students pay a large part of their own education and ensures less reliance on state subsidies) will be outlined in Chapter 4.

chapter 2

Student Mobility: Myths, Identities and Realities 2.1

Historical Context

The student wandering across Europe in search of παιδεία (Bildung, ‘education’) evokes a familiar image with a long-standing tradition in European history. In fact, in the context of many programmes seeking to establish a ‘European Higher Education Area’1 or to promote student mobility and the internationalisation of higher education in some form, reference is often made to the situation prevailing at the birth of the universitas / studium generale in the Middle Ages. The phenomenon of the wandering student, however, is older still. Of note are, for example, the travels of Pythagoras seeking to continue his studies in Miletus (home of the Ionian school of thought and situated in present-day Turkey), where he attended the lectures of Thales and Anaximander around 549 bc. From an institutional point of view, the founding of Plato’s Academy and Aristotle’s Lyceum in Athens are significant. These institutes developed as centres for learning and attracted students from all over the Hellenic and later Roman world. In addition, the creation of the majestic Museum and Library of Alexandria, which stood out as a shining beacon for all those with a thirst for knowledge, is worth mentioning in this context.2 2.1.1 The Mobility Blueprint: The Middle Ages It is nevertheless the model of the studium generale developed in the (High) Middle Ages that attracts the most attention as a blueprint for current efforts in the internationalisation of education. Following the collapse of the Roman Empire and the plunging of Europe into a period of relative stagnation, often referred to as the Dark Ages, the Graeco-Roman intellectual and academic tradition was kept alive chiefly by Islamic philosophers and scientists. These later ‘rebequeathed’ the ‘classics’ upon medieval Europe in the course of the 1 Launched in the context of the Budapest-Vienna Ministerial Conference of 12 March 2010, see for the text of the declaration: http://www.ehea.info/pid34363/ministerial-declarationsand-communiques.html last visited 07.04.2017. 2 K. Gürüz, Higher Education and International Student Mobility in the Global Knowledge Economy, (State University of New York Press, 2011), pp. 149–150. While the focus here lies on European/eu student mobility, it should however be mentioned that this early student mobility was not an exclusively European phenomenon, see e.g. S. Nakayama, Academic and scientific traditions in China, Japan, and the West, trans. J. Dusenbery (Tokyo University Press, 1984). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344457_003

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intensifying contacts and conflicts (including in particular the Reconquista of Spain) between the Christian and Islamic world in the 11th to 12th century.3 The reception and spread of these ideas was facilitated with the coming into the world of a uniquely European institution:4 the university or studium generale growing from scholastic communities to become an autonomous, self-governing academic body. This new institution was sanctioned by higher authorities, both spiritual and temporal, and organised around five faculties: Law, Medicine, Theology, Art/Philosophy, and Music.5 The universities quickly grew to form a fundamental building block of the community, and their role and position were such that they were considered to form one of the three recognised powers (studium) of medieval European society, operating in, moulding and influencing the social sphere next to the temporal regnum and the eternal sacerdotium.6 The university system that grew progressively in Europe was characterised by a common, pan-European curriculum (including similar admission and graduation requirements), which was taught in one common language (Latin) and led to a degree that was universally recognised and allowed the bearer to teach throughout the continent.7 It was also characterised by a high degree of ‘academic pilgrimage’: the founding of these new learning institutions attracted students (and teachers) from all over Europe who travelled long distances to attend (or teach at) the studium of their choice. This movement was egged on by the fact that initially the choices for those seeking or providing higher education were limited.8 3 See F. Rosenthal, The Classical Heritage in Islam, Trans. E. and J. Marmorstein (University of California Press, 1975), pp. 12–14 and R. Rubenstein, Aristotle’s Children: How Christians, Muslims and Jews Rediscovered Ancient Wisdom and Illuminated the Middle Ages, (Mariner Books, 2004), p. 12ff. 4 Whereas parallels are sometimes drawn between the Islamic Madrasa and the medieval university, Makdisi has convincingly highlighted some crucial differences between the two institutions, ranging from differences from the position and role of (higher) education in society (in Europe it had a strong political and power dimension to it), in the organisation of education and the student-teacher relationship, and the status of the learning institutions (the European university functioned as a separate social and juridical entity which did not have its like in the Islamic world): G. Makdisi, ‘Madrasa and University in the Middle Ages’, 32 Studia Islamic (1970) 255. 5 N. Davies, Europe: A History, (HarperPerennial, 1999), p. 361. 6 W. Rüegg, Foreword, in H. de Ridder-Symoens (ed.), A History of the University in Europe. Volume i: Universities in the Middle Ages, (Cambridge University Press, 1992) p. xix–xx. 7 See P. Altbach and U. Teichler, ‘Internationalization and Echanges in a Globalized University’, 5(1) Journal of Studies in International Education (2001) 5, pp. 5–6. 8 H. de Ridder-Symoens, ‘Mobility’, in H. de Ridder-Symoens (ed.), A History of the University in Europe. Volume i: Universities in the Middle Ages, (Cambridge University Press, 1992), pp. 280–282.

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This migration was primarily spontaneous in nature, though a myriad of factors helped to develop this mobility, including the medieval man’s love of travel, the sporadic scholarships provided by church and state institutions to promising young minds enabling them to attend foreign institutions and the general construction of trade networks. In addition, the development of new and faster modes of transportation, better infrastructure and the rise and development of the middle class enabled more young students to look beyond their immediate region for their education. Finally, the legal practice of providing students with letters of passage and safeguard granted by both temporal rulers9 and papal authority10 granted students leave to traverse borders, protected them from undue prosecution by local authorities and exempted them from tolls and (certain) taxes.11 These elements all combined to promote nomadic academic study experience. 2.1.2 The Educational Grand Tour: Renaissance This mobility was further facilitated with the advent of the Renaissance and humanism, an environment wherein education became of central importance and was highly valued. In particular studies abroad (the so-called ‘Grand Tour’12) were regarded as the height of personal development as it allowed one to immerse oneself in studies taught by the most brilliant minds, to experience other cultures and to learn new (and old) languages.13 It is estimated that, at the turn of the 17th century, the number of international ­students on average made up some 10% of the student body of a university as a whole.14

9 10 11 12

13

14

E.g. the Authentica Habita promulgated by emperor Barberousse. E.g. The successive papal bulls promising protection to wandering students. See J. Verger, ‘La mobilité étudiante au Moyen Âge’, 50 Histoire de l’education (1991) 65, in particular pp. 66–69. A tour of educational institutes primarily situated in France, Italy, England and what was then the United Provinces. Erasmus is often cited as the embodiment of the wandering student-scholar of those days, having spent time in France, England, Italy, Germany, Belgium, and Switzerland. H. de Ridder-Symoens, ‘Mobility’, in H. de Ridder-Symoens (ed.), A History of the University in Europe. Volume ii: Universities in Early Modern Europe, (Cambridge University Press, 1996), pp. 416–419. G. Neave, ‘Anything goes: Or, how the accommodation of Europe’s universities to European integration integrates an inspiring number of contradictions’, 8(3) Tertiary Education and Management (2002) 181, p. 184.

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2.1.3 Countervailling Trends: Mobility Lost in the Age of Nationalism The situation was not to last and a series of countervailing trends would soon make itself felt. As early as the late 14th and 15th century, study and travel patterns already started to become somewhat regionalised. This development was in part due to the advent of new universities closer to home, but more importantly it was as a result of limitations imposed on the migration of students by rulers bent on consolidating their power within their respective territories: keeping these young scholars close ensured control over their ideological development as well as over their contribution to the local economy.15 This tendency­came to be especially enforced in the context of the religious wars of the Reformation and Counter-Reformation and the adoption of the principle of cuius regio, eius et religio, where the ideological uniformity was of paramount importance. This also lead to the development where state authorities increasingly started to require domestically issued diploma’s in order to enter public service or certain professions. The prevalence of conflicts on the European continent and the advent of the Enlightenment with its emphasis on the utility of education (whereby endeavours such as the Grand Tour were seen as somewhat frivolous, akin to tourism rather than serious study) further reduced interest in studying abroad.16 However, the main blow to international student mobility came with the emergence of the nation-state in the early 19th century. The Age of Nationalism heralded a European political system based on a complex balance of power idea premised on the mutual containment of the great powers of Europe. This combined with a hardening of borders between the nation-states and a preoccupation with the nurturing of national identity.17 In that context, education became nationalised and subordinated to the designs of the state and served to further the good of the limitedly defined nation. As such, this lead to the disintegration of the Middle Age-universitas ideal into national curricula, taught in the national language and leading to a nationally recognised degree.18 Whereas student mobility did not disappear completely during this time period, it was inevitable that this process should leave a marked impact on 15 16 17 18

Ibid, pp. 419–421. Ibid, pp. 421–439. For an overview of the trends identified, see p. 439ff. See G. Delanty, Inventing Europe: Idea, Identity, Reality, (Palgrave MacMillan, 1996), Ch. 5. W. Rüegg, ‘Themes’, in W. Rüegg (ed.), A History of the University in Europe. Volume iii: Universities in the Nineteenth and Early Twentieth Centuries, (Cambridge University Press, 2004), pp. 3–4ff. This process can most notably be seen in France where Napoleon founded­the imperial university and system of grand écoles with the main purpose of churning out future civil servants to take up positions in the bureaucracy.

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both the willingness and the ability of students to cross borders in search of education; the later developments and the subsequent wars that would shake Europe to its very core did nothing to improve the situation. Rebuilding Post-War: Student Mobility and the European Economic Community, the European Union and the Bologna Process19 The response seeking to rekindle student mobility after the restrictions imposed on it by the advent of the nation-state, was to take some time. Within the context of the European Economic Community a few (albeit ineffective) policy measures were developed, despite the fact that the original eec Treaty contained little by way of reference to a Community policy on education.20 The process was kicked off with the Council Decision of 1963 laying down general principles for implementing a common vocational training policy.21 This, in turn, was followed by several action programmes, both in the area of education and vocational training in the early 1970s22 as well as the establishment of European University Institute23 and the European Centre for the Development of Vocational Training (cedefop).24 The action programmes were, however, broadly formulated and any actual progress remained slow, partly due to a lack of political agreement about the role of the Community in this regard and partly because of the perceived legal limits (and thus the possibility of legally binding goals) of Community action in this area.25 Teichler notes that it is really only in the 90s of the 20th century that renewed emphasis was put on the need for the (re)internationalisation of higher

2.1.4

19

20 21 22

23 24 25

See for a more extensive historical overviews of post-war European education policy: P. Hilpold, Bildung in Europa, (Nomos, 1995) as well as C. Amann, The eu education policy in the post-Lisbon era: a comprehensive approach, (Peter Lang GmbH, 2014), Chapters 2 and 3. The only relevant provision was Article 128 eec, a relatively extensive clause providing the eec with the competence to establish a common vocational policy. Council Decision 63/266/EEC of 2 April 1963 laying down general principles for implementing a common vocational training policy, oj [1963] 1338. General guidelines for drawing up a Community action programme on vocational training, oj [1971] C 81/5 and Resolution of the Ministers of Education, meeting within the Council, of 6 June 1974 on cooperation in the field of education, oj [1974] C 98/2. Communiqué of the meeting of Heads of State or Government of the Member States at The Hague (1 and 2 December 1969), para. 11. Regulation (eec) No. 337/75 of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training, oj [1975] L 39/1. L. Pépin, ‘The History of eu Cooperation in the Field of Education and Training: how lifelong learning became a strategic objective’, 42(1) European Journal of Education (2007), p. 123.

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education in Europe in the broader context of the process of globalisation which increasingly erodes the significance of borders which had become so fixed at the heyday of the nation-state.26 Apart from the national/unilateral initiatives in this regard, in particular two ‘tracks’ of initiatives may be mentioned (although these are not necessarily separate in nature27): First, the so-called Bologna process, kick-started in 1999, has had a marked impact. The Bologna process is an intergovernmental process of voluntary cooperation,28 with some 48 European countries and the European Commission participating,29 the purpose of which is to attempt to recreate some of the conditions which characterised the higher education system of the Middle Ages:30 – Recognisable degrees: degrees should be ‘easily readable and comparable’ between participating countries. This was flanked by the adoption of the now familiar pan-European three-cycle system for higher education: the bachelor, master and doctoral. – (re)Europeanisation of the higher education area, in the form of co-operation in curriculum development and quality assurance. – Promotion of teacher and student mobility, including by using a European Credit Transfer and Accumulation System. As such, an important part of this initiative is dedicated towards increasing academic and in particular student mobility in the European Higher Education Area.31 The Mobility strategy 2020 for the European Higher Education 26

U. Teichler, ‘The changing debate on internationalisation of higher education’, 48 Higher Education (2004) 5, pp. 5–9. 27 See e.g. the reference to the Bologna process at http://ec.europa.eu/education/policy/ higher-education/bologna-process_en last visited 07.04.2017. 28 S. Garben, ‘The Bologna Process: From a European Law Perspective’, 16(2) European Law Journal (2010) 186, p. 190. 29 See: http://www.ehea.info/pid34250/members.html last visited 07.04.2017. 30 See Joint Declaration of the European Ministers of Education convened in Bologna on the 19th of June 1999 (the ‘Bologna Declaration’), the Communiqué of the Conference of European Ministers Responsible for Higher Education, Leuven and Louvain-la-Neuve 28–29 April (‘The Bologna Process 2020 – The European Higher Education Area in the new decade’) and the Budapest-Vienna Declaration on the European Higher Education Area of 12 March 2010, available at: http://www.ehea.info/pid34363/ministerial-declarations-andcommuniques.html last visited 07.04.2017. 31 The work programme since the Bologna Declaration has become quite extensive, see also: http://www.ehea.info/pid35146/work-programme-2015-2018.html last visited 07.04.2017.

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Area (‘Mobility for Better Learning’)32 confirms and develops this aim, urging member countries to adopt and implement internationalisation and mobility strategies, to remove obstacles to mobility (in particular by making available funding for the mobile student and to ensure recognition of degrees), to enhance the quality of such mobility periods, and finally to support the ‘social dimension’ (to ensure that mobility is a reality for currently underrepresented groups of students). The overall aim is to ensure that in 2020 at least 20% of those graduating in the European Higher Education Area should have had a study or training period abroad.33 Within the context of the European Economic Community, things started to pick up from the mid-1980s onwards, spurred on by the broad interpretation of the term ‘vocational training’ of the Court of Justice in Gravier:34 the end of the 1980s, beginning of the 1990s, saw the establishment of inter alia the Erasmus35 (credit student mobility), Comett36 (cooperation between universities and enterprises) and Tempus37 (cooperation between universities in the eu and with institutes situated in partner countries) programmes.38 The introduction of the Treaty of Maastricht saw a dual change: on the one hand, the Community was endowed with the competence to deal with education and vocational training in the broad sense, while on the other hand the Member States made 32

33

34 35 36

37 38

ehea Ministerial Conference, Bucharest 2012, Mobility strategy 2020 for the European Higher Education Area (ehea) (‘Mobility for Better Learning’), http://www.ehea.info/ pid34363/ministerial-declarations-and-communiques.html last visited 07.04.2017. Communiqué of the Conference of European Ministers Responsible for Higher Education, Leuven and Louvain-la-Neuve, 28–29 April 2009, ‘The Bologna Process 2020 – The European Higher Education Area in the new decade’, para. 18, last visited 07.04.2017. B. Blitz, ‘From Monnet to Delors: Educational Co-operation in the European Union’, 12(2) Contemporary European History (2003) 197, pp. 202–203. Council Decision 87/327/EEC adopting the European Community Action Scheme for the Mobility of University Students (Erasmus) oj [1987] L 166/20. Council Decision 86/365/EEC of 24 July 1986 adopting the programme on cooperation between universities and enterprises regarding training in the field of technology (Comett), oj [1986] L 222/17. Council Decision 90/233/EEC of 7 May 1990 establishing a trans-European mobility scheme for university studies (Tempus), oj [1990] L 131/21. In addition, it saw the establishment of such programmes as Lingua (to promote foreign language competency) and Petra (to support vocational training of young people), as well as a host of others, see Council Decision of 28 July 1989 establishing an action programme to promote foreign language competence in the European Community (Lingua) and Council Decision 87/569/EEC of 1 December 1987 concerning an action programme for the vocational training of young people and their preparation for adult and working life, oj [1987] L 346/31.

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sure to draw the boundaries of new action in this area tightly, by labelling the competence as supporting only and excluding any form of harmonisation.39 This saw the growth of additional programmes (such as Comenius, Leonardo da Vinci and Grundtvig40) as well as the eventual development of the overarching Socrates programme (1994–1999)41 as an umbrella under which the disparate eu based schemes were gathered. This, in turn, was replaced by the Socrates ii programme (2000–2006),42 which was followed up by the Lifelong Learning Programme (2007–2013).43 Current policy action as regards student mobility is specifically required: As seen, Article 165 tfeu specifies that the Union shall take action to support the mobility of students and teachers. The overall Education and Training Strategic Framework for 2020 (‘ET2020’) action plan underlines the importance of student mobility.44 In terms of concrete legal action, the main document for reference is the Erasmus+ Programme established by Regulation 1288/2013,45 which, in addition to maintaining the Erasmus exchange programme, for the first time also seeks to provide a financing option for degree mobility. Notwithstanding this general enthusiasm, however, it is not readily apparent why student mobility is a desirable phenomenon in the eu and wider European context. An important reason for the wandering students of the Middle 39

40

41 42

43

44 45

A state of affairs that is maintained today: see current Articles 6, 165 and 166 tfeu. See generally on the development of eu education policy: K. Odendahl, Europäische (Bildungs-) Union?, (Neuer Wissenschaftlicher Verlag, 2011). Addressing school education, vocational training and adult education respectively, see in the pre-Erasmus + incarnation Article 3 Decision 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning, oj [2006] L 327/45. Decision 819/95/EC of the European Parliament and of the Council of 14 March 1995 establishing the Community action programme ‘Socrates’, oj [1995] L 87/10. Decision No. 253/2000/EC of the European Parliament and of the Council of 24 January 2000 establishing the second phase of the Community action programme in the field of education ‘Socrates’, oj [2000] L 28/1. Decision No. 1720/2006/EC of the European Parliament and of the Council of 15 November 2006 establishing an action programme in the field of lifelong learning, oj [2006] L 327/45. Council conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (‘et 2020’), oj [2009] C 119/2. Regulation 1288/2013/EU of the European Parliament and of the Council of 11 December 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport and repealing Decisions No. 1719/2006/EC, No. 1720/2006/EC and No. 1298/2008/EC, oj [2013] L 347/50. See more generally: http://ec.europa.eu/education/ last visited 07.04.2017.

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Ages was the lack of (good) educational opportunities in the region, an issue that is much less pressing today with widespread, mass higher education institutes being available short distances away. The classic humanist view, whereby educational mobility and associated experiences were considered the epitome of personal development also holds somewhat less currency with policy makers today, in particular in the light of the pressing financial crisis and general post-Enlightenment emphasis on rationalism and utility in (European) politics.46 Overall, it rather raises the question whether student mobility is indeed a form of educational tourism, a luxury as it were, or an important necessity. The rest of this chapter is thus dedicated to identifying and reviewing some of the alleged ‘benefits’ of student mobility to determine whether, on balance, student mobility can be seen as desirable and thus to be promoted and supported actively. The starting point is the report of the High Level Expert Forum on Mobility,47 which states that the (increase in) student mobility in particular would promote: 1.

2.

The economy and economic growth of the European Union. Mobility is a key component in a competitive, highly educated and adaptable workforce capable of responding to the challenges and demands of today’s knowledge intensive society. A sense of European identity and citizenship among the younger European generation. In that context, mobility is said to build greater understanding and mutual trust between the peoples of the eu Member States and to foster cultural exchange.

These two aspects will now each be reviewed in turn. 2.2

Student Mobility and eu Economic Growth

It is not immediately obvious why the movement of, in essence, economically inactive individuals, such as students, should be beneficial to eu economic 46 47

See the compelling argument made by M. Oakeshott, Rationalism in politics and other essays, (Liberty Fund, 1991), p. 6ff. See: Report of the High Level Expert Forum on Mobility, June 2008, available at: http:// move-project.eu/fileadmin/move/downloads/links/mobilityreport_en.pdf. See also: V. Papatsiba, ‘Making Higher Education More European through Student Mobility? Revisiting eu Initiatives in the Context of the Bologna Process’, 42(1) Comparative Education (2006) 93, pp. 99–101.

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growth. The argument is often made without, however, explaining the underlying mechanisms and/or assumptions.48 This section is an attempt to make the argument more explicit through establishing a set of interlocking elements. First, it will be argued that there is a strong set of evidence suggesting that highly skilled individuals (the focus lies here on individuals having attained tertiary education attainment) are a major contributor to economic growth and development and in fact benefit society in manifold ways; this relates to the so-called ‘human capital’ concept in economics. Second, it will be argued that student mobility may serve an important function in this context, reinforcing knowledge and skills levels, promoting the efficient allocation of the highly skilled in the eu and generating a broad range of benefits all of itself for the eu economies. The Premise: Tertiary Higher Education, the Highly Skilled and Economic Growth The link between (higher) education and economic growth is a complex one. The classic argument follows the following lines.49 The productive output of an economy can be described in simple form by the function Q = f(K, L, M) with K standing for Capital, L for Labour, M for Material, s and f representing the technology constraint50 of an economy. These production factors used to be predominantly national in nature, in that economic performance was dependent on the capital stock etc. each country had at its disposal. However, as a result of the process of globalisation, these factors of production are increasingly no longer exclusive to one economy:

2.2.1

– The free(er) flow of capital allows for foreign investment (thus reducing the importance of the national capital stock of countries). – Increased ease in transfer of technology advance allows its spread around the world (meaning that more and more economies approach the technology frontier); and – Finally, in modern economies the importance of access to raw materials has declined due to a free(er) flow of goods between economies and the ­decrease in the relative value of raw materials versus value added through the production process. 48 49 50

As noted by C. van Mol, Intra-European Student Mobility in International Higher Education Circuits: Europe on the Move, (Palgrave Macmillan, 2014), p. 148. See the argument as summarised in N. Barr, The Welfare State as Piggy Bank: Information, Risk, Uncertainty and the Role of the State, (oup, 2001), Ch. 10. Here taken to refer to the limits imposed by the sum of knowledge and skills as regards to the production process.

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In view of these factors, how can we then explain differential economic performance between economies? The answer must lie in the last factor: the comparatively immobile labour.51 It is this labour, and in particular the quality of labour, that lies at the heart of the so-called endogenous growth theory, which emphasises economic growth as a function of a virtuous cycle of and interaction between human capital, innovation and knowledge/technology.52 To avoid confusion, some points should be clarified at the outset: Human capital refers to the stock of knowledge, skills and attributes (innate or acquired through formal and informal learning processes) that affect productivity as a means to produce economic value.53 This definition suggests two aspects of human capital:54 – The ‘human as production factor’, an ‘input’ (among others such as land and machinery) the productivity of which generates economic value (labour in the classic quantity sense). 51

52

53

54

In broad lines, this analysis also still holds true within the European Union. Whereas in the internal market (see Article 24 tfeu) the factors of production are theoretically free to move there where they are most valued, in practice obstacles remain in particular where it concerns the free movement of persons/workers: see M. Monti, A New Strategy for the Single Market: At the Service of Europe’s Economy and Society, Report to the President of the European Commission (2010), p. 56ff, available at: http://ec.europa .eu/internal_market/strategy/docs/monti_report_final_10_05_2010_en.pdf last visited 07.04.2017. See for the main proponents of this theory P. Romer, ‘Idea gaps and object gaps in economic development’, 32 Journal of Monetary Economics (1993) 543, R. Lucas, ‘On the mechanics of economic development’, 22 Journal of Monetary Economics (1988) 3, J. Mincer, Schooling, Experiences and Earnings, (Columbia University Press, 1974) and G. Becker, Human Capital: A Theoretical and Empirical Analysis, with Special Reference to Education, (The University of Chicago Press, 1993), p. 15ff. For some initial empirical evidence to support this, see R. Barro, ‘Economic Growth in a Cross Section of Countries’, 106(2) Quarterly Journal of Economics (1991) 407. K. Dae-Bong, ‘Human Capital and its measurement’, 3rd oecd World Forum on Statistics, Knowledge and Policy, Korea 27–30 October 2009, pp. 1–4 available at: http://www.oecd .org/site/progresskorea/44109779.pdf last visited 07.04.2017. See P. Romer, ‘Idea gaps and object gaps in economic development’, 32 Journal of Monetary Economics (1993) 543, pp. 543–545 and J. Mincer, ‘Human Capital and Economic Growth’, 3(3) Economics of Education Review (1984) 195, pp. 195–196. See also: J. Mincer, Human Capital and Economic Growth, nber Working Paper Series No. 803 (1981), p. 3ff. The distinction in ‘production factor’ and ‘creator’ is taken from K. Dae-Bong, ‘Human Capital and its measurement’, 3rd oecd World Forum on Statistics, Knowledge and Policy, Korea 27–30 October 2009, available at: http://www.oecd.org/site/ progresskorea/44109779.pdf last visited 07.04.2017.

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– The ‘human as creator’, the idea that investment in human capital through education and training can, in the narrow sense, increase the productivity of the human and in the broad sense provide a catalyst for new ideas leading to innovation and the development of technology (quality of labour – a recognition that labour is not homogeneous in nature). The essence of the endogenous growth theory revolves around the latter aspect, the ‘human as creator’ and is nicely summarised in a colloquial manner by Romer: Economic growth occurs whenever people take resources and rearrange them in ways that make them more valuable. A useful metaphor for production in an economy comes from the kitchen. To create valuable final products, we mix inexpensive ingredients together according to a recipe. The cooking one can do is limited by the supply of ingredients, and most cooking in the economy produces undesirable side effects. If economic growth could be achieved only by doing more and more of the same kind of cooking, we would eventually run out of raw materials and suffer from unacceptable levels of pollution and nuisance. Human history teaches us, however, that economic growth springs from better recipes, not just from more cooking. New recipes generally produce fewer unpleasant side effects and generate more economic value per unit of raw material.55 Overall, therefore, this theory suggests that educational attainment and skills training is highly beneficial, both when looking at the individual/organisational (company) level (the micro approach) and for the (national) economy as a whole (the macro approach). Focussing on evidence available as regards tertiary education (which concerns us here), we see that there is a broad body of research that shows that such (a level of) schooling at the individual level is strongly associated with higher labour productivity, which in turn translates to higher wages and lower risk of unemployment;56 this is largely confirmed 55

56

P. Romer, ‘Economic Growth’, in D. Henderson (ed.), The Concise Encyclopedia of Economics (Econlib, 2007), available at: http://www.econlib.org/library/Enc/EconomicGrowth .html last visited 07.04.2017. See for an overview: A. Chevalier et al., The Returns to Higher Education Teaching, (Centre for the Economics of Education, 2002), pp. 38–55, available at: http://cee.lse.ac.uk/pubs/ The_Returns_to_Higher_Education_Teaching.pdf last visited 07.04.2017, C. Harmon et al., The Returns to Education: Microeconomics, 17(2) Journal of Economic Surveys (2003) 115

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by a range of studies carried out at the industry level which show that skills acquisition by the workforce was a critical factor in increasing output per worker.57 Finally, studies examining aggregate human capital from a macro level find that it is a major factor in and driver of economic growth; for developed (oecd) countries in particular the (greater) attainment of tertiary education qualifications by the labour force functions as the main dynamic in this respect.58 Overall, therefore, the evidence thus strongly points to a solid link between human capital, increased productivity and economic growth: Taking the elements mentioned above together, a recent study carried out by the oecd finds that for the 17 oecd countries examined (including 10 eu Member States) about half the long-term growth in gdp is attributable to (income growth) of individuals having attained tertiary level education, notwithstanding the fact that only some 30% of the labour force has such a qualification.59 The oecd Education at a Glance 2012 eu Country Note goes even further: focussing on 21 eu countries, it finds that 2/3 of gdp growth is causally related to the efforts of individuals possessing tertiary education and that the demand for such highly

57

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and oecd Education At A Glance 2012 (oecd Publishing, 2012), pp. 118–161. See further, H. Strauss and C. de la Maissonneuve, The Wage Premium on Tertiary Education: New Estimates for 21 oecd Countries, oecd Economics Department Working Paper No. 589, G. Brunello and S. Comi, ‘Education and earnings growth: evidence from 11 European countries’, 23(1) Economics of Education Review (2004) 75 and J. Mincer, Education and Unemployment, nber Working Paper Series No. 3838 (1991). R. Wilson and G. Briscoe, The impact of human capital on economic growth: a review, in P. Descy and M. Tessaring (eds.), Impact of Education and Training, Third Report on vocational training research in Europe: Background report (cedefop Reference Series 54, 2004), pp. 35–36. Moreover, from an organisational point of view, there is a swathe of empirical evidence that indicates greater investment in research and development, successful innovation and overall better company performance under management possessing a tertiary degree, see pp. 33–35. See for the latter also: F. Scherer and K. Hue, ‘Top Managers’ Education and R&D Investment’, 21(6) Research Policy (1992) 507. B. Sianesi and J. van Reenen, The Returns to Education: Macroeconomics, 17(2) Journal of Economic Surveys (2003) 157, pp. 159, 181–184. See further R. Barro, ‘Human Capital and Growth’, 91(1) The American Economic Review (2001) 12, M. Chatterji, ‘Tertiary Education and Economic Growth’, 32(4) Regional Studies (1998) 349, N. Gemmell, ‘Evaluating the Impacts of Human Capital Accumulation on Economic Growth: Some New Evidence’, 58(1) Oxford Bulletin of Economics and Statistics (1996) 9. oecd, Education at a Glance 2012: oecd indicators, (oecd Publishing, 2012), p. 184ff.

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skilled labour (and thus the growing return on educational investment) in the eu economy shows no signs of abating.60 However, the association between human capital attainment and greater individual productivity is only one aspect and, as some would argue, not even the main contribution to (national) economic development. Instead, a range of positive externalities or spill-over effects are stressed. Foremost in this regard are two complementary and mutually reinforcing61 strands of literature. The first strand suggests that human capital accumulation in itself, that is to say the (mere) accumulation of education and training and the subsequent introduction of these highly skilled workers into the production process, increases the productivity of other workers and physical capital which in turn pushes economic growth.62 The second strand emphasises the importance of the level of human capital stock (state of the art of education/knowledge/ technology/skills) of an economy, which is in particular augmented where the workforce is composed of a relatively high proportion of individuals with tertiary qualifications,63 as determinative for (greater investment in) processes of continuous innovation and adoption of technology produced abroad (imitation).64 60

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oecd, Education at a Glance 2012: oecd Indicators Country Note – European Union, pp. 1–3, available at: http://www.oecd.org/education/EAG2012%20-%20Country%20 note%20-%20European%20Union.pdf last visited 07.04.2017. In particular Redding attempts to integrate the two and shows that multiple equilibria can exist: S. Redding, The low-skill, low-quality trap: strategic complementarities between human capital and R&D, 106 The Economic Journal (1996) 458, pp. 458–459, 468–469. See also: N. Stokey, ‘Human Capital, Product Quality and Growth’, 106(2) The Quarterly journal of Economics 587, p. 627. See R. Lucas, ‘On the mechanics of economic development’, 22 Journal of Monetary Economics (1988) 3, p. 39 and N. Stokey, ‘Human Capital, Product Quality and Growth’, 106(2) The Quarterly journal of Economics 587, pp. 587–588, 627. For an empirical application, see G. Mankiw et al., ‘A Contribution to the Empirics of Economic Growth’, 107(2) The Quarterly Journal of Economics (1992) 407. J. Vandenbussche et al., ‘Growth, Distance to Frontier and Composition of Human Capital’, 11(2) Journal of Economic Growth (2006) 97. See further, P. Aghion et al., The Causal Impact of Education on Economic Growth: Evidence from the United States, Brookings Papers on Economic Activity (2009), pp. 4, 33–39 available at: http://www.brookings.edu/ economics/bpea/~/media/Files/Programs/ES/BPEA/2009_spring_bpea_papers/2009 _spring_bpea_aghion_etal.pdf last visited 07.04.2017. See eg. P. Romer ‘Endogeneous Technological Change’, 98(5) Journal of Political Economy (1990) 871P. Aghion and P. Howitt, ‘A model of growth through creative destruction’, 60(2) Econometrica (1992) 323 and R. Nelson and E. Phelps, ‘Investment in Humans, Technological­Diffusion and Economic Growth’, 56 American Economic Review (1966)

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Finally, another set of externalities benefits in particular the public sector and the welfare state. The link between tertiary education attainment and higher wages translates into (future) increases in tax revenues which may counteract the on-going demographic decline in the eu, while at the same time public spending is reduced as tertiary education is associated with reduced risk of unemployment and better health thus leading to less expenditure on unemployment benefits and healthcare.65 Moreover, recent research suggests that (greater) levels of education attainment could be important predictors of (a lack of) criminal behaviour66 and greater engagement in the community and the democratic process.67 Concluding this section, it seems justified to hold that for the EU28, the quality of labour as expressed through the concept of human capital will play a crucial role in the future development of its economy and the maintenance

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69. For an empirical application, see J. Benhabib and M. Spiegel, ‘The role of human capital in economic development: Evidence from aggregate cross-country data’, 34 Journal of Monetary Economics (1994) 143, pp. 166–167. There is also a budding third strand in this regard which emphasises the quality of human capital (which looks primarily at quality of the education and training, that is to say the human capital attained per year of schooling rather than years of schooling sec), see R. Manuelli and A. Seshadri, Human Capital and the Wealth of Nations, 104(9) American Economic Review (2014) 2736. In this respect it is important to note that the improved health is linked to educational attainment even where income and occupational choice (which are also related to such attainment) are controlled for: D. Cutler and A. Lleras-Muney, Education and Health: Evaluating Theories and Evidence, nber Working Paper Series No. 12352 (2006), p. 13ff and D. Cutler and A. Lleras-Muney, Education and Health: Insights from International; Comparisons, nber Working Paper Series (2012) p. 24ff. As regards unemployment, see the literature cited above regarding the individual benefits, as well as: R. Blundell et al., ‘Human Capital Investment: the Returns from Education and Training to the Individual, the Firm and the Economy’, 20(1) Fiscal Studies (1999) 1, pp. 9–11 (and literature cited there) and E. Wasmer et al., The Macroeconomics of Education, Report prepared for the Seventh European Conference of the Fondazione Rodolfo Debenedetti (2005), pp. 13–14, available at: http://spire.sciences-po.fr/hdl:/2441/9064/resources/wasmer-frdb-report1final-bis.pdf last visited 07.04.2017. See S. Machin et al., ‘The Crime reducing effect of education’, 121(552) the Economic Journal (2011) 463 and R. Sabates, ‘Educational expansion, economic growth and antisocial behaviour: evidence from England’, 36(2) Educational Studies (2010) 165. However, to the knowledge of this author no studies have as of yet been conducted focussing solely on higher education, M. Egerton, ‘Higher education and civic engagement’, 53(4) British Journal of Sociology (2002) 603 and N. Emler and E. Frazer, ‘Politics: the education effect’, 25(1–2) Oxford Review of Education (1999) 251.

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and sustainability of the ‘European Social Model’68 characterised by a relatively large welfare state in the light of following trends: – First, the eu suffers greatly from demographic decline as a result of longer life expectancy combined with below-replacement rate fertility.69 It follows that, in the long-term, the composition of the population will increasingly tend towards a higher average age, leading to an increasingly smaller working population in the relative sense, supporting an ever heavier ‘top’ of elderly. This has dramatic effects on the dynamism of the eu economy and the financial sustainability of the welfare state.70 The appropriate response in such circumstances would be to increase the ‘q’ of labour to compensate for the declining ‘n’.71 – Second, the eu is lagging behind in the transformation to a knowledge economy, with lagging investment in tertiary education and substantial underinvestment in research and development opportunities. This will exacerbate the predicted skill shortage of the eu in a range of fields.72 The response should be dual in nature: greater investment in, combined with more efficient allocation of, knowledge, innovation and skills across the eu.73 The question, of course, remains what student mobility specifically can contribute in this regard; most of the evidence presented above deals with the role of tertiary education in the production and dissemination of knowledge and skills pushing economic growth through a variety of mechanisms within a

68

It is recognised that term is somewhat controversial and relatively ill-defined, see for an attempt to identify the different strands within the European Social Model: A. Sapir, ‘Globalization and the Reform of the European Social Models’, 44(2) Journal of Common Market Studies (2006) 369, pp. 375–381. 69 See http://ec.europa.eu/eurostat/statistics-explained/index.php/Population_structure _and_ageing last visited 07.04.2017. 70 G. Esping-Andersen, A Welfare State for the 21st Century: Ageing Societies, knowledge-based economies, and the sustainability of European Welfare States, Report to the Portuguese presidence of the Council (2000), pp. 1–4, available at: http://www.nnn.se/seminar/pdf/ report.pdf last visited 07.04.2017. 71 See N. Barr, The Welfare State as Piggy Bank: Information, Risk, Uncertainty and the Role of the State, (oup, 2001), Ch. 10. 72 oecd Economic Surveys: European Union, (oecd Publishing, 2012), p. 25. 73 Ibid, 11–27; see also A. Sapir et al., An Agenda for a Growing Europe: Making the eu Economic System Deliver, Report of an Independent High-Level Study Group established on the initiative of the President of the European Commisson, (Brussels, 2003), pp. 131–134.

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certain economy. As such, the next section will consider some qualitative arguments as to the specific role of student mobility in promoting these objectives. Student Mobility in Tertiary Education and the Contribution to the eu Economy It is submitted here that student mobility contributes to economic growth in two major ways. The first submission holds that the Court in Gravier was essentially right when it held that student mobility ‘is in particular likely to promote free movement of persons throughout the [Union], by enabling them to obtain a qualification in the Member State where they intend to work and by enabling them to complete their training and develop their particular talents in the Member State whose (…) training programmes include the special subject desired’.74 As such, free movement of students may be an important precursor to or identifier of highly skilled labour mobility in the eu; the factors driving the mobility of the production factor labour in an internal market, causing it to respond dynamically to shifts in demand for skills across the integrated eu markets may cast a longer shadow and affect, at an early, pre-employment stage, the choice of higher education institute, its location in the eu and the programme of study by students. In the classic economic sense, a (prospective) student, when deciding how much education to obtain, engages in a cost/benefit analysis. In terms of costs, he or she will consider having to pay tuition fees, ensuring the availability of subsistence resources and the opportunity costs of studying. In addition, less quantifiable costs are weighed, such as e.g. the mental effort expended. In terms of benefits, greater skills acquisition is incentivised through the wage premium attached to highly skilled vocations and the other factors mentioned above (e.g. lower risk of unemployment), the (possible) pleasure derived from studying and/or the increased quality of life that is linked with higher educational attainment.75 Within an increasingly integrated eu internal market, such cost-benefit analysis arguably no longer takes place solely with reference to the national education and labour market; rather a student may look for a new optimum, taking into account relative shortage of skills abroad (and thus e.g. higher wage premium, work opportunities and possibility for career development) or the availability of better quality or a better match (to the cognitive ability of the individual) of education abroad versus other costs such as regulatory barriers 2.2.2

74 75

Case 293/83, Gravier, ECLI:EU:C:1985:69, para. 24. W. McMahon, Higher Learning, Greater Good, (John Hopkins University Press, 2009), p. 42, 43, 51, 69ff.

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caused e.g. by non-recognition of degrees, financial costs of moving or emotional costs of leaving friends and family.76 Next, if it is true, as Barr submits,77 that the ‘higher education market’ satisfies the conditions for an efficient market78 (in which aggregate individual decision making should lead to a social optimum), it follows that the aggregate decision making of individual students engaging in the above-mentioned cost-benefit eu-wide (in terms of employment and education opportunities) analysis should lead to optimal and efficient skills allocation in the European Union. Student mobility thus would function as a channel of, or precursor to, subsequent highly skilled labour mobility. Such a distribution will, on the one hand, balance labour market outcomes by reducing current regional imbalances in terms of labour surplus and scarcity, as well as purchasing power, leading to a net welfare gain. On the other hand, it will ensure better skills matching between the student-turned-employee­and the employer. Together, these developments engender greater return on investment in educational attainment leading to a virtuous cycle of increased educational attainment and rising human capital levels.79 This is the allocation argument: by promoting student mobility, the (regional) allocation of highly skilled individuals in the eu is optimised leading to the efficient use of present skills and boosting, indirectly, incentives for greater skill attainment due to reduced ‘skill wastage’ (where the productivity/return to skill attainment is not as high as it could had the individual been mobile). Since, as seen above, there are strong positive externalities connected with human capital attainment (spill-over effects) there is thus a strong presumption in favour of greater eu/state intervention with a view to promoting student mobility. The second submission made here is that student mobility, rather than as a facilitator or chain in highly skilled migration, may generate certain benefits of itself. Mobility can contribute to competence and skill attainment of students as a result of better matching between students’ cognitive skills level and study 76

77 78 79

See also D. Guellec and M. Cervantes, ‘International Mobility of Highly Skilled Workers: From Statistical Analysis to Policy Formulation’ in oecd International Mobility of the Highly Skilled (oecd, 2001), pp. 79–83 who discuss the ‘pull and push’ factors affecting highly skilled migration flows. N. Barr, Economics of the Welfare State, (Oxford University Press, 2012), pp. 301–302, 305–307, 328–329. Subject to there being sufficient (quality) control and regulation in place, as well as government subsidies to the amount of the externalities referred to above. See for the general free movement / allocation argument: H. Bonin et al., Geographic Mobility in the European Union: Optimising its Social and Economic Benefits, iza Research Report No. 19 (2008), pp. 52–60.

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programmes (which may be only offered abroad). In addition, it encourages the development of a range of ‘soft’ skills (such as e.g. language and cultural awareness). Other advantages are that mobility generates greater (regulatory) competition among the Member States as well as among the eu higher education institutes seeking to attract students. This, in turn, could promote investment in higher education as well as a more efficient use of present resources leading to a greater quality of education for all. Finally, student mobility may engender classroom diversity beneficial to greater learning. As such, student mobility can also be said to contribute directly to greater human capital attainment in the eu: this argument can be termed the value-added or enrichment argument which confirms the central role that student mobility plays in the development of human capital in the eu. 2.2.3 Allocation: The Evidence There is relatively strong evidence for the links suggested above. First, student mobility is indeed found to be a relatively strong predictor of subsequent labour mobility: Teichler and Jahr, analysing data from a variety of sources, find that mobile students overall are three times more likely to be employed abroad than their non-mobile counterparts; the figure rises to seven times when only examining the short term (a period of four years after graduation).80 These findings are largely echoed in a study covering 16 eu Member States carried out by Rodrigues, who also finds that the longer the student is abroad during his or her studies, the greater the probability of subsequent (labour) mobility.81 Finally, both Parey and Waldinger and Oosterbeek and Webbink, examining a population of erasmus students and Dutch high potential scholarship recipients respectively, found a significant causal link between a study period abroad and subsequent employment abroad.82 Overall, Teichler suggests that, 80

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U. Teichler and V. Jahr, ‘Mobility During the Course of Study and After Graduation’, 36(4) European Journal of Education (2001) 443, 456–457. See for further development of this study: H. Schomburg and U. Teichler, Higher Education and Graduate Employment in Europe: Results from Graduate Surveys from Twelve Countries, (Springer, 2006), pp. 49–50, 77–78, 119–128. M. Rodrigues, Does Student Mobility During Higher Education Pay? Evidence from 16 European Countries, (Publications Office of the European Union, 2013), pp. 17–18, available at: http://crell.jrc.ec.europa.eu/?q=publications/does-student-mobility-during-higher -education-pay-evidence-16-european-countries last visited 07.04.2017. M. Parey and F. Waldinger, ‘Studying Abroad and the Effect on International Labour Market Mobility: Evidence from the Introduction of Erasmus’, 121(551) The Economic Journal (2010) 194, p. 217ff and H. Oosterbeek and D. Webbink, ‘Does Studying Abroad Induce a Brain Drain?’ 78(310) Economica (2011) 347, pp. 361–364. See also: V. Baláz et al.,

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at least in the short term, about one in six of all mobile eu students subsequently works abroad.83 Secondly, this relatively high ‘conversion rate’ from student-to-highlyskilled-labour suggests that the host country is provided with an important stimulus for economic growth and a range of other benefits: highly skilled migration raises human capital levels in the receiving state which, as noted above, brings with it a host of mutually reinforcing benefits pushing innovation and technological development and lowering public expenses.84 Moreover, since this human capital is imported, these benefits may be even greater, as it allows the receiving state to reap the fruits of the investment made by the sending state in the (earlier) education of the migrant.85 In addition, highly skilled migration is not associated with the displacement of domestic highly

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‘Temporary versus Permanent Youth Brain Drain: Economic Implications’, 42(4) International Migration (2004) 3, p. 14 (focussing on Slovakian nationals’ propensity to stay abroad), R. King and E. Ruiz-Gelices, ‘International Student Migration and the European “Year Abroad”: Effects on European Identity and Subsequent Migration Behaviour’, 9 International Journal of Population Geography (2003) 229, pp. 243–245 (comparing the experiences of uk students abroad with those staying put) and G. Di Pietro, ‘Does studying abroad cause international labor mobility? Evidence from Italy’, 117(3) Economics Letters (2012) 632 (Suggests in a study conducted among Italian graduates that studying abroad increases propensity to stay abroad by about 18 to 24%). For the Italian case, Recchi et al. confirm that previous mobility experiences increase the propensity to move: E. Recchi, C, Barone and G. Assirelli, Graduate Migration Out of Italy: Predictors and Pay-Offs, SciencesPo Observatoire Sociologique du changement 2016–03, p. 8. Consider further that similar results were found as regards research conducted on the early careers of a set of Norwegian students; the study found that 1 in 5 of the mobile students was employed abroad up to five years after graduating: J. Wiers-Jenssen, ‘Does Higher Education Attained Abroad Lead to International Jobs’, 12 Journal of Studies in International Education (2008) 101, pp. 121–125. Finally, the Flash Eurobarometer No. 319b Youth on the Move – Analytical Report, p. 7 also found that the higher level of education reached among the eu’s young minds, the greater the indicated propensity to work abroad. U. Teichler, ‘International Dimensions of Higher Education and Graduate Employment’, in J. Allen and R. van der Velden, Reflex: The Flexible Professional in the Knowledge Society, (Research Centre for Education and the Labour Market, 2007), p. 203. S. Drinkwater et al., The Economic Impact of Migration: A Survey, Flowenla Discussion Paper 8 (2003), pp. 17–19, 27ff. See further L. Gagliardi, ‘On the Engine of Innovation: The Role of Migration and Knowledge Spillovers’, in M. Gérard and S. Uebelmesser, The Mobility of Students and the Highly Skilled: Implications for Education Financing and Economic Policy, (mit Press, 2014). T. Straubhaar, International Mobility of the Highly Skilled: Brain Grain, Brain Drain or Brain Exchange, hwwa Discussion Paper 88 (2000), pp. 17–18.

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skilled labour or the depression of domestic wages; in fact, as a spill-over effect, a strong association exists between highly skilled migration and increased job opportunities for lower skilled labour in the host country.86 Finally it should be noted that the student-as-migrant presents certain characteristics that makes such migration flows attractive for the host state: the student is usually young and adaptable, making him an excellent candidate to learn the language and integrate well in the host society. During the study period, the student, by his mere presence, contributes to the local economy (e.g. by spending subsistence resources exported from the Member State of origin) and the degree eventually obtained is more easily recognised and valued by potential employers than purely foreign qualifications. As such, the picture for the receiving state looks quite rosy.87 2.2.3.1 Evidence Supporting that the Net Receiver Member State Benefits A recent attempt to quantify the suggested benefits of eu student mobility has been undertaken by the Dutch Central Planning Agency (cpb), which for that purpose engaged in a wide-ranging cost-benefit analysis of the phenomenon in the Netherlands.88 The Netherlands is a net receiver89 of students, with a yearly influx of foreign students amounting to about 4,6% of the total student population.90 Of these students, 73% come from an eea country, with which we are concerned with here, the rest from a country outside the eea. In calculating the costs and benefits of eea students, the cpb considered that, under eu law (and by extension, under the eea Agreement), the eu/eea student is eligible to equal treatment as regards access to higher education, meaning that 86

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89 90

See S. Kerr and W. Kerr, Economic Impacts of Immigration: A Survey, Harvard Business School Working Paper (2011), p. 15 and M. Kahanec and R. Králiková, Pulls of International Student Mobility, iza Discussion Paper No. 6233 (2011), pp. 2–4. See further: oecd, The Global Competition for Talent: Mobility of the Highly Skilled, (oecd, 2008), pp. 35–39. See also: L. Hawthorne, The Growing Global Demand for Students as Skilled Migrants, (Migration Policy Institute 2008), pp. 2–8, available at: http://www.migrationpolicy.org/ research/growing-global-demand-students-skilled-migrants-0 last visited 07.04.2017. cpb Notitie of 18 April 2012, The economische effecten van internationalisering in het hoger onderwijs, Report for the Ministry for Education, Culture and Science, available at: http:// www.rijksoverheid.nl/bestanden/documenten-en-publicaties/rapporten/2012/05/16/ de-economische-effecten-van-internationalisering-in-het-hoger-onderwijs/de -economische-effecten-van-internationalisering-in-het-hoger-onderwijs.pdf last visited 07.04.2017. Hereafter: cpb Notitie (2012). That is to say, more students from abroad come to study in the Netherlands than Dutch students in other Members States of the eu or beyond. Including here both eu and third-country national students, as well as students at universities as well as those in high professional education (‘hogescholen’).

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they cannot be required to pay more than the so-called wettelijk collegegeld set at €198491 per year. Moreover, the study also took into account that, under certain circumstances, these students are also eligible for student grants.92 Overall, based on the average duration of the studies of foreign students, the cpb came to the conclusion that a eu/eea student enrolled in higher professional education on average costs the public purse €23380 and the student enrolled at an university €13160.93 In terms of benefits the cpb took into account estimated indirect taxation gains (based on figures regarding consumption patterns of students: €5782 and €3304 per student respectively), taxation income from (part-time) work during the studies (€144 and €82 per student respectively), the expected direct taxation gains of students staying to work in the Netherlands after graduation (estimated at 19%:94 €147900 and €478200 respectively) and, finally, the outflow of Dutch students studying abroad (and associated reductions in cost weighed against the non-return of these students due to employment abroad).95 Weighing the benefits against these costs the cpb came to the conclusion that the net benefit for the Dutch public finances amounted to €10600 (higher professional education) and €81100 (university) per eu/eea student per year. Aggregated for the (net) amount of foreign students in the Netherlands this meant a net yearly benefit of €652 million.96 It should be noted that the cpb further held that the benefits would match the cost so long as the staying rate of the eu/eea student exceeded 2,5%.97 A similar study conducted on behalf of the daad largely confirms these findings. Examining the situation in Austria, Germany, the Netherlands, Poland, Switzerland, and Spain the authors find (taking into account the factors mentioned above) that a foreign student contributes substantially to the economy of the host Member State both during (in terms of stimulating local economies, employment), and after their studies.98 Indeed, employment after studies was estimated to generate between €22000 (Poland) and €74000 91 92 93 94

95 96 97 98

Article 9 Regeling financiën hoger onderwijs, Stcrt. 2008, 115. See Chapter 3 for the conditions. cpb Notitie (2012), p. 27. See G. Bijwaard, ‘Immigrant migration dynamics model for the Netherlands’, 23(4) Journal of Population Economics (2010) 1213, p. 1238. There are however some indications that the percentage may be higher in the short term, see cpb Notitie (2012), pp. 20–24. cpb Notitie (2012), pp. 29–31. Calculated from: cpb Notitie (2012), p. 32. cpb Notitie (2012), p. 34. I. Pfeiffer and M. Böhmer, Studentische Mobilität und ihre finanzielle Effekte auf das Gastland (Prognos, 2013), Chapter 5 available at: https://www.prognos.com/publikationen/alle -publikationen/339/show/5e36316f3d9822513b3b02d87459e0d9/ last visited 07.04.2017.

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(The Netherlands) per year per student for the economy (measured as ‘gross value added’).99 In addition, the authors note a significant contribution to public finances through direct and indirect taxation, as well as increased employment opportunities across the board.100 However, the daad study adds an important methodological qualification to the Dutch study: it is not just the staying rate that matters, but in particular also the duration of the stay in the host Member State that is relevant. Indeed, at a staying rate of 20%, it would take between seven (Austria) and ten years (Spain) of residence, depending on the rate of taxation, before the public purse is fully reimbursed for the initial study costs (of all ‘international study places’ in that particular cohort rather than simply the 20% that stayed on).101 As such, several important points should be highlighted here. The main variables for the alleged economic benefits are four-fold: 1. The size of the inand outflux of students; 2. the staying rate of the foreign students; 3. the (average) duration of the stay of the students; and 4. the make-up of the higher education and taxation system of the recipient Member State. As such, the gains are likely to be varied depending on the organisation of the educational system. Thus in England (uk), for example, the benefit can be expected to be greater, as in absolute terms the influx of foreign students is greater,102 the staying rate of eu students greater (27%103), and costs borne by the public purse during study time are more limited: students contribute to the financing of the higher education to a much greater extent due to the high tuition fees applied by English higher education institutes. Moreover, unlike the Netherlands, which at the time it was studied by the cpb, had a mixed grant/loan system, student support is fully based on a loan scheme. In contrast, for a country like

99 100 101 102

103

Ibid, p. 81. Outlier is Switzerland where the gross value added is estimated at some €124000. Ibid, p. 13, 87. As well as a range of other less quantifiable benefits, see generally Chapter 2 of that study. Ibid, p. 84. Outlier is again Switzerland, since the low rate of taxation leads to a requirement to reside there for 25 years before the cost is recouped. R. King and J. Ahrens, International student mobility literature review, Report to hefce, and co-funded by the British Council, uk National Agency for Erasmus (2010), p. 4, available at: http://www.hefce.ac.uk/pubs/rereports/year/2010/studmoblitreview/ last visited 07.04.2017. B. Suter and M. Jandl, Comparative Study on Policies towards Foreign Graduates – Study on the Admission and Retention Policies towards Foreign Students in Industrialised Countries, Report by the International Centre for Migration Policy Development for the Advisory Committee on Alien Affairs – the Netherlands (2006), p. 16.

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Sweden,104 which has tuition-free education for eu students and a relatively generous student support system, the benefits are likely to be lower, but still significantly positive. Overall, therefore, there are at least potentially significant economic rewards associated with student mobility for the receiving Member State. 2.2.3.2

No Evidence of a Significant Brain Drain for Net Sending Member States The other side of the coin must also be examined: how does the the Member State of origin or sending Member State fare? The above-described (net) outflow of young students-and-skilled labour to other Member States could invoke the spectre of ‘brain drain’, with economic malaise as the result. It is doubtful, however, whether this fear is justified: Docquier and Rapoport conclude in a recent review that highly skilled migration does not necessarily lead to human capital depletion but can rather foster human capital development and generate other positive externalities, in particular where countries engage in well-designed policies to promote return migration, (domestic) educational attainment, (domestic) investment in research and development and other initiatives seeking to capitalise on knowledge networks and educated diaspora.105 Within the context of the eu, specifically, there seems to be little to be worried about for the sending Member State. First, the great majority of students having studied abroad return to their country of origin,106 bringing with them new knowledge, skills and competences, some of which they may not have been able to obtain at their domestic education institutes. These returning students thus contribute to raising human capital and skill levels in their country of origin and function as a transmission medium for ideas and technology between the eu Member States.107 104 No statistics seem to be available on the staying rate of eu students in Sweden, see also: sou 2010:40, Cirkulär migration och utveckling – kartläggning av cirkulära rörelsemönster och discussion om hur migrationens utvecklingspotential kan främjas, p. 108ff. 105 F. Docquier and H. Rapoport, Globalization, Brain Drain and Development, iza Discussion Paper No. 5590 (2011). 106 U. Teichler, ‘International Dimensions of Higher Education and Graduate Employment’, in J. Allen and R. van der Velden, Reflex: The Flexible Professional in the Knowledge Society, (Research Centre for Education and the Labour Market, 2007), pp. 203–205. 107 See for the (potentially) beneficial impact of return migration in the ‘migration cycle’: L. Katseli et al., Effects of migration on sending countries: what do we know?, oecd Development Centre Working Paper No. 250 (2008), pp. 27–44. For further empirical support for the contribution of the transfer of technology and skills to economic growth in the country of origin, see K. Mayer and G. Peri, ’Brain Drain and Brain Return: Theory

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In fact, it may be argued that ‘outsourcing’ the training of high potential students to foreign centres of excellence may be a viable strategy, as it allows a degree of specialisation to take place (with the attendant efficiency gains) among the higher education institutes established in the different Member States rather than having each Member State heavily invest in providing all the relevant higher education itself.108 The degree of returning students in the eu on the longer term is even higher, and this is a category that will also bring back important professional experience and established business and other contacts.109 Secondly, the prospect of future student and labour mobility can also have positive effects on domestic human capital development in sending countries. As seen above, within an eu internal market characterised by free movement, the wages and opportunities that exist abroad can be held to figure significantly in an individual cost-benefit analysis in determining how much and where education should be obtained. It follows that the promise of higher wages and the like, due to a relative skill shortage abroad, combined with the need to be competitive in the potential host country stimulates educational attainment in sending countries. There is however a broad set of literature which supports the view that this can raise overall human capital levels in the sending country: the ex ante, prospect-stimulated ‘brain gain effect’ may be larger than the ‘brain drain effect’ due to the gap between those having obtained education with reference to the prospect of emigrating and the number of individuals actually emigrating in practice.110 A wide-ranging study confirmed this theory and Application to Easter-Western Europe’, 9(1) The b.e. Journal of Economic Analysis and Policy (2009) 1935 (focussing specifically on return migration to Eastern Europe of students having studied in eu 15), J. Kim, ‘Economic analysis of foreign education and students abroad’, 56(2) Journal of Development Economics (1998) 337, C. Dustmann et al., ‘Return migration, human capital accumulation and the brain drain’, 95(1) Journal of Development Economics (2011) 58. 108 K. Tremblay, ‘Academic Mobility and Immigration’, 9 Journal of Studies of International Education (2005) 196, pp. 223–225. 109 See further below for the value of these networks. Consider, however, that some acclimatisation issues could arise: R. Tung and M. Lazarova, ‘Brain drain versus brain gain: an exploratory study of ex-host country nationals in Central and East Europe’, 17(11) International Journal of Human Resource Mangement (2006) 1853. 110 See P. Leeson and Z. Gochenour, ‘The Economic Effects of International Labor Mobility’, in B. Powell (ed.), The Economics of Immigration: Market-Based Approaches, Social Science and Public Policy, (Oxford University Press, 2015) 21ff, A. Haupt et al., A Note on Brain Gain and Brain Drain: Permanent Migration and Educational Policy, CESifo Working Paper No. 3154 (2010), M. Beine at al., ‘Brain drain and economic growth: theory and evidence’, 64 Journal of Development Economics (2001) 275, O. Stark et al., ‘A brain gain with a brain

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to hold as long as emmigration rates do not exceed more than 20 to 30%.111 Whereas most of the literature focusses on the relationship between developed and developing countries in this regard, Beine et al. calculate that the effect also features significantly in developed economies with high growth performance and intermediate levels of migration.112 Farchy confirms the theory for the eu; examining the situation in the Czech Republic and Slovakia, she finds that that accession to the eu and the associated increased opportunity for migration is indeed significantly related to higher skill attainment in these acceding states.113 Thirdly, students-turned-highly-skilled migrant often retain important (family, business and social) links with their country of origin, which in particular manifest themselves through (large) remittance flows increasing consumptive capacity and reducing poverty, fostering educational attainment (and thus human capital formation) and promoting greater capital accumulation for investment purposes in the country of origin.114 Moreover, Docquier and Lodigiani emphasise that (highly skilled) diaspora networks foster important trade and investment links and act as a channel for the transfer of technology between the receiving and sending countries; these links generate a potential for economic growth in the sending country as their empirical study found strong network effects on human and physical capital accumulation in the country of origin.115 Finally, recent research also emphasises the importance of international scientific and knowledge networks for innovation processes in the sending country.116

111 112 113 114

115 116

drain’, 55(2) Economics Letters (1997) 227 and O. Stark et al., ‘Human Capital depletion, human capital formation, and migration: a blessing or a “curse”?’ 60(3) Economic Letters (1998) 363 and A. Mountford, ‘Can a brain drain be good for growth in the source economy’, 53(2) Journal of Development Economics (1997) 287. M. Beine et al., ‘A Panel Data Analysis of the Brain Gain’, 39(4) World Development (2011) 523, p. 530. M. Beine at al., ‘Brain drain and economic growth: theory and evidence’, 64 Journal of Development Economics (2001) 275, pp. 276–277, 287–288. E. Farchy, The Impact of eu Accession on Human Capital Formation, World Bank Policy Research Working Paper No. 4845 (2009), pp. 13–25. For their (potential) impact in this regard see the World Bank study Global Economic Prospects: Economic Implications of Remittances and Migration, (World Bank, 2006), in particular p. xii-xiv. F. Docquier and E. Lodigiani, ‘Skilled Migration and Business Networks’, 21(4) Open Economies Review (2010) 565, pp. 566–568, 586–587. See A. Agrawal et al., ‘Brain drain or brain bank? The impact of skilled emigration on poor-country innovation’, 69 Journal of Urban Economics (2011) 43.

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Finally, in a more general sense, the recent debate has moved beyond the simple brain gain/brain drain debate and towards a more multifaceted understanding of the phenomenon of skilled migrants crossing borders within the eu context: this is termed ‘brain exchange’ or ‘brain circulation’, in which student mobility plays an important role. This characterisation basically takes together the above-mentioned aspects and strands in the literature and emphasises that the human capital distribution in the eu and the diffusion of knowledge, skills, technology, and innovation flows should not be viewed as a set of unidirectional flows but rather as dynamic and responsive to constantly changing patterns of demand and opportunities as well as active national policies of Member States. At any point there may be a degree of outflow of skilled migration, compensation through (promoted) return migration, transfer and exchange of knowledge and resources (remittances) through diaspora networks, increased specialisation in the eu highly skilled labour market and greater cross-border collaboration.117 As such, this line of argumentation hearkens back to the idea that student mobility is a link in a chain of interactions within an internal market which pushes and pulls into motion human capital, ideas, technology etc. to move there where it is most valued leading to optimal allocation of these scarce resources among limitless demand. In this context, fostering student mobility should in the long run result in a win-win scenario for receiving, sending countries and the eu economy as a whole. 2.2.4 The ‘value added’ of Student Mobility The above section has mainly dealt with student mobility as a means-to-anend (as an aspect of highly skilled migration). This next section focusses on the valued added argument: to what extent does student mobility generate certain 117 J. Salt, International Movement of the Highly Skilled, oecd Occasional Paper No. 3 (1997), pp. 5, 23–25, L. Ackers, ‘Moving People and Knowledge: Scientific Mobility in the European Union’, 43(5) International Migration (2005) 99, pp. 100–101, 120ff. Recently, empirical research has begun to study the phenomenon more systematically and overall seems to confirm the significance of transnational network building and the fluid exchange of brains and knowledge, see. H. Jöns, ‘“Brain circulation” and transnational knowledge networks: studying long-term effects of academic mobility to Germany 1954–2000’, 9(3) Global Networks (2009) 315 (studying the effect of ‘knowledge networks’ built through German academic exchange and scholarship initiatives), M. Kahanec et al., Lessons from Migration after eu Enlargement, iza Discussion Paper No. 4230 (2009), pp. 29–38 (focussing on the migration flows between the EU15 and the new Member States), R. Daugeliene and R. Marcinkeviciene, ‘Brain Circulation: Theoretical Considerations’, 3 Inzinerine Ekonomika- Engineering Economics (2009) 49 and J-B Meyer, ‘Network Approach versus Brain Drain: Lessons from the Diaspora’, 39(5) International Migration (2001) 91.

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economic advantages for the eu economy more generally, above merely attaining education (in one Member State) and beyond merely functioning as a channel for highly skilled migration. The main argument in this respect is that mobile students may perform better than non-mobile students in an increasingly globalised labour market in terms of productivity, in part because there is a strong correlation between student mobility and propensity to engage in advanced study (increase in the quantity of education and thus human capital accumulation/skill levels),118 and in part because study abroad also adds an extra quality dimension to the educational attainment. The latter would result from having benefited from more than one educational and cultural tradition engendering the need for greater adaptability/flexibility as well as the development of a range of soft skills such as language skills, cultural sensitivity and a degree of independence which is linked to greater creativity and innovation processes.119 To an extent, the forgoing is underlined and reflected (albeit imperfectly) in the greater employability, higher wages and the greater likelihood of being assigned international projects of previously mobile students.120 Intuitively, this seems quite logical: in an 118 See O. Bracht et al. The Professional Value of erasmus Mobility, Final Report to the Commission – dg Education and Culture (2006), p. xiv available at: http://www.aca-secretariat .be/index.php?id=383 (Hereafter: Bracht et al., 2006), U. Teichler and K. Janson, ‘The Professional Value of Temporary Study in Another European Country: Employment and Work of Former erasmus Students’, 11 Journal of Studies in International Education (2007) 486, pp. 488–492 and R. King and E. Ruiz-Gelices, ‘International Student Migration and the European “Year Abroad”: Effects on European Identity and Subsequent Migration Behaviour’, 9 International Journal of Population Geography (2003) 229, p. 242. There is some research which, however, challenges causality in this regard: good students who are likely to engage in advanced study may simply also be more likely to engage in learning mobility, see D. Messer and S. Wolter, ‘Are student exchange programs worth it’, 54(5) Higher Education (2007) 647, pp. 659–661. 119 U. Brandenburg et al., The Erasmus Impact Study: Effects of mobility on the skills and employability of students and the internationalisation of higher education institutes (Publications Office of the European Union, 2014), p. 77ff, O. Bracht et al., (2006), Ch. 3–5 and 211ff and J. Ritzen and G. Marconi, ‘Internationalization in European Higher Education’, 3(2) International Journal of Innocation Science (2011) 83, pp. 89–90. See also: V. Papatsiba, ‘European Higher Education Policy and the Formation of Entrepreneurial Students as Future European Citizens’, 8(2) European Educational Research Journal (2009) 189, 190–192. 120 For erasmus these effects seem clear cut: U. Brandenburg et al., The Erasmus Impact Study: Effects of mobility on the skills and employability of students and the internationalisation of higher education institutes (Publications Office of the European Union, 2014), p. 113ff, H. Schomburg and U. Teichler, ‘Mobilité international des étudiants et débuts de vie active’, 103 Formation emploi (2008) 41, pp. 46–53 and V. Papatsiba, ‘Student Mobility

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increasingly globalised economy, employers are looking for workers comfortable in a globalised setting (speaking several languages, flexible and adaptable, broad cultural understanding etc.).121 Moreover, greater labour mobility also means that students are no longer only competing with their fellow countrymen for positions but instead with a much larger group: this incentivises them to develop themselves as ‘Eurostars’122 by accumulating foreign experience and education to distinguish themselves from the masses. Finally, the possibility to move abroad may lead to better ‘cognitive matching’ whereby individuals are better able to select a study programme fitting their skillset and talents,123 in Europe: An Academic, Cultural and Mental Journey? Some Conceptual Reflections and Empirical Findings’, in Malcolm Tight (ed.) International Perspectives on Higher Education Research (Emerald Group Publishing Limited, 2005), p. 29ff. Research as regards degree mobility is, by comparison, very limited, although Andersson finds significantly higher wages for students with foreign study expriences, see F. Andersson, Effekter av utlandsstudier: Är individer som studerat utomlands mer attraktiva på arbetsmarknaden, (Statistiska centralbyrån, 2011), pp. 39–40 available at: http://www​ .scb.se/Statistik/AM/AM9903/_dokument/Effekter-av-utlandsstudier.pdf last visited 07.04.2017. Moreover, a recent review covering the Nordic countries seems to indicate a largely positive effect of mobility on the issues mentioned: J. Wiers-Jenssen et al., ‘Introduction’, in M. Saarikallio-Torp and J. Wiers-Jenssen (eds.), Nordic students abroad: Student mobility patterns, student support systems and labour market outcomes (nifu Step, 2010), pp. 29–31. A more recent study focussed on degree mobility in the Nordic countries of the same author (in particular Norway, the Faroe Islands, Iceland and Finland) seemed to find less evidence of the differentiation between mobile and non-mobile students in the factors mentioned, except as regards the propensity to hold an internationalised job (significantly higher for previously mobile students; wages were not examined): J. WiersJenssen, ‘Degree Mobility From the Nordic Countries: Background and Employability’, 20(10) Journal of Studies in International Education (2012) 1, p. 15. On the other hand, Balaz and Williams find that there is substantial impact on income and job outcomes as a result of mobility of Slovakian students to the uk (and back; including degree mobility): V. Balaz and A. Williams, ‘“Been There, Done That”: International Student Migration and Human Capital Transfers from the uk to Slovakia’, 10 Population, Space and Place (2004) 217, p. 217, 229ff. 121 This is confirmed by the broad ranging survey conducted by Bracht et al. (2006), 89ff and the study conducted by U. Brandenburg et al., (2014), p. 133. 122 See A. Favell, ‘Eurostars and eurocities, free moving professionals and the promise of European integration’, 33 European Studies Newsletter (2004), pp. 1–2, available at: http:// councilforeuropeanstudies.org/files/Papers/Eurostars%20and%20Eurocities.pdf last visited 07.04.2017. 123 Evidence of such cherry picking is growing, see A. Findlay, ‘An Assessment of Supply and Demand-side Theorizations of International Student Mobility’, 49(2) International Migration (2010) 162.

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allowing them to specialise and capitalise on their comparative advantage in this regard when subsequently entering the job market.124 A second point is that student mobility may engender greater ‘cultural classroom diversity’. This may have both positive and negative effects and is somewhat under-researched in the European context. One strand of literature seems to suggest that such diversity can lead to mutually reinforcing ‘peer-learning’ and interaction bridging cultural divides which may boost educational quality (e.g. through culture-specific knowledge transfer),125 while on the other hand language and cultural barriers may undermine the educational process and so negatively affect knowledge transfer in a higher education context.126 However, at the moment, research is too sparse to conclude definitively whether greater diversity as a result of student mobility has an impact on educational quality; however, potentially at least the diversity of a European Higher Education Area could constitute a valuable educational resource. Finally, there is the argument that a mobile student population with rights of equal treatment as regards access to higher education institutes and (under certain circumstances) access to student grants (either from the home or host Member State) creates competitive pressures on universities who increasingly compete for the eu talent pool as a whole, leading to processes of internationalisation and quality improvement.127 It pushes universities to use their resources efficiently, incentivises them to improve teaching quality and promotes greater investment in research activities in order to improve its reputation and ranking with a view to attract high potentials.128 At the same 124 See further the surveys conducted by A. Findlay et al., ‘World class? An investigation of globalisation, difference and international student mobility’, 37 Transactions of the Institute of British Geographers (2011) 118, p. 125ff. 125 Commissie Arbeidsmarkt- en Onderwijsvraagstukken, Analyse ten behoeve van het advies ‘Make it in the Netherlands’, (Sociaal-Economische Raad, 2013), p. 24 and P. Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72(3) Harvard Educational Review (2002) 330, p. 358ff. See also: A. Astin, ‘Diversity and Multiculturalism on the Campus’, 25(2) Change: The Magazine of Higher Learning (1993) 44. 126 cpb Notitie (2012), pp. 15–16. 127 See S. Reichert and C. Tauch, Trends iv: European Universities Implementing Bologna, eua Publications (2005), pp. 28–33, A. Sursock and H. Smidt, Trends 2010: A decade of change in European Higher Education, eua Publications (2010), p. 72ff, and P. Altbach and U. Teichler, ‘Internationalization and Exchanges in a Globalized University’ 5(1) Journal of Studies in International Education (2001) 5. See also: N. Barr et al., Feasibility study on student lending, EAC/47/2009 Report to the European Commission: Directorate-General for Education and Culture (2011), p. 12. 128 L. Mechtenberg and R. Strausz, ‘The Bologna Process: how student mobility affects multicultural skills and educational quality’, 15 International Tax and Public Finance (2008)

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time, however, the issue is not clear cut. Since many eu countries provide for substantial public investment in higher education (next to the private investment by the students through paying tuition fees), a complex relationship exists between the degree of student mobility, the staying rate and subsequent labour mobility, government funding of higher education institutes and the policies pursued by and competition among higher institutes themselves. In particular, reductions in government funding may offset attempts of universities to compete on quality. Take as an example a state where the staying rate is low: because of difficulties in internalising the benefits of skills attainment by students to the benefit of the economy, it may prefer to free ride on the investments of other states (students sent abroad will return; foreign students will not stay).129 Where the staying rate is higher, however, the state may seek greater investment in domestic education both to prevent the domestic student from going abroad to seek (higher quality) education with the potential loss of his valuable asset to the foreign labour market, and in order to induce foreign students to consider it as a study-and-work destination.130 As seen above, the staying rate for students in the eu context is relatively significant, which should lead to relatively fierce university and government competition, having in principle beneficial effects on resource allocation by universities but with ambiguous effects of greater investment by governments in higher education: overinvestment may be the result.131 To the knowledge of this author, however, no empirical evidence currently exists that tests these propositions. 2.2.5 The Economic Benefits of Student Mobility Overall, based on the literature reviewed above, there is strong evidence that increased student mobility in the eu context has significant beneficial effects for economic growth and development in both the sending and receiving countries. In essence, student mobility is an important ‘channel’, improving­ the functioning of the internal market through optimising skills allocation, promoting the diffusion of knowledge supporting innovation and the 109, pp. 109–112, 123–125 and M. Delpierre and B. Verheyden, Student and Worker Mobility under University and Government Competition, CESifo Working Paper No. 3415 (2011), pp. 2–3. 129 M. Delpierre and B. Verheyden, Student and Worker Mobility under University and Government Competition, CESifo Working Paper No. 3415 (2011), pp. 3–5. 130 C. Gribble, ‘Policy options for managing international student migration: the sending country’s perspective’, 30(1) Journal of Higher Education Policy and Management (2008) 25, 28–31. 131 G. Demange and R. Fenger, Competition in the quality of higher education: the impact of students’ mobility, Paris School of Economics Working Paper No. 2010/27 (2010), pp. 20–23.

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development­of cross-border cooperation networks. Moreover, as seen above, student mobility also generates a range of benefits independently, in particular by teaching students a set of important competences in an internationalising economy, such as flexibility and adaptability, (the value of) multilingualism and other interpersonal and cross-cultural communication skills. There are thus significant gains that the eu could expect, if it were to (further) promote student mobility. 2.3

Student Mobility and Citizenship of the European Union

The High Level Expert Forum on Learning Mobility identified the promotion of a sense of eu citizenship among the eu’s youth as the second major objective that could be attained through greater mobility and exchange of young minds. The report itself, however, did not identify how learning mobility would actually contribute to this goal. The argument seems premised on two interacting mechanisms: 1. 2.

Student mobility brings young people from different Member States into contact in the context of an (advanced) educational setting, fostering a greater sense of togetherness and mutual trust between them. This intermingling of the peoples of the eu in turn promotes a sense of Europeanness. By bridging differences through interaction and mutual learning, the participants will grow to realise what is common to them: commitment to a shared set of values, ideas and way of life coupled with a sense of European identity with a deep historical intelligibility, of which the latest practical project seeking to create an ever closer Union is but the latest (but arguably most successful to date) instalment.132

Of course, the above mechanisms are difficult to ‘measure’ and to identify, making it difficult to determine the contribution of student mobility to the progressive construction of a (sense of) eu citizenship. Moreover, it is admitted­ 132 Admittedly, actually identifying these shared values or the content of eu citizenship is no mean feat and perhaps even impossible. In that sense, the official eu slogan ‘unity in diversity’ can perhaps be seen as the primordial European value: commitment to a ‘space’ in which that which claims to be ‘universal’ for Europe constantly interacts, is tested and challenged by the particular and the diversity of its peoples. See in this regard further: I. Berlin, ‘European unity and its Vicissitudes’, in H. Hardy (ed.), The Crooked Timber of Humanity: Chapters in the History of Ideas, (Pimlico, 2003), p. 195ff.

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here that if student mobility indeed were to bring about economic growth, few would question that as a worthwhile goal; in contrast, especially in these times of relative eu scepticism,133 the goal of promoting a sense of European identity is not quite as uncontroversial.134 Indeed, some commentators find that Union citizenship inevitably threatens established national identities,135 and among some members of the European public – and their representatives in government – European citizenship seems primarily associated with benefit tourism and accompanying pressure on the welfare state.136 Nonetheless, it is submitted here that the progressive development of a (sense of) European citizenship is crucial to the success of the European integration process. Within the European integration process, the quest for a European identity, a sense of membership (and ownership) of the shared project that is the European Union, lies at the heart of the question of legitimacy: the inquiry into the justification for the exercise of public authority by a normative system.137 One way of looking at legitimacy is provided by Scharpf’s distinction between input and output legitimacy. The former concept holds the exercise of authority to be legitimate insofar as it is a ‘manifestation of collective selfdetermination’: the degree of legitimacy is contingent on the degree of approximation of the choices made by those governing to the preferences of the members of a community as expressed through/in a democratic system.138 133 Which may be well exemplified by the ‘leave’ vote of the United Kingdom on the 23rd of June 2016. In contrast, recent Eurobarometer results seem to indicate that trust in the European Union is again increasing somewhat: Commission, Standard Eurobarometer 86: Autumn 2016, p. 14, available at: http://ec.europa.eu/COMMFrontOffice/publicopinion/ index.cfm/Survey/getSurveyDetail/instruments/STANDARD/surveyKy/2130 last visited 07.04.2017. 134 See the views cited in K. Rostek and G. Davies, ‘The impact of Union citizenship on national citizenship policies’, 10 European Integration Online Papers (2006) 1, pp. 7–8. 135 Y. Déloye, ‘Exploring the concept of European Citizenship: A socio-historical approach’, 14 Yearbook of European Studies (2000) 197, p. 211. 136 See e.g. bbc, ‘eu “benefit tourism” court ruling is common sense, says Cameron’, of 11 November 2014. See for a discussion H. Verschueren, ‘Preventing “Benefit Tourism” in the eu: A Narrow or Broad Interpretation of the Possibilities offered by the ecj in Dano?’ 52(2) Common Market Law Review (2015) 363, pp. 363–365. 137 M. Weber, The Theory of Social and Economic Organization, trans. A Henderson and T. Parsons, (oup, 1947), p. 325; H. Walker, G. Thomas and M. Zelditch, ‘Legitimation, Endorsement and Stability’, 64(3) Social Forces (1986) 620, p. 622. See further for the many different meanings of legitimacy: A. Føllesdal, ‘Survey Article: The Legitimacy Deficits of the European Union’, 14(4) The Journal of Political Philosophy (2006) 441, pp. 445–454. 138 F. Scharpf, Governing in Europe: Effective and Democratic?, (oup, 1999), pp. 6–8.

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This input legitimacy rests on the existence of a ‘thick identity’, that is to say a commonality of history, culture, values and language existing among a community of people, which forms the basis between them for the acceptance of the majority rule and the functioning of the democratic process.139 In contrast, output legitimacy revolves around the effective problem-solving capacity of the normative system: legitimacy is derived from the provision of (collective) solutions to problems that cannot be resolved by individual action.140 This conception of legitimacy merely rests on a ‘thin’ identity, that is to say, a perception of mutual benefits or common interests and the idea that through cooperation challenges can be resolved and objectives can be attained for the benefit of all.141 The concept of output legitimacy provided the eu with much of its early rationality: The original eec/ecsc/Euratom constellation was limited in scope and pursued integration in areas of mostly a technical nature, with a view to providing effective solutions to transnational problems that Member States felt unable to resolve on their own.142 However, as the scope of the European project increased and the socio-economic and political circumstances in which it operated changed, the lack of input legitimacy became increasingly problematic:143 commentators,144 courts145 and public opinion146 agree that output legitimacy is no longer sufficient to justify the exercise of public 139 140 141 142 143

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Ibid, pp. 6–10. Ibid, pp. 6–11. Ibid, pp. 6–12. N. Nugent, The Government and Politics of the European Union, (Palgrave Macmillan, 2010), pp. 3–26. A. Arnull, ‘The European Union’s Accountability and Legitimacy deficit’, in A. Arnull and D. Wincott, Accountability and Legitimacy in the European Union, (oup, 2002), pp. 5–7. See however: G. Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’, 4(1) European Law Journal (1998) 5. D. Grimm, ‘Does Europe Need a Constitution’, 1 (3) European Law Journal (1995) 282, F. Scharpf, Governing in Europe: Effective and Democratic?, (oup, 1999), 23ff and A. Føllesdal and S. Hix, Why There is a Democratic Deficit in the eu: A Response to Majone and Moravvcsik, 44(3) Journal of Common Market Studies (2006) 533. See in particular: BverfG BvE 2134/92, Brunner v The European Union Treaty (Maastricht Treaty), of 12.10.1993 and BverfG, BvE 2/08, Gauweiler v Treaty of Lisbon, of 30.06.2009. See the controversies surrounding the various ratification referanda, with the Danish negative referendum for the Treaty of Maastricht commonly being seen as the end of the ‘permissive consensus’ on which the eu previously operated: A. Føllesdal, ‘eu Legitimacy and Normative Political Theory’, in M. Cini and A. Bourne (eds.), Palgrave Advances in European Union Union Studies, (Palgrave, 2005), p. 152 ff.

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authority­by the eu in an ever-increasing range of policy areas.147 At the same time, however, the degree of commonality required for a genuine European ‘thick’ identity is still lacking, leading to a legitimacy gap commonly referred to as the ‘democratic deficit’ of the European Union. Within the context just set out, one may wonder what student mobility could contribute in this regard. The argument goes as follows. As Deutsch et al. posed in the 1950s that the (promotion of the) mobility of persons operates as a means to foster a sense of community, a ‘we-feeling’ characterised by mutual trust and consideration, which is a crucial factor conditioning the success of integration processes.148 Lijphart further built on this premise and argued that the establishment of cross-border interpersonal relations and contacts could support the European integration process and that, in particular, the mobility of students, more so than other categories of migrants, were likely to establish lasting and deeper connections in this regard (and more likely to attain influential positions),149 leading to greater mutual understanding, trust and the (beginnings) of the formation of a truly European identity. On an intuitive level, the idea that ‘contact between cultures’ fosters at the least a degree of understanding and reduces prejudice and reliance on stereotyping is powerfully convincing and indeed empirical evidence for the ‘intergroup contact theory’ is strong.150 Moreover, empirical research conducted in the eu context shows that the greater a person’s ‘transnational’ background (e.g. dual citizenship), interaction (e.g. study or work abroad) and human capital (e.g. being able to speak a foreign language), the less likely he or she is to be Eurosceptic.151 147 See e.g. the famous qualification of the eu as ‘Regulatory State’, focussing on and arguably limited to market regulatory policies: G. Majone, ‘The rise of the regulatory state in Europe’, 17(3) West European Politics (1994) 77 and G. Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’, 4(1) European Law Journal (1998) 5; See also Bundesverfassunggericht BvE 2/08, para. 208–252. 148 K. Deutsch et al., ‘Political Community and the North Atlantic Area’, in B. Nelsen and A. Stubb, The European Union: Readings on the Theory and Practice of European Integration, (Lynne Rienner Publishers, 2003), pp. 123–124, 129, 133–136. 149 A. Lijphart, ‘Tourist traffic and integration potential’, 2(3) Journal of Common Market Studies (1964) 251, p. 252ff. 150 See T. Pettigrew and L. Tropp, ‘A meta-analytic test of intergroup contract theory’, 90(5) Journal of Personality and Social Psychology (2006) 751, R. Brown and M. Hewstone, ‘An integrative theory of intergroup contact’, 37 Advances in Experimental Social Psychology (2005) 255, T. Pettigrew, ‘Intergroup contact theory’, 49 Annual Review of Psychology (1998) 65 and classically: G. Allport, The Nature of Prejudice, (Addison-Wesley, 1954). 151 T. Kuhn, ‘Individual transnationalism, globalisation and euroscepticism: An empirical test of Deutsch’ transactionalist theory’, 50(6) European Journal of Political Research (2011) 811, p. 814, 827.

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As such, if one of the goals of promoting student mobility is to foster a stronger European citizenship, which in turn strengthens support for the European Union,152 this would seem a worthwhile overall goal. In that context, the remaining part of this chapter will examine if indeed student mobility can be said to contribute to a stronger European citizenship. Classic analysis of the phenomenon of citizenship usually makes a tripartite distinction between the different dimensions thereof:153 – Citizenship as a legal status, defined by rights and duties. – Participation in a community’s (socio-)political institutions. – Membership (of the community) which functions as a source of identity formation. For the purpose of the argument below, it will first be seen to what extent student mobility contributes to the definition of European citizenship as a legal status. The following sections then deal with the extent that such mobility is capable of contributing to a sense membership of, and participation in, the European Union project. 2.3.1 The Legal Dimension to Union Citizenship Student mobility can be said to have a complex relationship with eu citizenship as a legal status. Whereas the Tindemans Report famously introduced the conception of a ‘citizen’s Europe’ and the notion of Union citizenship generally,154 it was primarily the case law of the Court of Justice that gave it legal effect. In a manner that reminds of the famous story of the Baron von Münchhausen, the mobility of young individuals seeking to cross the eu’s borderless expanse in search of education has contributed the legal elaboration of the concept of European citizenship: students are thus simultaneously a cause 152 Indeed, in an study based on a survey of some 1800 students from four large eu Member States (France, Germany, Italy, Spain), Mitchell finds a strong link between European identity and support for further eu economic integration: ‘The analysis confirms that, even as levels of support for further economic integration vary from country to country, for all four countries there is a positive, highly significant relationship between European identity and support for integrative economic policies to respond to the Eurozone crisis’. See K. Mitchell, ‘Does European Identification Increase Support for Further Economic Integration?’ 36(6) Journal of European Integration (2014) 601, p. 614. 153 J. Cohens, ‘Changing Paradigms of Citizenship and the Exclusiveness of the Demos’, 14(3) International Sociology (1999) 245, p. 248. 154 Bulletin of the European Communities Supplement 1/76, European Union: Report by Mr Leo Tindemans to the European Council, in particular pages 11, 26–28.

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for the legal development of the concept of European citizenship and one of the main beneficiaries thereof. In particular, student cases have been pivotal as a means to challenge the economic paradigm that dominated the European Economic Community: from the concept of citizens as (mere) production factors to one of citizens of a transnational polity. This has primarily come about through an expansive reading of the right of non-discrimination on grounds of nationality and the right ‘to move and reside’. These rights should in no way be considered insignificant: in the context of the United States, the Supreme Court has long held that these rights lie at the core of the federation.155 The expansive interpretation of the principle of non-discrimination has in a practical sense of course led to a right of equal access to the higher education institutes spread out across the eu. It has, however, a deeper intelligibility. The equal treatment principle operates as a prohibition on attaching (unjustified) consequences to the ‘otherness’ of nationals of other Member States: it is a legal presumption and requirement of the essential sameness of the peoples of the eu and a right not to be treated as a ‘stranger’ in any of its Member States. Its invocation in cases of student mobility (and other situations of noneconomically active individuals) can moreover be considered more significant than in the context of workers, for example. The latter is based on a direct quid pro quo: I work and pay taxes, thus I am entitled to or have earned access to the benefits provided by society, such as public services. The former is based on a more diffuse concept of reciprocity and a form of transnational solidarity and sense of unity among and between the peoples of the eu. The right of free movement ensures, again in practical terms, that students have a right to reside in the territory of another Member State in order to attend education there.156 In a more fundamental sense, the right of free movement is a necessary corollary to the principle of equal treatment and a precondition for the establishment of contact and mutual relations between the peoples of the eu and the respect for this right forms a guarantee for the absence of conflict and a greater realisation of a European sense of identity. Again, its invocation in the context of mobile students is more significant than in the context of the market participants: the presence of the latter is tolerated because they are economically useful, while the former have (at least initially) no such credentials­ 155 See e.g. Shapiro v Thompson, 394 u.s. 618 (1969) at 621: ‘This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement’. 156 See below.

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and must rely on their naked common heritage as Europeans to claim a right to reside (similar to the impossibility for a State to deport its own nationals, or divest itself of responsibility for such persons, notwithstanding the fact these individuals may not necessarily be ‘beneficial’ to society as such157). The Contribution of Mobile Students: Catalyst for the Legal Development of Union Citizenship Considering the origins of the free movement of persons, it was not surprising that the Court should initially deal primarily with the economic or market aspects thereof, in particular by determining the scope of the free movement provisions (who qualified as a worker, self-employed person) and their limits.158 The economically active Member State national has a directly effective right of free movement, which allows him to leave his Member State of origin and enter and reside in another Member State to engage in an economic activity there under the same conditions as the host Member State nationals.159 As is well known, the Court progressively started to interpret these provisions extensively.160 The classic explanation for this activist stance is premised on the idea of an emerging ‘market citizenship’ concept161 in which the Court supported the creation of a strong, ‘market right’ of free movement, with a view to striking down obstacles to the establishment of the common market.162 However, it is submitted here that the reality was more complex: the progressive development of eu citizenship was in fact the result of an intricate interplay between pioneering individuals bringing their claims before the Court of Justice, a sympathetic stance of the Court to an emerging idea of a transnational citizenship and the eventual response by the other eu institutions and Member States seeking to use the idea(l) of eu citizenship to legitimate eu action.

2.3.2

157 As reinforced by the Court’s ruling in Case 41/74, Yvonne van Duyn v Home Office, ECLI:EU:C:1974:133, para. 22. 158 A Member State can derogate from the free movement provisions for reasons of public policy, public security and public health, as well as the more specific derogation allowing a Member State to reserve certain public service employment to its own nationals. 159 Case C-363/89, Danielle Roux v Belgian State, ECLI:EU:C:1991:41, para. 9 and Case C-18/95, fc Terhoeve v Inspecteur van de Belastingdienst, ECLI:EU:C:1999:22, para. 37 ff. 160 C. Barnard, The Substantive Law of the eu: The Four Freedoms, (Oxford University Press, 2013), p. 229ff. 161 See M. Everson, ‘The Legacy of the Market Citizen’, in J. Shaw and G. More (eds), New Legal Dynamics of European Union, (Oxford University Press, 1995). 162 See e.g. Case 143/87, Christopher Stanton and sa belge d’assurances “L’Étoile 1905” v Institut national d’assurances sociales pour travailleurs indépendants (Inasti), ECLI:EU:C:1988:378, para. 13.

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The early stage in eu citizenship development was primarily a process of humanisation of free movement and equal treatment rights found in the Treaty,163 clearly noticeable in cases involving three types of individuals or situations: First, there is the Court’s benevolent attention towards the family members of economically active eu nationals. By interpreting the rights of residence and equal treatment rights164 of eu workers and their family members widely, strong rights ‘to remain’ were created. These included a ‘right of return’ of the eu national and his family member to his Member State of origin,165 essentially applying eu law to the question whether these family members were allowed to stay in the Member State of origin, rather than national migration law.166 In addition, the concept of social advantage was broadened to require equal treatment of the eu national and his family members with host Member State nationals in practically any situation, from requiring access to student loans for the children of the worker to railroad discounts for large families for the spouse of a deceased eu worker.167 Secondly, the Court created a set of flanking rights meant to enhance the position of the economically active. It introduced the concept of ‘work seekers’ who could derive a right of residence from the Treaty168 to look for work in the host Member State for a reasonable period of time.169 163 See also S. O’Leary, ‘Free movement of persons and services’, in P. Craig and G. de Búrca, Evolution of eu Law, (Oxford University Press, 2011), pp. 505–507. 164 Derived from the Treaty and/or Regulation (eec) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, oj [1968] L 257. The latter is now: Regulation (eu) 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, oj [2011] L 141/1. 165 See generally N. Nic Shuibhne ‘Derogating from the free movement of persons: When can eu citizens be deported?’ 8 Cambridge Yearbook of European Legal Studies (2006) 187, who further suggests that limitations on the rights of residence of economically active eu nationals and their family members are extremely limited in nature. 166 Case C-370/90, The Queen v Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department, ECLI:EU:C:1992:296, in particular para. 49. 167 See Case 207/78, Criminal proceedings against Gilbert Even and Office national des pensions pour travailleurs saleriés, ECLI:EU:C:1979:144, para. 22. See further Case C-3/90, M.J.E. Bernini v Minister van Onderwijs en Wetenschappen, ECLI:EU:C:1992:89, para. 24–26 and Case 32/75, Anita Christini v Société nationale des chemins de fer français, ECLI:EU:C:1975:120. 168 But without such a right being explicitly mentioned therein. 169 See eg. Case C-292/89, The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen, ECLI:EU:C:1991:80.

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In addition, it held that workers or self-employed individuals can, in certain circumstances, retain their status for the purposes of claiming social advantages where they are incapacitated as a result of work or are involuntarily unemployed.170 Thirdly, there are the student cases, which to an extent can be seen as the clearest example of an emerging concept of eu citizenship. In particular, the case of Gravier171 is illustrative. In this case the Court held that Miss Gravier could rely on the principle of equal treatment found in Article 18 tfeu to (successfully) challenge discriminatory Belgian legislation requiring state funded education establishments to apply higher tuition fees to students who, essentially, were not of Belgian nationality.172 Whereas the Court engaged in some creative reading of the facts and provisions to ‘prove’ a link between education and future employment abroad,173 overall the case lacked a distinct ‘market/economic-activity’ element: Gravier was simply interested in studying strip cartoon art at the Académie des Beaux Arts in Liège. Thus, overall, the right of equal treatment of a national of one of the Member States was read into what is now Article 18 tfeu, without that person being able to prove an economic nexus: as one commentator said, Gravier was an eu citizen avant la lettre.174 In the later case of Raulin, the Court built on this premise: it followed from the requirement of equal treatment as regards access to education that a student, as a corollary, had a right of entry and residence for the purposes of following education in the host state in order to ensure that such a right was in fact effective.175 These cases, and in particular the student cases, can be considered an avantgarde recognition of the essence of the legal status of eu citizenship (at least in the sense as argued above) before its actual introduction by the Treaty 170 See Case C-344/95, Commission v Belgium, ECLI:EU:C:1997:81, Case C-43/99, Ghislain Leclere, Alina Deaconescu and Caisse nationale des prestations familiales, ECLI:EU:C:2001:303 (in that case, however, the Court laid down some limitations to the claims for social advantages by ex workers) and Case 39/86, Sylvie Lair v Universität Hannover, ECLI:EU:C:1988:322 respectively. 171 Case 293/83, Françoise Gravier v City of Liège, ECLI:EU:C:1985:69. 172 Ibid, para. 14–15. 173 Ibid, para. 19–24. 174 See A-P van der Mei, ‘Gravier: Een Striptekenares en de Zegeningen van een Ongrondwetting Arrest’, in G. Essers et al., Vrij verkeer van personen in 60 arresten, (Kluwer, 2012), p. 42. 175 Case C-357/89, V.J.M. Raulin v Minister van Onderwijs en Wetenschappen, ECLI:EU:C:1992:87, para. 39.

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of Maastricht. The applicants in these cases were all appealing to a broader reading of the then Community law – namely a certain concept of what it meant be a national of one of the Member States on the territory of another Member State, beyond the narrow economic sense and within the context of an overarching European Community. As such, here in the case law, the emerging contours of a transnational citizenship idea(l) characterised by the twin rights of free movement and equal treatment are evident. It should further be pointed out that these cases came at a time during which the political institutions, and in particular the Council, were deadlocked over whether to adopt the (eventually withdrawn) proposal for a Council Directive on the right of residence for nationals of Member States.176 The parties were unable to reach an agreement on the appropriate legal basis and the conditions to be attached to the general, free standing of right of free movement that the Directive proposed.177 The second major development of the citizenship concept came in the 1990s, with in particular two notable events responding to, and to an extent recognising, the earlier developments (the ‘tick’ of the legislative eu institutions and the Member States to the ‘tock’ of Court’s jurisprudence): First, three Directives were adopted which provided free movement and residence rights to economically non-active individuals who had sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State and who were in possession of comprehensive sickness insurance: students, so-called ‘playboys’ (formally: persons of independent means) and retirees.178 Second, the Treaty of Maastricht introduced the concept of eu citizenship; a status attaching to all nationals of the Member States of the eu. Importantly, for the purposes here, this status also came with an attached right to ‘move and reside freely within the territories of the Member 176 oj [1979] C 207/14. 177 E. Guild et al., The eu Citizenship Directive: A Commentary, (Oxford University Press, 2014), p. 116. 178 Council Directive 90/364/EEC of 28 June 1990 on the right of residence and Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and selfemployed persons who have ceased their occupational activity. Student Directive 90/366 was annulled by the ecj in Case C-295/90, European Parliament v Council of the European Communities, ECLI:EU:C:1992:294: the European Parliament successfully challenged the legal basis on which it was adopted. Instead, it became Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students.

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States’ subject to the limitations set out in the Treaty and/or in secondary legislation.179 This in turn led to a welter of case law before the court petitioned by work seekers,180 economically inactive mothers181 and rehabilitating ex-salesmen,182 further eroding the market nexus both as regards the right of residence and the right to equal treatment. In the landmark case of Martinez Sala, the Court signalled the shift. It found that an economically inactive Spanish national lawfully residing in Germany (under international law) could rely on what is now Article 18 tfeu to challenge discriminatory conditions attached to the receipt of a child-raising allowance there.183 This was further developed in two student cases: Grzelczyk and Bidar.184 In the former case, a student, resident on the basis of Directive 93/96, sought a minimum subsistence allowance (minimex) from the Belgian state in order to complete his final study year (having supported himself the first three years of study). However, his application was denied on the sole ground that he did not possess the Belgian nationality. In interpreting the scope of what is now Article 18 tfeu, the Court rendered its now famous statement that Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.185 179 See current Article 20 and 21 tfeu. 180 Case C-138/02, Brian Francis Collins v Secretary of State for Work and Pensions, ECLI:EU: C:2004:172. 181 Case C-85/96, Mariá Martínez Sala v Freistaat Bayern, ECLI:EU:C:1998:217. 182 Case C-456/02, Michel Trojani v Centre public d’aide sociale de Bruxelles (cpa), ECLI:EU: C:2004:488. 183 Case C-85/96, Mariá Martínez Sala v Freistaat Bayern, ECLI:EU:C:1998:217, para. 47–64. Following Dano, however, it may be wondered whether this is still good law. In that case the Court ruled that ‘(…) a Union citizen can claim equal treatment with nationals of the host Member State only if his residence in the territory of the host Member State complies with the conditions of Directive 2004/38’, Case C-333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358, para. 69. Martínez Sala and Trojani were residents on the basis of international and national law respectively and would thus no longer seem to qualify for equal treatment under eu law. 184 Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458 and Case C-209/03, The Queen, on application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ECLI:EU:C:2005:169. 185 Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458, para. 31.

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The court then brought together two lines of the jurisprudence developed in Martínez Sala and Bickel and Franz respectively, holding: As the Court held (…) in Martínez Sala, (…) a citizen of the European Union, lawfully resident in the territory of a host Member State, can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law. Those situations include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the right to move and reside freely in another Member State, as conferred by [Article 21 tfeu] (see Case C-274/96 Bickel and Franz [1998] ecr I-7637, paragraphs 15 and 16).186 It followed that Grzelczyk could rely on the principle of non-discrimination to claim equal treatment as regards the minimex. The fact that this would violate the conditions under which he was resident in Belgium was put aside by the Court. The Court held that a Member State was under an obligation to show nationals of other Member States a certain degree of financial solidarity.187 In Bidar, the consequences of this judgment were drawn. In Lair the Court had held that maintenance aid for study purposes and the conditions under which they were provided fell outside the scope of what was then Article 7 eec.188 This was overturned with Bidar, in which the Court reasoned that, inter alia, as a result of the introduction of eu Citizenship, such grants now did fall within the scope of what is now Article 18 tfeu.189 It followed that Member States were obliged to grant equal treatment as regards student grants and loans, although the Court limited the financial solidarity Member States were obliged to show with the nationals of other Member States by allowing the eligibility for such grants to be conditional on the individual in question being able to show a certain degree of integration in the host State.190

186 Ibid, para. 32–33. 187 Ibid, para. 44. This conclusion was reached by reading the text of the Directive, which referred to the requirement of ‘sufficient resources’ with the preamble, which held that beneficiaries of the right of residence must not become an unreasonable’ burden on the public finances of the host Member State. 188 Case 39/86, Lair, ECLI:EU:C:1988:322, para. 15. 189 Case C-209/03, Bidar, ECLI:EU:C:2005:169, para. 31–42. 190 Ibid, para. 56.

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Moreover, Grzelczyk and Bidar, together with Baumbast191 also had significant consequences for the free movement rights attached to eu citizenship. In all three cases, the individuals in question did not fulfil the requirements under the three residence requirements for (continued) residence in the Member State in which they were residing. Grzelczyk and Bidar asked for forms of social assistance while they were supposed to have ‘sufficient resources not to become an unreasonable burden on the social assistance system’ and Baumbast lacked a sickness insurance with full coverage. The Court nevertheless buttressed their protection against expulsion by their host States. In Grzelczyk the Belgian state was admonished that a (temporary) call on social assistance could not lead to automatic expulsion.192 This was reinforced in Baumbast in which the Court held that the principle of proportionality constrained the freedom of Member States to expel Member State nationals for not strictly fulfilling one of the preconditions for the existence of a right of residence under the Directives.193 Finally, in Bidar the Court apparently did not even find it necessary to consider that Bidar might ‘eat away’ his residence right as a result of being given maintenance grants for study purposes, implying that eu citizens capable of demonstrating a certain degree of integration in the host Member State could not be expelled for lacking resources tout court (leaving only expulsion for public policy or security reasons). This position is now confirmed by Directive 2004/38, which provides a right of permanent residence to those eu citizens having lawfully resided in the host State, under the conditions of the Directive, for a period of five years.194 Finally, in more recent case law, students still feature prominently, in particular when it comes to refining the principles governing the operation of the principle of equal treatment. In Commission v the Netherlands (export of student grants), regarding the export of grants for studies abroad, the Court found the exclusive use of durational residence requirements as indicators of ‘a degree of integration’ in the host State problematic. The Court has since repeatedly emphasised the need to take a broad range of elements into account when Member States assess whether a Union citizen is sufficiently connected 191 Case C-413/99, Baumbast and R v Secretary of State for the Home Department, ECLI:EU: C:2002:493. 192 Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458, para. 43. 193 Case C-413/99, Baumbast, ECLI:EU:C:2002:493, para. 80–91. 194 See Article 16 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No 1612/68 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.

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with the Member State in question in order to be eligible for certain benefits.195 Moreover that case also seems to redefine the classic free movers (workers etc.) as a species of the genus eu citizen, making the latter a starting point of any analysis of the rights of an eu national in another Member State.196 Commission v Austria (student travel concessions) further advances the development of the rights of eu citizens. In that case, the Court held that the type of indicator (e.g. residence, language skills, or in casu: the status of the parents of a student) used to assess whether a person can be considered integrated in the host Member State depended on the nature and purpose of the benefit claimed. This suggests a dual test for eligibility for benefits provided by the host state. On the ‘demand side’, the degree of integration in the host Member State requires the Member State to have regard for the individual situation of the eu citizen, while, on the ‘supply side’, the indicators used to determine the degree of integration may not be set in abstracto and must have an obvious and reasonable connection to the nature and purpose of the benefit (in casu: fare reductions for public transport for students could not be made dependant on their parents receiving Austrian child support).197 2.3.3 Union Citizenship as a Legal Status and Its Wider Role Summing up, it is fair to say that one of the benefits of (the further promotion of) student mobility is the fact that students, as non-economically active mobile eu citizens, contribute to the legal and conceptual development of eu citizenship. These avant-gardists pulled themselves up by their citizenship status out of the mediocrity of being confined to studying at education institutes within national borders, before such status even existed. Subsequently, after the introduction of eu citizenship, students again acted as a catalyst for its further elaboration through a series of seminal cases. The persistence of the pioneers engendered the elaboration of a set of rights which in turn allowed ever greater numbers of students and other non-economically active persons to cross borders, to reside in another Member State and to benefit from the right to equal treatment with the nationals of the host State. Recent 195 See e.g. Joined Cases C-523/11 and C-585/11, Laurence Prinz v Region Hannover and Philipp Seeberger v Studentenwerk Heidelberg, ECLI:EU:C:2013:524, Case C-20/12, Giersch a.o. v État du Grand-Duché de Luxembourg, ECLI:EU:C:2013:411 and Case C-359/13, B. Martens v Minister van Onderwijs, Cultuur en Wetenschap, ECLI:EU:C:2015:118. 196 Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:34, para. 61–67, 86. 197 Case C-75/11, Commission v Austria (student travel concessions), ECLI:EU:C:2012:605, para. 62–64.

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case law confirms that this role is still not played out in this regard. While the focus in this section has been on the case law, the significance of eu citizens crossing borders goes beyond the realm of jurisprudence. As the importance of the eu citizenship phenomenon has grown, breaking free of the symbolism it was clothed in initially, it has increasingly caught the attention of the other eu institutions and the Member States as a means to bring the eu closer to the peoples of Europe and thereby to constitute a potentially legitimating force capable of supporting the European project and its further expansion. At the moment, however, developments seem to point in a different direction. The debate has shifted: Union citizenship is identified more and more with potential benefit tourism and a concomitant threat to the welfare state, rather than as a vehicle enabling nationals of a Member State to move freely and contribute positively to host societies. This has even crept into the case law of the Court. In Dano, the Court underlines no less than three times that Directive 2004/38 and the conditions it imposes on residence have as its stated objective ‘[to prevent] Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State’.198 The same sentiment is echoed in Alimanovic.199 Gone is the classic rhetoric which conceptualised Directive 2004/38 as a vehicle for integration of Union citizens.200 Nonetheless, it is hoped by this author that this reversal will be temporary. Mobile students may make a positive contribution in that regard, as the cases that end up before the Court of Justice often highlight the positive aspects of Union citizenship. Indeed, in the Martens case, the Court relies heavily on the ‘fundamental status’ of Union citizenship, as well as the objective to promote student mobility laid down in Article 165 tfeu, to reiterate its earlier case law condemning Member States for using unduly restrictive conditions to export of student grants and/or loans.201 198 Case C-333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358, para. 71, 74, 76. 199 Case C-67/14, Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others, ECLI:EU:C:2015:597, para. 50. 200 As remarked by D. Thym, ‘The elusive limits of solidarity: Residence rights of and social benefits for economically inactive Union citizens’, 52(1) Common Market Law Review (2015) 17, p. 25. 201 Case C-359/13, B. Martens v Minister van Onderwijs, Cultuur en Wetenschap, ECLI:EU: C:2015:118, para. 20–27. Skovgaard-Petersen seems particularly enthusiastic in holding that Martens ‘testifies to the continuous process of strengthening Union citizens’ free movement rights’: H. Skovgaard-Petersen, Market Citizenship and Union Citizenship: An Integrated Approach – The Martens Judgment, 42(3) Legal Issues of Economic Integration­

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The Political Dimension of Union Citizenship: Mobility of Students as a Means to Promote a Sense of European Identity and Community It is clear that the nexus between mobile students and the legal conception of Union citizenship is a strong one. However, this is not all, as will be seen below, as student mobility may also foster a sense of belonging: Indeed, there is evidence showing that mobility in educational settings may strengthen a sense of, and identification with, Union citizenship, the eu and its peoples more generally. It is to these matters that we now turn. This should not be taken to mean, however, that the citizenship components described above are to be seen in isolation from each other. As will be seen below, qualitative studies show that the ‘rights’ or ‘legal’ components of eu citizenship, the free movement and equal treatment aspects, may feature importantly in this identification process.202 The classic study with regard to the mobility of students and the promotion of a sense of European identity is King and Ruiz-Gelices’ study which examines the ‘year abroad’ effects based on a survey conducted on a set of uk students enrolled at Sussex University. As proxies for ‘European identity’, the students who had studied abroad were asked whether the studies abroad helped in developing an understanding of the host country, its history and its culture; whether they felt more attached to the host country; and whether they felt they belonged to a European cultural space. Of the respondents, 91%, 78% and 59% respectively agreed with these statements, therefore indicating that student mobility indeed seems to foster a degree of mutual understanding and belonging to a common European culture.203 A second interesting aspect of the study was a set of questions inquiring into the self-identification of these students as national citizens, or eu citizens, or a combination thereof. As compared to Sussex students who did not spend a year abroad, the year-abroad group was more likely to identify itself as European or at least partly European (an aggregation of categories of self-identification as: European only, European first, national second, and national first and European second). 79% of year-abroad students 2.3.4

(2015) 281, p. 281. Whereas the continuity referred to here may be questioned, overall one can agree that it is at least a step back in the right direction. 202 See further for links between belonging, participation and rights: R. Bellamy, ‘Evaluating Union citizenship: belonging, rights and participation within the eu’, 12(6) Citizenship Studies (2008) 597, p. 599ff. 203 R. King and E. Ruiz-Gelices, ‘International Student Migration and the European “Year Abroad”: Effects on European Identity and Subsequent Migration Behaviour’, 9 International Journal of Population Geography (2003) 229, pp. 239–241.

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identified him or herself as European in some manner versus 61% for the group that had not studied abroad.204 While the limitations of self-definition of identity should be recognised,205 it is nevertheless submitted here that such a selfconception does imply a degree of emotional attachment and association with an identity206 beyond simply a national one in the context of the nation-state. This suggests a more open mind to cooperation and interaction between the European peoples in the context of the European Union. Taken together, the findings of this 2003 study, that is to say the greater attachment to and understanding of other European cultures, a sense of membership of a European cultural space and increased self-identification as a European citizen, suggest that student mobility may indeed contribute to the finding of ‘common ground’ among the nationals of the Member States and the process of formation of a European ‘thick identity’.207 Some more recent studies seem to confirm the beneficial impact of student mobility in this regard. 2.3.4.1

Evidence Supporting a Link between Student Mobility and European Identity: Quantitative Studies Streitweiser surveyed a set of Erasmus students from a range of countries as to their primary ‘citizenship identification’: national, global, European or other. He finds that some 39% of Erasmus students identify themselves primarily by reference to European citizenship rather than the other options.208 While this is significantly less than the King and Ruiz-Gelices study, one should keep in mind the different set up: the question is not simply ‘do you feel European’, but

204 Ibid, pp. 241–242. 205 In particular, in casu, as the ‘strength’ and degree of such self-identification will vary between the respondents, and its practical effect is furthermore difficult to determine by reference to a simple question asked in a survey. 206 See in this regard also the Social Identity Theory strand: H. Taifel, Social Identity and Intergroup Relations, (Cambridge University Press, 2010), pp. 2–3. 207 Moreover, the formation of such an identity should not necessarily be seen as a challenge to national identities but rather perhaps a new form of identification and selfunderstanding in the European sphere, see G. Delanty, ‘Is there a European identity?’ 5(3–4) Global Dialogue (2003) 76, available at: http://sro.sussex.ac.uk/24733/ last visited 07.04.2017. 208 B. Streitweiser, Erasmus Mobility Students and Conceptions of National, Regional and Global Citizenship Identity, Buffet Center Working Paper No. 11/01 (2011), pp. 5–6. It is, however, important to note that there was a significant variation among the respondents in this regard, with e.g. Denmark scoring much higher on the national citizenship indicator than for example France. See further the V. Boomans et al., Erasmus Student Network Survey, Generation Mobility (esn, 2007), p. 26ff, which indicates that Erasmus students identify themselves quite strongly as both European and national.

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do you primarily feel European (in comparison to the other forms of belonging). As such, the study is indicative of the fact that identification with Union citizenship can be quite powerful indeed. An important limitation of the Streitweiser study is, however, the lack of a control group (non-movers), making it an interesting indication as to citizenship views among Erasmus students but not valuable to determine the existence of a causal link between student mobility and identity development. Oborune, examining a population of some 330 Erasmus exchange students and comparing them with both ‘future mobile’ (intending to be mobile) and non-mobile students, is better placed to examine that causality (the alleged ‘transformative experience’ of student mobility). She finds that mobile students are more likely to have a stronger sense of European identity than the other two groups (but she also stresses that this does not seem to replace the sense of national identity).209 In addition they demonstrate a greater degree of ‘community feeling’, loyalty towards the European Union, and trust in people from other European cultures.210 A such, this study supports the conclusion that indeed study abroad ‘adds’ to the degree of identification with a European identity and the European project (something that is contested, see below). Mitchell has conducted a wide-ranging survey among Erasmus students representing 25 eu Member States. She sought to empirically test three interlinked aspects which student mobility was supposed to promote: Firstly, she tested the extent to which Erasmus mobility promotes crosscultural interaction among students. On this aspect 78% of the students surveyed reported that their interaction was significantly multinational in nature when abroad, rather than predominantly focussed on interaction with host Member State nationals or nationals of the Member State of origin.211 Moreover, this interaction seemed to be causally related to the study abroad experience, as only 10% of the students surveyed reported interacting with other nationalities prior to studying abroad.212 209 K. Oborune, ‘Becoming more European after erasmus? The Impact of the erasmus Programme on Political and Cultural Identity’, 6(1) Epiphany (2013) 182, pp. 192–194. 210 Ibid, p. 193. 211 K. Mitchell, ‘Student Mobility and European Identity: Erasmus Study as a civic experience?’ 8(4) Journal of Contemporary European Research (2012) 490, pp. 497–498. This was moreover corroborated by the fact that these students were primarily conversing with their fellow students in other languages than their mother tongue or the host Member State. 212 Ibid.

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A second aspect examined was the alleged ‘transformative’ nature of Erasmus mobility, linked to European identity formation. In this regard, the results of the survey indicated that students felt more European (73%, with 24% responding to a ‘great extent’ and 49% ‘to some extent’), were more interested in the European Union project (66%; 23% greatly more interested and 43% to some extent) and more interested in other European peoples, cultures and countries as a result of their study abroad experience (90% +; with some 60% indicating increased interest to a great extent).213 The third aspect of relevance here was the impact of Erasmus mobility on more specific eu issues: the degree of self-identification of the students as European (rather than merely ‘feeling more European’), attachment to the eu and favourability towards the eu and the eu integration process. From the data, Mitchell concludes that both in absolute terms as well as relative to their non-mobile counterparts, Erasmus students are strongly supportive of the eu (70% + regarded the eu and the European integration process favourably) and significantly more likely to identify themselves as European: 44% indicated that they saw themselves as European ‘often’ as opposed to 33% of non-mobile student respondents; Erasmus students were also more likely to consider themselves only European or equally European and nationals of their Member State of origin than their non-mobile counterparts. The author admits, however, that the direction of causality in this regard is not fully clear. It may be (as will be seen below) that Erasmus students may simply already be more positively predisposed towards the eu and that the ‘value added’ of Erasmus in this regard is limited.214 2.3.4.2

Evidence Supporting a Link between Student Mobility and European Identity: Qualitative Studies Overall, the set of quantitative studies examined until now provide relatively strong support for the thesis that through the mechanisms of cross-cultural and intergroup interaction between students in the context of eu organised and promoted student mobility, European identity formation is both promoted and strengthened and mutual trust among the European peoples is enhanced. Two qualitative studies further support this sub-conclusion.

213 Ibid, pp. 498–500. 214 Ibid, pp. 500–502.

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The first study conducted in this regard focuses on the experiences of Romanian students having participated in Erasmus exchange. Based on a set of 17 in-depth interviews, Udrea finds evidence that the Erasmus exchange engendered a sense of European identity among the students interviewed by making the students aware of common cultural reference points (including a sense of shared history and a shared sense of cultural difference in comparison to students from outside Europe) and their experience with the more civic aspect of European citizenship (including freedom of travel and experience with such ‘European values’ such as respect and cultural tolerance were mentioned in particular). Overall, the respondents indicated greater awareness and attachment to their European identity, although their sense of national (Romanian) identity remained strongest.215 Van Mol combines quantitative surveys querying identification with ­Europe, European identity and eu citizenship of four categories of students (non-mobile students, potentially mobile students, certain future mobile students and students already having been mobile) from Austria, Belgium, Italy, Norway and Poland with in-depth interview sessions.216 He finds that, whereas there is evidence supporting that mobile students (all three groups) always score higher on the identification aspects mentioned, there were significant variations between the Member States in the strength of the differences between the groups in this regard.217 Combining the qualitative data with the quantitative findings, Van Mol finds that, for Belgium and Italy, student mobility primarily adds to identification with Europe and a European identity by lending a concrete dimension (in particular the ability to travel, to experience first-hand interaction with other cultures etc.) to these otherwise somewhat abstract concepts.218 Moreover, he also observes a process of socialisation taking place during the studies abroad wherein the Belgian and Italian students (unconsciously) increasingly seemed to define themselves in terms of similarities with other Europeans and in opposition to those students originating from outside geographical Europe.219 For Poland, the qualitative study revealed similar 215 G. Udrea, European Identity and Erasmus mobility. Insights from Romanian Students’ Experiences, 14(5) Romanian Journal of Communication and Public Relations (2012) 21, pp. 26–30. 216 C. van Mol, ‘Intra-European Student Mobility and European Identity: A Successful Marriage?’ 19(2) Population, Space and Place (2013) 209. 217 Ibid, pp. 213–214. 218 Ibid, pp. 214–215. 219 Ibid.

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dynamics­(concretisation and socialisation processes) for the mobile students, notwithstanding the fact that in the quantitative sense the distinction between mobile students and non-mobile students was limited in terms of indicators examined.220 Finally, for Austria, the author theorised that the quantitative results (little distinction between the mobile and non-mobile group in terms of the indicators, but all groups scored high) may have been due to the geographical location of the students surveyed. A strong sense of regional and/or European identity exists in the border region in which the University of Innsbrück (the university of the respondents is situated). Nevertheless, the dynamics of concretisation and socialisations also seemed present for this group albeit somewhat less pronounced.221 2.3.4.3 Countervailing Research: The Issue of Causality Some recent studies have challenged the more or less established truth that student mobility fosters and reinforces a European identity. Sigalas, conducting a longitudinal study, surveys a population of British students from nine British universities going abroad on Erasmus, as well as population of incoming ‘continental Europeans’ studying at the same nine British universities. As a control group he takes a set of non-mobile students from one British university. Whereas he finds, as above, evidence of socialisation of the Erasmus students with their fellow Europeans,222 he argues that the quality of this contact may be somewhat limited, as personal issues (termed ‘high quality’ interaction) were mostly discussed with co-nationals rather than other Europeans or host Member State nationals.223 Moreover, contrary to the studies above, he also finds very little transformative effect of Erasmus mobility on the selfidentification of students as European; in fact for the students coming to study at the British universities, European self-identification seem to have decreased slightly when compared to the situation prior to the move.224 Interestingly, 220 Ibid, p. 218. The author suggest that a possible explanation could lie in the fact that Poland only recently joined the European Union coupled with the fact that the eu presence in Poland is very significant as a result of the large amount of eu funding being poured into Poland for development purposes: combined, these factors seem to engender a positive outlook towards the eu among Polish students. 221 Ibid, 218–219. 222 Although, for the ‘incoming’ group of students, interaction with their British peers was not extensive. 223 E. Sigalas, ‘Cross-border mobility and European identity: The effectiveness of intergroup contact during the Erasmus year abroad’, 11 European Union Politics (2010) 241, pp. 252–255. 224 Ibid, pp. 255–256.

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however, outgoing British students increased somewhat in terms of their selfidentification as Europeans. Moreover, both the incoming and outgoing group of students had a significantly greater European identification than the nonmobile control group.225 Wilson, in particular, challenges the ‘value added’ of student mobility in this context. The argument runs that students who are likely to join Erasmus ­programmes are already favourably predisposed towards the eu and more open-minded towards other cultures than their non-mobile counterparts. Conducting a longitudinal study based on surveys, Wilson creates a mobile Erasmus group (majority of respondents being British, but with some incoming Swedish and French students also queried) and a non-mobile control group (again with the majority British students but with some Swedish and French respondents included). He finds the Erasmus group to be significantly better predisposed towards the eu on four indicators (greater self-identification with European identity, more likely to vote for pro-European parties, greater attachment to the eu and in favour of more European integration) but does not find a causal link for the impact of Erasmus mobility in this regard: that is to say that within the Erasmus group no significant increase (or decrease) in the indicators was found after the period spent abroad.226 Overall the findings in these two articles have lead Kuhn to hold that such educational exchange programmes are ‘preaching to the converted’; instead she finds greater significance for such educational exchange programmes if they were to be targeted at individuals with lower educational backgrounds who have only a very limited sense of European identity.227 2.3.4.4 Reconciling Diparate Findings on the Impact of Mobility How can these ‘countervailing’ studies be reconciled with the studies examined above? It is true that a few of the studies cited do not always follow a research design that allows them to distinguish the causal impact of a study period abroad, such as the survey of Streitweiser referred to above. Moreover, in-depth interviews of, for example, 17 Romanian students cannot be considered a significant sample to draw major conclusions as to the

225 Ibid, p. 256. 226 I. Wilson, ‘What Should We Expect of “Erasmus Generations”?’ 49(5) Journal of Common Market Studies 1113, pp. 1130–1137. 227 T. Kuhn, ‘Why Education Exchange Programmes Miss Their Mark: Cross-Border Mobility, Education and European Identity’, 50(6) Journal of Common Market Studies (2012), pp. 1006–1007.

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identity-formation­process. On the other hand, a few issues can be raised with these ‘countervailing’ studies as well. First, they concern mainly populations of British students or incoming students studying in the uk. As Mitchell points out, the uk is a significant outlier where it comes to attitudes about the eu, European integration and identification with a European identity;228 therefore studying in a Eurosceptic country such as the uk is not very likely to be conducive to the formation of positive views of the eu. The outlier position is somewhat corroborated by the findings of Sigalas who, as seen above, finds that (mobile) outgoing British students show an increase in self-identification with European identity, whereas incoming students seem to decrease (slightly) in their European attitude. ­Wilson does not distinguish between the outcomes of the British (outgoing) and Swedish/ French (incoming) groups. Secondly, the sample of students, especially compared to the other studies conducted, is relatively small, making statements seeking to generalise the findings of these studies of questionable value.229 Thirdly, it is not clear what data Sigalas is using in his study; Wilson refers to the fact that Sigalas’ results in his PhD thesis may have been skewed as result of the fact that the ‘pre-test’ questions had only been sent to the students after they had already spent some time abroad; if the same data (Sigalas’ data for the more recent paper was collected in the academic year 2003/2004) was used for this more recent research, one may again doubt its validity as important identity formation processes may already have taken place during the first months of the stay (or even in the months leading up to it).230 Thirdly, one may perhaps raise another issue of cause and effect. It may be so that the existence of programmes promoting student mobility, as well as the case law of the Court of Justice facilitating such mobility, cast a longer shadow than accounted for in these studies. As seen, both Wilson and Sigalas argue that students may already be predisposed to a positive outlook as regards European identity and the support of the integration process prior to their Erasmus experience. Being saturated, these students then do not ‘improve’ in their outlook as a result of the experience abroad and no ‘impact’ of a study period is measurable. However, neither author offers an explanation of where this predisposition comes from. 228 K. Mitchell, ‘Student Mobility and European Identity: Erasmus Study as a civic experience?’ 8(4) Journal of Contemporary European Research (2012) 490, p. 496. 229 Ibid. 230 I. Wilson, ‘What Should We Expect of “Erasmus Generations”?’ 49(5) Journal of Common Market Studies 1113, pp. 1123–1124.

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An aspect of this favourable predisposition may, however, lie in the fact that the opportunities for study abroad offered, through their mere existence, foster a sense of European identity among students. Participation in Erasmus exchange may thus merely be the fulfilment of a desire already established at an earlier stage, but the desire itself may in turn have been generated by the opportunities offered (as a practical example of ‘What Europe does for me’). Indeed, there is significant evidence indicating that the existence of institutional frameworks and policies perceived as effective can generate positive identity formation processes.231 As such, student mobility opportunities may foster a European identity even before the fact of participation. Finally, a recent study by Mitchell has sought to remedy the perceived shortcomings in Sigalas’ and Wilson’s studies with a more sophisticated longitudinal study, with a much larger group of respondents (1500 in total) spread over six European countries. She finds that there is no significant difference, prior to studying abroad, between the mobile and non-mobile students in terms of either identifying as European or in their identification with Europe.232 However, after the exchange, the mobile group identified significantly more with both dimensions. Of the group that prior to the exchange had responded as ‘never identifying’ as European, three quarters now had changed their view and reported that they did identify themselves as European at least sometimes.233 The study moreover confirms that British students are outliers, in that the effects of mobility on their identification on either dimension were much smaller.234 Overall, the author suggests, therefore, that the countervailing studies referred to above suffer from extrapolating outlier results, making their conclusions as regards the value of the Erasmus programme tenuous.235 231 M. Hooghe and S. Verhaegen, ‘The effect of political trust and trust in European citizens on European identity’, European Political Science Review, advance view available at: http://dx.doi.org/10.1017/S1755773915000314 last visited 07.04.2017. In addition, emigration environment and associated imaginations and expectations feature strongly in decisions on migration: C. Timmerman et al., ‘Europe seen from the outside: Conceptual and Theoretical Framework’, in H. Harbers (ed.), Strangeness and Familiarity: Global Unity and Diversity in Human Rights and Democracy, (Forum, 2011), pp. 151–161. 232 K. Mitchell, ‘Rethinking the “Erasmus Effect” on European Identity’, 53(2) Journal of Common Market Studies (2015) 330, p. 338. 233 Ibid, p. 339. 234 Ibid, pp. 340–341. This is also confirmed in more qualitative studies carried out by Van Mol, see C. van Mol, Intra-European Student Mobility in International Higher Education Circuits: Europe on the Move, (Palgrave Macmillan, 2014), pp. 114–117. 235 K. Mitchell, ‘Rethinking the “Erasmus Effect” on European Identity’, 53(2) Journal of Common Market Studies (2015) 330, p. 345.

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2.3.5 On balance: Student Mobility as a Transformative Experience Overall, the impact of student mobility on the fostering of a sense of membership of a community, as an aspect of eu citizenship, is not wholly clear cut. Whereas there is strong evidence, both quantitative and qualitative, to be found to support this thesis, recent research has raised some questions as to the causal relationship between mobility and the improved sense of European identity. It is however submitted here that these countervailing studies suffer from some important flaws which lead to the findings therein being somewhat non-generalisable for the impact of eu student mobility on European identity formation. Follow-up studies also seem to support that conclusion. A further point to highlight is the fact that most of the studies identified conduct their studies on a population of Erasmus students. To what extent are these results also relevant for what we are concerned with here: degree mobility? A study conducted by Rother and Nebe suggests, in this respect, that movement across borders in general promotes a stronger European identity and that these effects increase the longer the period spent abroad.236 From this follows that ince degree movers spend a longer period abroad the ‘Erasmus effect’ should at the very least be the same but likely greater for degree movers. Finally, in any case, fostering contacts between the peoples of Europe seems a worthwhile endeavour, even if it does not necessarily lead to a stronger European identity: it may still reinforce such an identity, promote language learning and so communicative understanding and ensure that individuals retain an open mind to (future) cross-cultural contact, with these networks perhaps spilling over to individuals less predisposed to pan-European interaction. As such, even though all aspects of the impact of student mobility on the development of a concept of eu citizenship have not yet been fully established, it is submitted here that such mobility is still broadly favourable for the European project. 2.4 Conclusion Overall the evidence reviewed above suggests that there is value in, in the view of this author, in promoting student mobility. As regards the ‘economic rationale’, student mobility was positively associated with a greater propensity to cross borders as a highly-skilled migrant, thereby contributing to the optimal

236 N. Rother and T. Nebe, ‘More Mobile, More European? Free Movement and eu Identity’, in E. Recchi and A. Favell (eds.), Pioneers of European Integration: Citizenship and Mobility in the eu, (Edward Elgar Publishing, 2009).

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allocation of this workforce in the European Union. Similarly, it was also submitted that a study period abroad brought with it an increase in the quality of the Union’s human capital stock by developing a welter of ‘hard’ and ‘soft’ skills in the mobile students. Regarding the ‘eu citizenship rationale’, it was submitted that student mobility promotes the progressive development of the legal concept of Union citizenship. Finally, the evidence mostly points to the fact that student mobility is indeed a ‘transformative’ experience: students that experience a study period abroad are as a result more likely to identify as European and to support the European project. On balance, therefore, the literature reviewed in this chapter lends support to the idea of student mobility ‘as a necessity’ rather than luxury investment when viewed from the perspective of the competitiveness of the eu economy as well as its goals of integration.

chapter 3

The Legal Framework for Student Mobility in the European Union1 The legal framework that governs the mobility of students is a contested and controversial topic in the eu. In part, this controversy stems from the lack of consensus regarding the (main) role of the student in society, as well as from the fact that the competence to organise higher education belongs primarily with the Member States. eu involvement in this area is traditionally viewed with suspicion.2 Nevertheless, the contours of the European student can be gleaned from the policy documents issued by the various eu institutions in this regard. Foremost of these are the Council conclusions on a strategic framework for European cooperation in education and training (‘et 2020’).3 Here the dual role of the student, as also apparent in the context of the discussion in Chapter 2 as regards the (perceived) benefits of student mobility, is again apparent: 1.

Education, and in particular higher education,4 is attributed a key role in personal development, societal cohesion and active citizenship. As such,

1 This chapter draws on and brings together work by the same author that was first published elsewhere as: A. Hoogenboom, ‘Mobility of students and the financial sustainability of higher education systems in the eu: a union of harmony or irreconcilable differences?’ 9 Croatian Yearbook of European Law and Policy (2013) 15–60. A. Hoogenboom, ‘Mind the Gap: Mobile Students and their Access to Student grants and Loans in the eu’, 22(1) Maastricht Journal of European and Comparative Law (2015) 96. A. Hoogenboom, ‘In Search of a Rationale for the eu Citizenship Jurisprudence’, 35(2) Oxford Journal of Legal Studies (2015) 301. A. Hoogenboom, ‘I study here, and thus I belong? Mobile Students in the European Union’, in H. Verschueren (ed.), Residence, employment and social rights of mobile persons. On how eu law defines where they belong, (Intersentia, 2016). The research for these articles was first conducted for the purpose of this book. 2 See S. Garben, ‘The Bologna Process: From a European Law Perspective’, 16(2) European Law Journal (2010) 186, p. 187ff. 3 Council conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (‘et 2020’), oj [2009] C 119/2. 4 See Council conclusions of 20 December 2011 on the modernisation of higher education, oj [2011] C 372/36, first paragraph.

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in part at least, education seeks to provide the individual with knowledge and skills for self-understanding, foster a common normative basis and adherence to set of (European) values and to promote ‘intercultural competences, democratic values and respect for fundamental rights and the environment, as well as combat all forms of discrimination’.5 This strand thus corresponds closely to the educational ideal of Bildung with a triple emphasis on promoting rational autonomy and critical capacity, a sense and recognition of being part of a larger community and ‘narrative imagination’ (the capacity to ‘put oneself in another’s shoes’).6 These capacities are crucial for a functioning and cohesive deliberative democracy in which citizens are concerned for the welfare of others and are capable of reflecting on and addressing societal problems and political issues.7 In addition, education and in particular again higher education,8 is to promote (sustainable) economic growth, prosperity and employability. This is a more instrumentalist view of education: an investment in human capital in which the ‘student-as-future-highly-skilled-worker’ who is productive, innovative and adaptive features prominently.9

These two aspects are the two founding elements of the institutional view of the student and are repeated throughout recent policy documentation at the eu level, although the current emphasis is put relatively heavily on the 5 et 2020, p. 2 under ‘emphasises that’, p. 3, para. 1(A/B) and strategic objective 3. 6 See M. Nussbaum, ‘Education for Citizenship in an Era of Global Connection’, 21(4–5) Studies in Philosophy and Education (2002) 289 for the three ‘elements’ and G. Biesta, ‘How General Can Bildung Be? Reflections on the Future of a Modern Educational Ideal’, 36(3) Journal of Philosophy of Education (2002) 377, pp. 377–379, for an exposition of the Bildung ideal. 7 See M. Nussbaum, Not For Profit: Why Democracy Needs the Humanities, (Princeton University Press, 2010), pp. 10–11; 25–26 and J. Arthur, ‘Introduction’. In J. Arthur and K. Bohlin (eds.) Citizenship and Higher Education: the role of universities in communities and society, (Routledge Falmer, 2005), pp. 1–3. For empirical support that higher education in fact does promote political participation and civic engagement, see: B. Hoskins et al., ‘Does Formal Education Have an Impact on Active Citizenship Behaviour’, 7(3) European Educational Research Journal (2008) 386, E. Glaeser et al., ‘Why does democracy need education?’ 12 Journal of Economic Growth (2007) 77, S. Hillygus, ‘The Missing Link: Exploring the Relationship Between Higher Education and Political Engagement’, 27(1) Political Behaviour (2005) 25, M. Egerton, ‘Higher education and civic engagement’, 53(4) British Journal of Sociology (2002) 603. 8 Council conclusions of 20 December 2011 on the modernisation of higher education, oj [2011] C 372/36, pp. 37–38. See also Council Resolution on modernising universities for E ­ urope’s competitiveness in a global knowledge economy of 6 December 2007, 16986/1/07 Rev i. 9 et 2020, p. 2 ‘emphasises that’, p. 3, para. 1(A/B) and strategic objective 2 and 4.

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­contribution of education and training to economic growth and progress.10 At the same time, it should be stressed that these two aspects do not fully make up the ‘European student’. Rather, the two elements are en expression of the eu and Member State conception of the role of the student in society and the economy. What distinguishes the European student in particular, in comparison to the ‘national student’, is the element of mobility, the exercise of the right of free movement to cross borders in pursuit of education. This in particular forms the link with the eu, as opposed to the ‘wholly internal’ national student. That is not to say that the eu’s policies do not or should not affect the position of the student within a national context, but rather that the role of the eu in these sectors is supportive and complementary. With regard to student mobility, arguably, in the light of eu citizenship and aims to establish the internal market, it is the eu that is the primary actor.11 In a nutshell, the eu student is simply a national of one of the Member States in a cross-border educational context. The primary purpose of this chapter is to draw the (legal) contours of that student. As a free moving Union 10

11

Council Conclusions on investing in education and training – a response to ‘Rethinking Education: Investing in skills for better socio-economic outcomes’ and the ‘2013 Annual Growth Survey’, oj [2013] C 64/5, Council conclusions of 26 November 2012 on education and training in Europe 2020 – the contribution of education and training to economic recovery, growth and jobs, oj [2012] C 393/5, Council conclusions of 20 December 2011 on the modernisation of higher education, oj [2011] C 372/36, Council conclusions on the role of education and training in the implementation of the ‘Europe 2020’ strategy, oj [2011] C 70/1, Council conclusions of 11 May 2010 on the social dimension of education and training, oj [2010] C 135/2. European Parliament resolution of 11 September 2012 on Education, Training and Europe 2020, 2012/2045(ini), European Parliament resolution of 20 April 2012 on modernising Europe’s higher education systems, 2011/2294(ini). COM(2012) 669 ­final, Rethinking Education: Investing in skills for better socio-economic outcomes of 20 ­November 2012, COM(2011) 902 final, Education and Training in a smart, sustainable and inclusive Europe, of 20 December 2011, COM(2011) 567, Supporting growth and jobs – an agenda for the modernisation of Europe’s higher education systems of 20 ­September 2011 and COM(2010) 682 final, An Agenda for new skills and jobs: A ­European contribution towards full employment of 23 November 2010. A distinction similar to the ‘Union worker’ as a participant in the internal market as opposed to the purely national worker. That is not to say the eu does not adopt policy relevant to national workers (or wholly internal students for that matter) such as e.g. ­Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time oj [2003] L 299/9. ­However, as a policy it is primarily concerned with the establishment of an internal market and the emphasis thus lies on the aspect of free movement.

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citizen, the mobile student can claim certain rights from secondary legislation as well as from the Treaties as interpreted by the Court of Justice. Thus, the inquiry revolves around under what conditions the exercise of free movement rights for study purposes takes place and what rights such students can claim from the host or home Member State in that context under eu law. In addition, this chapter will seek to inquire into the underlying rationale of the case law as it has developed, comment on its coherence and discuss avenues for future directions. 3.1

The Homo Academicus as eu Citizen

With the introduction of Union citizenship by the Treaty of Maastricht and the Court’s subsequent extensive interpretation of the provisions thereof, the ‘national of a Member State abroad’ is primarily conceptualised as a Union citizen. Indeed, the Court has confirmed that being a ‘student’ or ‘worker’ is a sort of ‘add-on’ status (which carries with it certain legal consequences) to that basic point of departure.12 As such, it would seem prudent, before moving on to the specific study-related rights, to set out a basic understanding of how Union citizenship may or should be understood (at least, according to this author). This section in particular is also an inquiry into the rationale or ‘legitimacy’ of the eu citizenship jurisprudence: a reasoning as to why we should accept the rights attributed to these individuals. 3.1.1 eu Citizenship: The Basic Concept Before continuing, it will be worthwhile to briefly recall the main elements of citizenship of the European Union. As discussed in Chapter 2, Union citizenship as introduced by the Treaty of Maastricht can be said to consist of three interrelated components.13 As a first aspect, eu citizenship constitutes the legal recognition of the moral claim to membership of the European project. It is the simultaneous affirmation that the eu has a people made up of the populations of the eu Member States and articulation of the hope that these peoples one day would come to identify themselves collectively as a European people

12 13

See Case C-46/12, l.n. v Styrelsen for Videregående Uddannelser og Uddannelsesstøtte, ECLI:EU:C:2013:97, para. 25–30. See also S. Benhabib, ‘Borders, Boundaries, and Citizenship’, 38(4) ps: Political Science and Politics (2005) 673, p. 675.

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or community (in addition to rather than replacing the national context).14 The latter is necessary in the light of the continuing quest to imbue the eu with a degree of legitimacy, with eu citizenship functioning as the focal point for the development of the aforementioned ‘thick identity’15 that could provide the justification for the ever-expanding powers of the European Union.16 As a second aspect, eu citizenship forms the basis for political participation in the sense of access to the exercise of public authority at the eu level and, in a lesser sense, to participation in the exercise of local authority when abroad in the eu. This is given practical expression by the rights tied to eu citizenship, including the right vote and stand for the European Parliament, to vote and stand in municipal elections in the country of residence, the right to petition the ep and the European Ombudsman and finally a right to good administration and access to documents of the Union.17 Finally, eu citizenship also exists as a legal concept, at the core of which lies the right of eu citizens ‘to move and reside freely within the territory of the Member States’18 and not suffer discrimination on grounds of nationality.19 3.1.2 eu Citizenship: The Underlying rationale The inquiry into the rationale of (the free movement aspects of) eu citizenship is an important one. As will be seen below, the Court has interpreted the 14

15 16

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C. Barnard, The Substantive Law of the eu: The Four Freedoms, (Oxford University Press, 2013), p. 431ff. In a sense, the right to diplomatic and consular protection of any Member State of the eu when the eu citizen finds himself in a third country where his own Member State is not represented is a practical expression of this membership, see Article 23 tfeu. F. Scharpf, Governing in Europe: Effective and Democratic?, (oup, 1999), pp. 6–10. R. Bellamy and A. Warleigh, ‘Introduction: The Puzzle of eu Citizenship’, in R. Bellamy and A. Warleigh (eds.), Citizenship and Governance in the European Union, (Continuum, 2001), pp. 3–4. See 20, 22–24 tfeu and Articles 39–44 Charter of Fundamental Rights of the European Union. In addition, the so-called ‘citizens’ initiative’ is another expression of democratic participation, see for details Regulation 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative, oj [2011] L 65/1. See Article 21 tfeu and J. Shaw, ‘The Interpretation of European Union Citizenship’, 61(3) The Modern Law Review (1998) 293, p. 302. See Article 18 tfeu and Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458, para. 31: Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.

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relevant provisions of eu free movement law in such a manner as to provide eu citizens, and in particular mobile students, with extensive rights designed to promote their freedom of movement, even where these individuals cannot prove an ‘economic link’. In fact, where it concerns equal treatment as regards the conditions of access to (higher) education in the host State, the rights of the eu citizen are innate in nature: no economic activity, or any other form of integration into host Member State is required in order to invoke them. Normatively, this is somewhat puzzling: what justifies the rights of eu citizens in this regard? Classically, the free movement provisions and the related secondary legislation of the eu institutions applied to market citizens (and their family members): individuals with a Member State nationality crossing borders to pursue an economic activity in another Member State.20 As a sort of quid pro quo for having participated in a project of European economic integration, the establishment of a common market, it was natural for the position of these individuals to be governed by eu law and for them to be endowed with a set of rights in this regard.21 The fact that these rights (e.g. family reunification,22 equal treatment with the nationals of the host Member State as regards social advantages23) were claims, not against the eu, but against the host Member State was balanced out by the fact that these individuals contributed to the economy of said State.24 However, with the entry into force of the Treaty of Maastricht, introducing eu citizenship into the legal vocabulary, this logic was challenged. After some initial hesitation, the Court embarked on an ambitious programme of ­redefining the boundaries of eu free movement law. The Court first relied on 20 The Wirtschaftbürger, see also: M. Everson, European citizenship and the disillusion of the common man, pp. 3–5, available at: http://www.eldh.eu/fileadmin/user_upload/ejdm/ publications/2010/Michelle_Everson_-_Delusion_of_the_Common_Man.pdf. 21 See A. Tryfonidou, ‘In search of the aim of the ec free movement of persons provisions: has the Court of Justice missed the point?’ 46 Common Market Law Review (2009) 1591, p. 1592ff. This underlying rationale may be illustrated with the classic Case 53/81, D.M. Levin v Staatssecretaris van Justitie, ECLI:EU:C:1982:105, para. 10–15, in which the Court relies on the common market ideal as a justification for a progressive interpretation of the concept of ‘worker’ within the meaning of what is now Article 45 tfeu. 22 Now codified in Article 7 (1)(a) jo. 7(1)(d) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, oj [2004] L 158/77 (Directive 2004/38 or Citizen’s Rights Directive). 23 See current Article 7 (2) of by Regulation 492/2011/EU of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union oj [2011] L 141/1 (Regulation 492/2011). 24 A reasoning recently explicitly relied upon by the Court: Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:346, para. 63–66.

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the introduction of eu citizenship to broaden the scope ratione personae of eu law: all Member State nationals, by virtue of being eu citizens, now fell within the scope of eu law.25 Previously the test was more convoluted, in that eu law only applied, ratione personae, to those individuals who, in addition to the ­nationality of one of the Member States (1), had exercised their free movement rights (2) in pursuit of (or intending to pursue) an economic activity abroad (3).26 Secondly, the Citizenship provisions were relied upon to broaden the scope ratione materiae (the situations governed) of eu law. This had two main consequences. First, the Court retained but steadily reduced the impact of its classic jurisdictional rule: the ‘wholly internal situation’.27 This rule specifies that eu (free movement) law does not apply in situations in which there is no ‘crossborder’ link, no element of migration.28 In such situations, the issue is governed by national law.29 In recent case law, and in particular eu citizenship case law, the Court developed an ever more liberal test to find that such a link nevertheless exists: apart from the ‘present’ exercise of free movement rights, the Court increasingly accepts tenuous links with past mobility and future (difficulties in the) exercise of free movement rights as sufficient to bring the matter within the scope of eu law. Secondly, the Court also took the opportunity to extend a 25

26

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See the first expression thereof Case C-85/96, María Martínez Sala v Freistaat Bayern, ECLI:EU:C:1998:217, para. 58–61. See further Dimitri Kochenov, ‘A real European citizenship: a new jurisdiction test: a novel chapter in the development of the Union in Europe’, 18 Columbia Journal of European Law (2011) 56, pp. 66–67. The difference between the old and the new situation is illustrated by Case C-112/91, Hans Werner v Finanzamt Aachen-Innenstadt, ECLI:EU:C:1993:27 on the one hand, and Case C-152/03, Hans-Jürgen Ritter-Coulais and Monique Ritter-Coulais v Finanzamt Germersheim, ECLI:EU:C:2006:123 on the other: both situations concerned an individual working in their Member State of nationality, but residing in another Member State. In the ­former case, the Court held that the movement was not logically connected to the exercise of the free movement rights and thus fell outside the scope of the provisions on the freedom of establishment. It effectively reversed that ruling in Ritter-Coulais. See Joined cases C-64/96 and C-65/96, Land Nordrhein-Westfalen v Kari Uecker and Vera Jacquet v Lan Nordrhein-Westfalen, ECLI:EU:C:1997:285, para. 23: ‘In that regard, it must be noted that citizenship of the Union, established by Article 8 of the ec Treaty, is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law’. Case 175/78, The Queen v Vera Ann Saunders, ECLI:EU:C:1979:88, para. 11. This may lead to situation of ‘reverse discrimination’: mobile eu citizens may be able to invoke more rights due their mobility on the basis of eu law than their non-mobile counterparts. See A. Tryfonidou, ‘Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe’, 35(1) Legal Issues of Economic Integration (2008) 43, p. 46ff for a discussion.

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directly effective, free standing right of free movement to all eu citizens30 and broadened the application of the principle of non-discrimination in Article 18 tfeu by doing away with some of the limitations applying to the market freedoms (e.g. as regards work seekers31) and, importantly, by extending its protection also to non-economically active eu nationals lawfully resident in the host State.32 The latter meant that economically inactive eu citizens could now claim equal treatment with the nationals of the host Member States with regard to social assistance.33 As such, the Court has been expanding the scope of eu free movement law and the principle of non-discrimination while simultaneously steadily eroding the economic nexus that underpinned these rights previously. In the absence of that nexus, the question may be raised as to what should fill the void in this regard. There must be some intrinsic value to promoting eu citizenship that is capable of justifying the Court’s expansive interpretation. The rub of it, it is submitted here, lies with the ‘migrant’ element at heart of eu citizenship. Whereas the Zambrano line of case law briefly seemed to challenge the ‘migrant paradigm’ underlying eu citizenship and the market freedoms more generally,34 the case of Iida confirms a vision of the Court in which free movement still makes up the core of the argument in favour of both applying eu law to a particular situation, as well to provide eu citizens with the protection of (extensively interpreted) eu law-based rights: The common element in the above situations35 is that, although they are governed by legislation which falls a priori within the competence 30 31 32

33 34

35

See Case C-413/99, Baumbast and R v Secretary of State for the Home Department, ECLI:EU: C:2002:493, in particular para. 81–86. Case C-138/02, Brian Francis Collins v Secretary of State for Work and Pensions, ECLI:EU: C:2004:172, para. 63ff. See E. Spaventa, ‘Seeing the wood despite the trees? On the scope of Union Citizenship and its constitutional effects’, 45 Common Market Law Review (2008) 13, pp. 16–27. See further F. Jacobs, ‘Citizenship of the European Union – A Legal Analysis’, 13(5) European Law Journal (2007) 591 for an overview of the foundational cases in this regard. See Case C-209/03, The Queen, on application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ECLI:EU:C:2005:169, para. 30ff. Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm), ECLI:EU: C:2011:124, see in particular L. Ankersmit and W. Geursen, ‘Ruiz Zambrano: de interne situatie voorbij’, 4 Asiel en Migrantenrecht (2011) 156 and K. Lenaerts, ‘“Civis europaeus sum”: van grensoverschrijdende aanknoping naar status van burger van de Unie’, 60(1) sew: Tijdschrift voor Europees en Economisch Recht (2012) 2. Referring the Zhu and Chen, Eind and Dereci type of cases: Case C-40/11, Yoshikazu Iida v Stadt Ulm, ECLI:EU:C:2012:691, para. 69–71.

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of the Member States, namely legislation on the right of entry and stay of ­third-country nationals outside the scope of Directives 2003/109 and 2004/38, they none the less have an intrinsic connection with the freedom of movement of a Union citizen which prevents the right of entry and residence from being refused to those nationals in the Member State of residence of that citizen, in order not to interfere with that freedom.36 (emphasis by author) Where, however, does this focus on and respect for a legal concept of eu citizenship as a migratory identity come from? If Derrida is right that international institutions that have come into existence after World War ii have a historical and philosohical intelligibility to them,37 it follows that neither the European Union as a whole, nor the particular legal concept of eu citizenship is a ‘random event’, but rather the culmination of a process of evolution with deep philosophical roots. In that context it is submitted here that the writings of Kant, and in particular his famous essay of Zum ewigen Frieden,38 may be an important tool to further our understanding of the legal concept of eu citizenship in this regard. 3.1.3 The eu and Zum ewigen Frieden The European Union as a construct shares many elements with the ‘Great ­Federation’ described by Kant meant to safeguard Perpetual Peace and the emergence of which, first in Europe,39 he may have foreshadowed.40 Whereas Kant did not support the creation of an International State (unitary), as this would denigrate into a soulless despotism, at the same time he also rejected absolute diversity of an international legal order composed of separate 36

37 38

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Case C-40/11, Yoshikazu Iida v Stadt Ulm, ECLI:EU:C:2012:691, para. 72. Recently confirmed in Case C-165/14, Alfredo Rendón Marín v Administración del Estado, ECLI:EU:C:2016:675, para. 75. J. Derrida, ‘Of Philosophy: Debt and Duty’, in P. Trifonas (ed. and trans.), Ethics, Institutions and the Right to Philosophy, (Rowman and Littlefield Publishers, 2002), p. 3. The version relied upon here is the translation of D. Colclasure in P. Kleingeld (ed.), ­Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale University Press, 2006). In I. Kant, ‘Idea for a Universal History from a Cosmopolitan Perspective’, tr. D. C ­ olclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and H ­ istory, (Yale University Press, 2006), p. 15. Kant refers to ‘our part of the world’ as furthest along in the movement towards the ideal end. See the passage ‘(…) ultimately prepare everything for a future political body the likes of which the earlier world has never known’. Ibid, p. 14.

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­ ation-states left fully to their own devices and the propensity to war this n would bring (diversity as a constant threat between neighbours).41 Rather, the Kantian ideal turned upon three sets of relations governed by three levels of law. The first level applied to the relations between individuals inter se and between individuals and the State: these were to be governed by the principles of a ‘just civil constitution’ or republic constitution (ius civitatis). These principles included respect for the freedom42 of the members of society, equality before the law, the ‘dependence on a single common legislation’ willed by all (a Grundgesetz), representative government and separation between the legislative and executive.43 The consequence of a State organised according these principles would be that the decision to go to war would be made by all, and thus increasingly unlikely as the cost of war to society increases.44 Kant thus laid the foundations of what is now known as Democratic Peace Theory45 which posits that democratic states do not go to war against each other.46 Kant’s second level, the international legal order (ius gentium) was partly an instituted one and partly organic. It was instituted, in that it required adherence of the States to the Articles of Peace set out in the first part of the e­ ssay

41

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I. Kant, ‘Idea for a Universal History from a Cosmopolitan Perspective’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale University Press, 2006), pp. 9–13 and I. Kant, ‘Toward Perpetual Peace: A ­Philosophical Sketch’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other ­Writings on Politics Peace and History, (Yale University Press, 2006), pp. 78–81 and in particular 91–92. The republican constitution was to guarantee the freedom to develop oneself in accordance with one’s rational purpose while respecting the freedom of others to do the same: I. Kant, ‘Idea for a Universal History from a Cosmopolitan Perspective’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale University Press, 2006), p. 8. See D. Archibugi, ‘Immanuel Kant, Cosmopolitan Law and Peace’, 1(4) European Journal of International Relations (1995) 429, p. 445ff. I. Kant, ‘Idea for a Universal History from a Cosmopolitan Perspective’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale University Press, 2006), pp. 13–14 and I. Kant, ‘Toward Perpetual Peace: A Philosophical Sketch’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale University Press, 2006), pp. 78–81 and in particular 74–75. M. Doyle, ‘Kant, Liberal Legacies and Foreign Affairs’, 12(3) Philosophy and Public Affairs (1983) 205. B. Russet, Grasping the Democratic Peace: Principles for a post-cold war world, (Princeton University Press, 1993), p. 4.

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Zum ewigen Frieden.47 It was organic in that the legal order would steadily emerge with the first State to adopt the just civil constitution. With the reduction in the capacity to go to war, and thus the threat that country posed to its neighbours, this event would form the impetus for a progressively ­spreading peace movement. In this context the question could be raised, however, what first prompted (the citizens of) this State to adopt the just civil constitution and why they would, once adopted, adhere to it (as well as the Articles of Peace)? This is the last piece of the puzzle. In the Kantian view, the catalyst is formed by the internationally shared desire for peace and mutual coexistence reinforced by the desire for trade and prosperity: the ‘Spirit of Commerce’ is by its nature incompatible with war, as war disrupts trade routes, socio-economic structures and increases sovereign debt.48 For such a shared conscience to develop, however, relations between peoples are essential and this is where the so-called cosmopolitan right (ius cosmopoliticum) to hospitality comes in. This principle sought to guarantee the conditions for first contact, the right to visit and present oneself to a community foreign to oneself (to attempt interaction).49 This right to universal hospitality was not unlimited however: it is not the right of a guest nor is access guaranteed in all circumstances.50 What was crucial, however, is the respect for the essence of the right to hospitality, the potentiality for initial contact as conditio sine qua non for the formation of commercial relations and, eventually, the development of a shared sense of community bound together by similar values of right and wrong, and above all by a desire to maintain peace.51 The logic for the establishment of the predecessor to the current eu, the ecsc and the later eec reflects the sentiments expressed above: the eu was founded on the twin pillars of the desire to make war between the Member 47

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I. Kant, ‘Toward Perpetual Peace: A Philosophical Sketch’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale ­University Press, 2006), pp. 67–71. I. Kant, ‘Toward Perpetual Peace: A Philosophical Sketch’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale ­University Press, 2006), pp. 78–81 and in particular 88–92 and Kant, ‘Idea for a Universal History from a Cosmopolitan Perspective’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale University Press, 2006), pp. 13–14. I. Kant, ‘Toward Perpetual Peace: A Philosophical Sketch’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale ­University Press, 2006), p. 82. Ibid. Ibid, 82–85.

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States ‘materially impossible’ through positively institutionalising economic cooperation and integration.52 Its unofficial motto ‘unity in diversity’ also expresses the constant tension between the pursuit of commonly agreed-upon eu objectives (involving some degree of approximation or harmonisation) and respect for the diversity and plurality of the Member States.53 Too much in either direction is, as it was with Kant, undesirable. Kant’s requirement that the component states were constituted around a ‘just civil constitution’ is also, in a fashion, borne out: only those European states54 are allowed to join that satisfy the so-called Copenhagen Criteria.55 In short, the Criteria require the candidate country to have a stable democracy, to be committed to the values set out in Article 2 teu (including respect for fundamental rights, the rule of law and separation of powers), to have a competitive market economy capable of participating in the internal market, and finally to accept the acquis communautaire and the spirit of European integration.56 Finally, with the Treaty of Maastricht, also the cosmopolitan ideal is reflected in the eu project: it introduced the notion of citizenship beyond the nation-state (although not so broad as the ‘citizen of the world’ ideal) which, crucially, encompassed as

52

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Schuman Declaration of 9 May 1950 available at: https://europa.eu/european-union/ about-eu/symbols/europe-day/schuman-declaration_en last visited 07.04.2017. See further the preamble to the Treaty establishing the European Coal and Steel Community (Hereafter tecsc). And the Preamble to the Treaty Establishing the European Economic Community (hereafter: teec). See also the contrast between current Article 4(3) teu, articulating the principle of ­sincere cooperation of the Member States in the achievement of eu objectives and A ­ rticle 4(2) teu which admonishes the eu to have respect for the national identities of the Member States. See further on this clash: F. Cheneval, ‘Lost in Universalization? On the Difficulty of Localizing the European intellectual’, in J. Lacroix and K. Nicolaïdis, European Stories: Intellectual Debates on Europe in National Contexts, (Oxford University Press, 2010), p. 31ff. According to the Commission, the designation ‘European State’ essentially revolves around European identity informed by a combination of geographical, historical and cultural elements: Supplement Bulletin ec 3/92 of the Commission, Europe and the challenge of enlargement, p. 8. It emphasises the eu as a shared projected between states bound together by common ideas, historical and cultural experiences, patterns of trade and political ties; see further see N. Davies, Europe East and West, (Jonathan Cape, 2006), pp. 5–21 for an overview of the building blocks of the (idea of) Europe. See Copenhagen European Council of 21–22 June 1993, conclusions of the presidency, para. 7A iii. F. Hoffmeister, ‘Enlargement’, in A. Ott and K. Inglis (eds.), Handbook on European E­ nlargement, (tmc Asser Press, 2002), pp. 87–103 and Copenhagen European Council of 21–22 June 1993, conclusions of the presidency, para. 7A iii.

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its centrepiece ‘the right to move and reside freely within the territory of the Member States’. 3.1.4 The eu Citizen as Kantian Cosmopolitan What does this then mean for the understanding of a legal concept of eu citizenship? Essentially, the cosmopolitan right is meant to guarantee (a degree of) free movement of peoples with a view to bringing these peoples and states closer together in harmonious coexistence. Within the eu, Union citizenship thus has a migratory essence to it: mobile eu citizens contribute not merely to the common market in the narrow sense (the ‘commerce’ aspect), but also to the rapprochement of the European peoples and their coalescence among mutually adhered to norms and values (beyond the immediate peace concerns of the 1950s).57 Indeed, it was already referred to in Chapter 2 that transnational interaction between cultures and peoples indeed seems to promote support for common undertakings (such as the European Union project), foster understanding and the discovery of shared values and reduces prejudice and reliance on stereotyping.58 Of course, this begs the question whether generating support for the eu is in fact a worthwhile undertaking. It is submitted here that it is. Whereas the success of the eu in maintaining peace between its constituent Members has paradoxically led this aim to lose some of its legitimating force, and while in the current economic crisis the economic rationale for it is also questioned, there remains the powerful argument that the eu is necessary to protect and defend the set of European values, social norms, culture, and a way a life that underlie it from the centrifugal and impersonal forces of internationalisation, ‘modernisation’ and globalisation.59 The preamble of the Charter of Fundamental Rights of the European Union reminds us of this very aim where it states that the Union ‘contributes to the preservation and to the development of these common values [as set out in the Charter]’. That is not to say that all 57

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K. Deutsch et al., ‘Political Community and the North Atlantic Area’, in B. Nelsen and A. Stubb, The European Union: Readings on the Theory and Practice of European Integration, (Lynne Rienner Publishers, 2003), pp. 123–124, 129, 133–136. T. Pettigrew and L. Tropp, ‘A meta-analytic test of intergroup contract theory’, 90(5) ­Journal of Personality and Social Psychology (2006) 751 and K. Deutsch et al., ‘Political Community and the North Atlantic Area’, in B. Nelsen and A. Stubb, The European Union: Readings on the Theory and Practice of European Integration, (Lynne Rienner Publishers, 2003), pp. 123–124, 129, 133–136. For empirical verification, see T. Kuhn, ‘Individual transnationalism, globalisation and euroscepticism: An empirical test of Deutsch’ transactionalist theory’, 50(6) European Journal of Political Research (2011) 811, pp. 814, 827. See J. Habermas, ‘Why Europe Needs a Constitution’, 11 New Left Review (2001) 5, pp. 8–11.

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European values are the same, nor should it be a goal that through eu citizenship a homogeneous population is or will be created. However, some basic elements that make up the bedrock of European identity and society at large, including diversity as a value for its own sake, social inclusion, respect for human rights, and other elements mentioned, for example, in Article 2 teu are perhaps sufficiently general as to be capable of eliciting a common defence from perceived threats. If so, a sense of eu citizenship, encouraged through interactions between European peoples in the context of the exercise of free movement rights can contribute to the realisation and awareness of these common values and cultural elements, with the European Union functioning as a forum for the exploration and promotion of these values, as well as the fulcrum for their projection in the wider world.60 Promoting the mobility of eu citizens thus, in short, reinforces the very values held dear by the peoples of Europe (or at least their continued development and clarification) and constitutes a powerful justification for a progressive interpretation of rights of free movement and non-discrimination. 3.1.5 Clarifying Free Movement Concepts and Their Inherent Tensions As there is arguably a good justification for the progressive interpretation of the free movement rights of eu citizens, it is worth looking more closely at some of the underlying concepts in this regard. The basic unit of analysis is, as detailed in the introduction, a Union citizen – a status acquired through possession of the nationality of one of the Member States of the eu.61 This is the first delimitation, which excludes third-country nationals from autonomously deriving rights from the eu citizenship provisions.62 Secondly, as seen above, the essence of the eu citizen is a form of ‘movement’ (in the broad sense) or perhaps more accurately: the potentiality of being a ‘foreigner/visitor’ in a Member State other than the one of nationality.63 The main provision in this regard is Article 21 tfeu: 60

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This self-elaboration of an idea of Europe and progressive development of its values has been considered Europe’s primary responsibility: S. Glendinning, ‘Derrida’s Europe: “Greek, Christian and Beyond”’, in A. Czajka and B. Isyar (eds.), Europe After Derrida: Crisis and Potentiality, (Edinburgh University Press Ltd, 2014), p. 46. See Article 20 tfeu. It should be noted that not necessarily all nationals all have Union citizenship, see Declaration 63 Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’ annexed to the Treaty on the Functioning of the European Union. Case C-40/11, Yoshikazu Iida v Stadt Ulm, ECLI:EU:C:2012:691, para. 66. Note, the focus is here on eu internal mobility of eu citizens, which is the most developed of the cosmopolitan right.

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Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. This right is made up out of two elements: 1.

2.

64

The right to leave one’s Member State of origin.64 This right allows an eu citizen to challenge restrictions imposed by the home Member State, both measures directly hampering ‘exit’ (e.g. non-issue of a travel document) as well as measures that indirectly impede such movement: where the national provisions put an individual at a disadvantage for having been mobile (e.g. loss of entitlements due to residence abroad). In addition, this aspect also catches measures designed to restrict the period of residence abroad (see below as regards portability of student grants). At the same time, however, it is recognised within the eu context that in some situations Member States can justifiably directly or indirectly impede the exit of their own nationals in order to protect certain legitimate interests.65 The second part directly addresses the right of hospitality: the right to enter and reside in another Member State. There is a perpetual tension here. On the one hand, there is ‘the power of invitation’ of the host Member State which links with the sovereignty to determine the boundaries of membership of society, the pursuit of values and the enforcement of certain norms. On the other hand there is, at the very core at least, a right of hospitality that can be claimed by the foreigner, which can never be reduced ‘to zero’ as it were without violating the ius cosmopoliticum and the goals it is intended to safeguard.66 As such, there is always a balancing act to be conducted between free movement on the one hand and the sovereignty of Member States (as bounded communities) on the other.

Case C-33/07, Ministerul Administraţiei şi Internelor – Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa, ECLI:EU:C:2008:396, para. 18. 65 See in this regard Case C-430/10, Hristo Gaydarov v Director na Glavna direktsia ­“Ohranitelna politsia” pri Ministerstvo na vatreshnite raboti, ECLI:EU:C:2011:749, Case C-434/10, Petar Aladzhov v Zamestnik director na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti, ECLI:EU:C:2011:750 and Case C-249/11, Hristo ­Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti, ECLI:EU:C:2012:608. 66 J. Derrida, ‘Foreigner question’, in A. Dufourmantelle (ed.), Of Hospitality: Anne Dufourmantelle invites Jacques Derrida to respond, trans. R. Bowlby, (Stanford University Press, 2000), pp. 59–61.

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With the adoption of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States,67 an overarching attempt has been made by the eu legislator, drawing on the case law of the Court of Justice in this regard, to balance these issues just mentioned (although with a focus on the relationship between the eu citizen and the host State). This Directive will be further examined below where it concerns the position of students. Before turning to that section, however, a further examination of another important right is necessary: the principle of non-discrimination on grounds of nationality, enshrined in Article 18 tfeu. This article provides that: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. It is interesting to remark, in the light of the above, that the principle does not set out a right of equal treatment per se. Rather, it keeps the ‘foreigner status’ intact, by recognising the differences between the foreigner and the host Member State national, but forbidding the State to attach consequences thereto. In terms of scope, three conditions need be satisfied before the principle can be invoked: – First, the principle of non-discrimination on grounds of nationality only ­applies to eu citizens (scope ratione personae), although the benefit can be extended to tcn family members who, it should be stressed again, do not derive any autonomous rights in this regard.68 It should further be mentioned that the principle operates solely in the relationship between two categories of eu citizens: the migrant eu citizen and the host Member State national.69 The comparator group thus always consists of eu citizens. Finally, in order to invoke the principle of equal treatment in order to gain access 67

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Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No. 1612/68 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. See A. Epiney, ‘The Scope of Article 12 ec: Some Remarks on the Influence of European Citizenship’, 13(5) European Law Journal (2007) 611, pp. 613–614 and Case C-40/11, Yoshikazu Iida v Stadt Ulm, ECLI:EU:C:2012:691, para. 66–67. Joined cases C-22/08 and C-23/08, Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (arge) Nürnberg 900, ECLI:EU:C:2009:344, para. 51–52.

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to social assistance benefits, the Court has imposed the requirement that the individual in question must be lawfully resident in the host Member State.70 Lawful residence in this regard had been consistently interpreted broadly and included lawful residence under eu law instruments,71 on the basis of national law as evidenced by a residence permit72 or by the mere (tolerated) presence of the individual in the territory of the host State.73 Nonetheless in Dano the Court seems to have limited its formerly broad approach. In that case, the applicants were denied a right to equal treatment because they did not satisfy the conditions for residence under eu law74 – despite the fact that their residence was apparently tolerated by Germany (suggesting residence rights under national law). It may thus be so that only residence satisfying the conditions laid out in eu law instruments (and perhaps limited specifically to Directive 2004/38) suffices for a Union citizen to be able to rely on the principle of non-discrimination on grounds of nationality. – Secondly, in terms of the scope ratione materiae, the reach of the right of equal treatment is crosscutting. In the context with which we are here concerned, it applies in all situations involving the exercise of free movement rights by an eu citizen, including situations where the measure at issue restricts or hampers the exercise of free movement rights or where by granting equal treatment the exercise of free movement could be promoted.75 – Thirdly, while the Court has recognised the direct effect of Article 18 tfeu, allowing individuals to challenge incompatible legislation before a national court, it is currently unclear whether it is applicable in horizontal situations. Case law suggests that where there is a certain imbalance in a particular relationship, whereby one party holds quasi regulatory power and the other is subject thereto, Article 18 tfeu applies.76 This may be important in ­student 70 71

Case C-85/96, María Martínez Sala v Freistaat Bayern, ECLI:EU:C:1998:217, para. 61–63. Case C-209/03, The Queen, on application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ECLI:EU:C:2005:169. 72 Case C-456/02, Michel Trojani v Centre public d’aide sociale de Bruxelles (cpas), ECLI:EU:C:2004:488, para. 43. 73 Case C-85/96, Martínez Sala, ECLI:EU:C:1998:217, para. 60–61. 74 Case C-333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358, para. 69, 81. 75 Case C-274/96, Criminal proceedings against Horst Otto Bickel and Ulrich Franz, ECLI:EU:C:1998:563, para. 13–18. 76 M. de Mol, ‘The novel approach of the cjeu on the horizontal direct effect of the eu principle of non-discrimination: (unbridled) expansionism of eu law?’ 18(1–2) Maastricht Journal of European and Comparative Law (2011) 109, pp. 116–117.

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cases where the student in question seeks to challenge discriminatory measures adopted by a higher education institute (not necessarily a public institute) or an association thereof. It may also be important in issues of student housing where (for example) preference is given to the host Member State nationals over migrant eu citizens.77 After having set out these basic elements and considered the role of eu citizenship in the case law of the Court, it is now time to turn to take a closer look at the eu student in the case law of the Court and the secondary legislation adopted by the Member States. 3.2

Mobile Students as Citizens and Their Rights under eu Law

At the outset, it may be useful to define some of the general concepts that will be used when discussing the case law of the Court of Justice. For ease of reference, three types of students are considered when discussing their respective rights under eu law. 3.2.1 Student Statuses under eu Law 3.2.1.1 The Union Citizen This is a student (enrolled, or seeking to enrol in higher education) whereby the conceptual point of departure is that he or she is a European Union citizen but without having a particular Member State nationality. Obviously, as matters currently stand, such a position is legally impossible, as having a nationality of one of the Member States is a precondition for having the status of Union citizen.78 It is nonetheless valuable as a thought experiment to consider a ­‘basic’ Union citizen, as the Court in its recent case law seems inclined to reverse that position. Indeed, it can be said to have ‘demoted’ having the nationality of one of the Member States of the eu to a mere ‘connecting factor’ (a means by which a student may be connected to particular territorial unit that 77

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See Case C-411/98, Angelo Ferlini v Centre Hospitalier de Luxembourg, [2000] ecr I-8081, para. 50 in which the fee scales adopted by a private association of hospitals was examined for compatibility with Article 18 tfeu. The Court noted that: ‘According to the caselaw of the Court, the first paragraph of Article 6 of the Treaty also applies in cases where a group or organisation such as the ehl exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms guaranteed under the Treaty’. See Article 20(1) tfeu.

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is a Member State of the eu).79 As such, the ‘Union citizen’ will be assumed, as a point of departure, to have no particular connection to any of the Member States of the eu. The question then becomes what rights such a person can or cannot claim and under what circumstances. 3.2.1.2 The Student-Worker As a matter of definition the student-worker is a category of Union citizen who, in addition to being enrolled, or seeking to enrol, in higher education, has the status of ‘worker’ under eu law. The Court has recently reconfirmed that the student can claim multiple statuses, thereby extending his or her rights in matters of education under eu law. The fact that a student-worker came to the host Member State with the principal intention of studying does not disqualify him from obtaining this worker status.80 Under Union law, a worker within the meaning of Article 45 tfeu is defined as someone who is in a relationship of employment, the essential feature of which is that he or she ‘for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration’.81 Moreover, the scale of his activities, taken as a whole, must be such as to constitute a genuine and effective economic activity and may not be on such a small scale as to be purely marginal and ancillary.82 In this regard, the Court of Justice has always insisted on a broad interpretation of the concept, stressing that neither the sui generis nature of the employment relationship under national law, nor the level of productivity of the person concerned, the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether or not the person is a worker for the purposes of Community law.83

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Case C-359/13, Martens, ECLI:EU:C:2015:118, para. 41, Joined Cases C-523/11 and C-585/11, Laurence Prinz v Region Hannover and Philipp Seeberger v Studentenwerk Heidelberg, ECLI:EU:C:2013:524, para. 38. See also the reasoning in case l.n., in which the nationality of the applicant was unknown: Case C-46/12, l.n., ECLI:EU:C:2013:97. Case C-46/12, l.n., ECLI:EU:C:2013:97, para. 46–47. Case 66/85, Deborah Lawrie-Blum v Land Baden-Württemberg, ECLI:EU:C:1986:284 para. 17. Case 53/81, D.M. Levin v Staatssecretaris van Justitie, ECLI:EU:C:1982:105, para. 17. Case C-188/00, Bülent Kurz, né Yüce v Land Baden-Württemberg, ECLI:EU:C:2002:694, para. 32.

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Rather the ‘genuine’ nature of the work activity is classically assessed by reference to the number of hours worked: case law suggests that an individual working for about 10 hours a week can be considered a worker.84 At the same time, recent judgments clarify that this 10-hours-a-week rule is not a hard lower limit. In Genc, the Court left it to the national court to find whether an individual working some 5,5 hours per week could nevertheless be considered a worker, having regard to: (…) not only to the number of working hours and the level of remuneration but also to the right to 28 days of paid leave, to the continued payment of wages in the event of sickness, and to a contract of employment which is subject to the relevant collective agreement, in conjunction with the fact that her contractual relationship with the same undertaking has lasted for almost four years.85 It therefore seems that the Court is prescribing a dual test: Where the number of hours worked per week are equal to or over 10 hours, there seems to be a presumption that the individual is engaged in a genuine economic activity. Should, in the alternative, the number of hours worked per week dip below that number, the Court nevertheless requires the national court to take into account the employment relationship as a whole to determine whether the individual can be seen as a worker; in that context the Court seems to attach weight as to whether the individual can be considered part of the normal workforce (collective labour agreement, entitlement to vacation days, duration of contract etc.). As such, for the phenomenon of ‘student-worker’, a fulltime student who, in addition engages in part-time employment for four nights a week for a period of 2,5 hours will most likely qualify as ‘worker’ within the meaning of Article 45 tfeu. Moreover, for the purpose of this research, it will be assumed that what was written above as regards the worker holds true, mutatis mutandis, for the

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Case C-444/93, Ursula Megner and Hildegard Scheffel v Innungskrankenkasse Vorderpfalz, now Innungskrankenkasse Rheinhessen-Pfalz, ECLI:EU:C:1995:442, para. 18–20. See further the Opinion of A-G Geelhoed in Case C-413/03, Ninni-Orasche, ECLI:EU:C:2003:117, para. 33. Case C-14/09, Hava Genc v Land Berlin, ECLI:EU:C:2010:57, para. 27. See further Case C-432/14, O v Bio Philippe Auguste sarl, ECLI:EU:C:2015:643, para.24–25 regarding the question whether someone having worked for four days could be seen as a worker.

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­ osition of the self-employed person under Article 49 tfeu. This parallelism p was confirmed, specifically where it concerned access to student grants, for self-employed persons in the case of Meeusen.86 3.2.1.3 The Student-Family Member The third type of student referred to here is the student who can invoke certain derivative rights by reason of being connected, or having been connected, as a family member to a Union citizen (who is typically, or has been, economically active). This allows him or her to claim more extensive education-related rights from particular Member States than the regular Union citizen has access to, as will be seen below. In terms of who constitutes a ‘family member’, this should be held to include at least all family members as defined in Article 2(2) of Directive 2004/38, such as for example children and/or spouses. However, as will be seen and discussed more extensively later, the net must be cast wider. Specifically where it concerns educational rights, the definition of ‘child’ in certain circumstances goes beyond that used in Directive 2004/38. A next question is concerns the position of those categories of family members designated in Article 3(2)(a) of Directive 2004/38 and the partner with whom a Union citizen has a durable relationship (Article 3(2)(b)). Whereas it is clear that this extended category does not have automatic rights of entry and residence when joining or accompanying the Union citizen,87 the question must be raised what rights this category may claim once having been authorised to reside. More concretely: can, for example, the durable partner of a Union worker derive equal treatment rights from that status in the same way that a spouse can?88 The view espoused here is that their situation must be treated as analogous to, and be subsumed under, that of a ‘regular’ family member within the sense of Article 2(2) of Directive 2004/38 for the purposes of claiming ‘follow-on’ rights beyond initial entry, such as in particular equal treatment rights. If this conclusion is correct, moreover, these type of 3(2) situations should also be able to claim rights going beyond those specified specifically in Directive 2004/38, as the Court increasingly seems to look at Directive

86 Case C-337/97, C.P.M. Meeusen v Hoofddirectie van de Informatie Beheer Groep, ECLI:EU:C:1999:284, para. 27–29. 87 See Article 3(2) Directive 2004/38 as well as C-83/11, Secretary of State for the Home Department v Muhammad Sazzadur Rahman and Others, ECLI:EU:C:2012:519. 88 Cfr. Article 24 Directive 2004/38.

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2004/38 to define the rights of Union citizens even where the subject matter of the case concerns the Treaty provisions.89 This view may be supported by a textual, systematic and an object-and-­ purpose interpretation of the Directive. As regards the textual argument, no provisions seem to exclude persons under Article 3(2) from claiming rights beyond initial entry in the Directive (or in other parts of eu law). It is true, of course, that Article 2 defines, ‘for the purpose of the Directive’, the term family member (referring to Article 2(2) Directive 2004/38). As such, ‘family member’ in the Directive, and rights associated therewith, should then only be held to refer to persons included Article 2(2). However, Article 8(5) of Directive 2004/38 specifies that For the registration certificate to be issued to family members of Union citizens, who are themselves Union citizens, Member States may require the following documents to be presented. The article then proceeds to list the evidence that may be required, in litera A-F, of persons falling under Article 2(2) ánd Article 3(2). This suggests strongly that ‘family member’ here encompasses the broader interpretation (one including Article 3(2) situations). Recital 6 provides: In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons (…). (emphasis by author) This seems to indicate that the application of the principle of non-discrimination on grounds of nationality is not excluded where it concerns Article 3(2) categories of family members. Secondly, from a systematic point of view, this interpretation also seems correct. eu law is replete with examples where the competence to determine the initial entry of a particular person is left to the relative discretion of the Member States, but where once the person in question is admitted he or she 89

Case C-333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358, para. 57–62.

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enjoys (progressively or not) the full canopy of rights. A good example of this approach is the progressive integration of Turkish workers under the system of the Ankara Agreement and Decision 1/80.90 From an object-and-purpose point of view, finally, it would seem prudent that once admission has been granted by the relevant Member State, in the light of ensuring the integration of these individuals in the host Member State society, they are subsumed under the general ‘family member’ heading. ­Otherwise this type of family member risks ending up in limbo: being allowed to stay, but not to work (which would otherwise be guaranteed under Article 23 Directive 2004/38) for example. It would also create a ‘hierarchy of family members’ vis-à-vis the rights specified in the system of the Directive (and more generally in eu law), without there being a good legal reason for making such a distinction. Overall, therefore, it is submitted here that Article 3(2) situations should be subsumed under the concept of ‘family member’ after initial entry for the purposes of claiming rights under eu law. Whereas the rest of this research will focus on the position with respect to educational rights of the family member ‘child’ and the ‘spouse’ primarily, it should be kept in mind that the reasoning set out should also apply, mutatis mutandis, to persons in a durable relationship with a Union citizen and/or other family members.91 3.2.2 Approach to Discussing eu Free Movement Law Applying to Students The basic point of departure for analysis will be the so-called Union citizen. He or she decides to exercise his or her free movement rights for the purpose studying at a higher education institute established in Member State X. The issues of primary relevance in this regard are: – The conditions under which this student can derive a right of residence in the host Member State. 90

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See e.g. Case C-294/06, The Queen, on the application of Ezgi Payir, Burhan Akyuz, Birol ­ zturk v Secretary of State for the Home Department, ECLI:EU:C:2008:36, para. 36: ‘It O should also be recalled that Decision No. 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territory of Turkish nationals and the conditions under which they may take up their first employment, but merely regulates (in Article 6) the situation of Turkish workers who are already integrated into the labour force of the host Member State (…)’. With the exception of the special position of the child: as will be seen, in particular circumstances the child of a Union worker/self-employed person is entitled to a canopy of rights not attributed to other family members, see more extensively below.

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– Rights of equal treatment as regards the conditions of access to education in the host Member State. – The conditions under which the student can claim study facilitating benefits either in the host Member State or in the form of portable benefits from the ‘home’ Member State. As will be discussed in more detail below, there is a relatively extensive line of case law of the Court of Justice dealing with these issues.92 92

As before, a ‘student case’ will be defined as cases in which at least one preliminary question or infringement claim deals with education related rights that can be invoked on the basis of eu law (e.g. in particular involving the right to equal treatment on grounds of nationality and/or invocation of free movement rights). Case 9/74, Casagrande v Landeshauptstadt München, ECLI:EU:C:1974:74, Case 152/82, Sandro Forcheri and his wife Marisa Forcheri, née Marino, v Belgian State and asbl Institut Supérieur de Sciences Humaines Appliquées, ECLI:EU:C:1983:205, Case 293/83, Françoise Gravier v City of Liège, ECLI:EU:C:1985:69, Case 309/85, Bruno Barra contre État belge et Ville de Liège, ECLI:EU:C:1988:42, Case 24/86, Vincent Blaizot v University of Liège and others, ECLI:EU:C:1988:43, Case 39/86, Sylvie Lair v Universität Hannover, ECLI:EU:C:1988:322, Case 42/87, Commission v Belgium, ECLI:EU:C:1988:454, Case 197/86, Steven Malcolm Brown v The Secretary of State for Scotland, ECLI:EU:C:1988:323, Case 235/87, Annunziata Matteucci v Communauté française of Belgium and Commissariat général aux relations internationales of the Communauté française of Belgium, ECLI:EU:C:1988:460, Case 263/86, Belgian State v René Humbel and Marie-Thérèse Edel, ECLI:EU:C:1988:451, Joined Cases C-389 /87 and C-390/87, G.B.C. Echternach and A. Moritz v Minister van Onderwijs en Wetenschappen, ECLI:EU:C:1989:130, Case C-308/89, Carmina di Leo v Land Berlin, ECLI:EU:C:1990:400, Case C-3/90, M.J.E. Bernini v Minister van Onderwijs en Wetenschappen, ECLI:EU:C:1992:89, Case C-357/89, V.J.M. Raulin v Minister van Onderwijs en Wetenschappen, ECLI:EU:C:1992:87, Case C-109/92, Stephan Max Wirth v Landeshauptstadt Hannover, ECLI:EU:C:1993:916, Case C-47/93, Commission v Belgium, ECLI:EU:C:1994:181, Case C-7/94, Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal, ECLI:EU:C:1995:118, Case C-337/97, C.P.M. Meeusen v Hoofddirectie van de Informatie Beheer Groep, ECLI:EU:C:1999:284, Case C-424/98, Commission v Italy, ECLI:EU:C:2000:287, Case C-184/99, Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458, Case C-33/99, Hassan Fahmi and M. Esmoris Cerdeiro-Pinedo Amado v Bestuur van de Sociale Verzekeringsbank, ECLI:EU:C:2001:176, Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, ECLI:EU:C:2002:493, Case C-413/01, Franca NinniOrasche v Bundesminister für Wissenschaft, Verkehr und Kunst, ECLI:EU:C:2003:600, Case C-209/03, The Queen, on application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ECLI:EU:C:2005:169, Case C-65/03, Commission v. Belgium, ECLI:EU:C:2004:402, Case C-147/03, Commission v Austria, ECLI:EU:C:2005:427, Case C-76/05, Schwarz and Gootjes–Schwarz v. Finanzamt Bergisch Gladbach, ECLI:EU:C:2005:719, Joined Cases C-11/06 and C-12/06, Rhiannon Morgan v

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3.2.3 Residence Rights The Union citizen enjoys a right to free movement under Article 21 tfeu, the conditions of which have been specified further in Directive 2004/38. Under this Directive, the student has the right to exit the Member State of current residence93 and to enter94 and reside in the host Member State for a period of three months solely on the basis of the production of his passport or identity card.95 For a period of residence exceeding three months, as will be the case for most courses of study, the student must:96 – Be enrolled in a private or public establishment, accredited or financed by the host Member State for the principal purpose of following a course of study,

93 94 95 96

Bezirksregierung Köln and Iris Bucher v Landrat des Kreises Düren, ECLI:EU:C:2007:626, Case C-158/07, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep, ECLI:EU:C:2008:630, Case C-310/08, London Borough of Harrow v Nimco Hassan Ibrahim, Secretary of State for the Home Department, ECLI:EU:C:2010:80, Case C-480/08, ­Maria Teixeira v London Borough of Lambeth, Secretary of State for the Home Department, ECLI:EU:C:2010:83, Case C-73/08, Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, ECLI:EU:C:2010:181, Case C-542/09, Commission v the Netherlands, ECLI:EU:C:2012:346, Case C-75/11, Commission v Austria, ECLI:EU:C:2012:605, Case C-46/12, L.N. v Styrelsen for Videregående Uddannelser og Uddannelsesstøtte, ECLI:EU:C:2013:97, Case C-529/11, Olaitan Ajoke Alarape, Olukayode Azeez Tijani v Secretary of State for the Home Department, ECLI:EU:C:2013:290, Case C-45/12, Office national d’allocations familiales pour travailleurs salariés (onafts) v Radia Hadj Ahmed, ECLI:EU:C:2013:390, Case C-20/12, Giersch a.o. v État du Grand-Duché de Luxembourg, ECLI:EU:C:2013:411, Joined Cases C-523/11 and C-585/11, Laurence Prinz v Region Hannover and Philipp Seeberger v Studentenwerk Heidelberg, ECLI:EU:C:2013:524, Joined Cases C-147/11 and C-148/11, Secretary of State for Work and Pensions v Lucja Czop and Margita Punakova, ECLI:EU:C:2012:538, Case C-220/12, Andreas Ingemar Thiele Meneses v Region Hannover, ECLI:EU:C:2013:683, Case C-275/12, Samantha Elrick v Bezirksregierung Köln, ECLI:EU:C:2013:684, Case C-523/12, Dirextra Alta Formazione srl v Regione Puglia, ECLI:EU:C:2013:831, Case C-359/13, B. Martens v Minister van Onderwijs, Cultuur en Wetenschap, ECLI:EU:C:2015:118, Case C-233/14, Commission v the Netherlands, ECLI:EU:C:2016:396, Case C-115/15, Secretary of State for the Home Department v na, ECLI:EU:C:2016:487, Case C-Case C-238/15, Verruga a.o v Ministre de l’Enseignement supérieur et de la Recherche, ECLI:EU:C:2016:949, Joined Cases C-401/15 to 403/15, Depesme and Kerrou a.o v Ministre de l’Enseignement supérieur et de la Recherche, ECLI:EU:C:2016:955. Article 4(1) Directive 2004/38. Article 5(1) Directive 2004/38. Article 6(1) Directive 2004/38. See Article 7(1)(c) Directive 2004/38.

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– Have comprehensive sickness insurance and sufficient resources so as not to become a burden on the social assistance system of the host Member State. The first criterion is not very controversial in nature,97 although the point has been raised whether it could be used to deny ‘non-genuine students’ a right of residence:98 for example if the student in question never attends classes or does not make ‘acceptable study progress’ as measured by say a minimum amount of ects attained, he or she could conceivably be held not to satisfy this rule.99 The Court, however, seems wary of allowing Member States to inquire into the intent, purpose or reason for exercising free movement rights;100 rather the first condition should perhaps best be seen as a procedural one, allowing a distinction to be made between persons of independent means and students.101 This view can be supported by the ruling in l.n.. In that case, l.n. worked part-time next to his (full-time) studies. He then applied for financial assistance for his studies, but he was refused on the ground that he had not yet attained a right to permanent residence. As regards the fact that l.n. was also economically active next to his studies, Denmark argued, supported by N ­ orway in this regard, that: the intention the applicant in the main proceedings had when he entered Danish territory to follow a course of study precludes him from having the status of ‘worker’ within the meaning of Article 45 tfeu.102 97

No particular problems were identified in the context of the Commission’s evaluation of the implementation of Directive 2004/38: COM(2008) 840 final, Report from the Commission to the European Parliament and the Council on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 98 A.P. Van der Mei, Free Movement of Persons Within the European Community: Cross-Border Access to Public Benefits, (Hart Publishing, 2003), p. 383. 99 See by analogy Article 12(2)(b) of Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, oj [2004] L 375/12. 100 Case C-109/01, Secretary of State for the Home Department v Hacene Akrich, ECLI:EU: C:2003:491, para. 55. 101 As was done by the Court in Case C-209/03, The Queen, on application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ECLI:EU:C:2005:169, para. 44–47. 102 Case C-46/12, L.N. v Styrelsen for Videregående Uddannelser og Uddannelsesstøtte, ECLI:EU:C:2013:97, para. 46.

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The Court reiterated that whether or not of worker status was attained was to be assessed based on objective factors; not on the conduct or intention of the person concerned.103 The Court thus allowed the possibility that Union citizens, and students in particular, could have multiple statuses; the one not affecting or precluding the other. This strongly suggests that Member States may not attribute too much weight to the clause ‘principal purpose’. Finally, as Baumbast makes clear, the free movement rights of Union citizens are derived directly from the Treaties and limitations to such rights constitute the exception.104 This reinforces the call for a lenient interpretation of limiting conditions and emphasises that any attempt at derogation in this regard is subject to the application of the principle of proportionality.105 As such, ‘principal purpose’ should not be grounds for a systematic assessment of whether the student is a ‘genuine student’ or whether he or she pursues other activities next to his studies: rather, in most cases the State would or should be limited to merely verifying whether the eu citizen in question is enrolled in an educational institution. The second criterion is similar to, but should be distinguished from, the requirement to have comprehensive medical insurance and sufficient resources of a person of independent means.106 In particular as regards the sufficient resources requirement, it suffices for students to ‘assure the relevant national authority, by means of a declaration (…) that they have sufficient resources (…) not to become a burden’.107 In contrast, persons of independent means must provide ‘proof’ that they satisfy the condition of sufficient resources and comprehensive medical insurance.108 The reason for requiring Member States to assess this criterion more leniently relates to the nature of the mobile student. In Commission v Italy, the Court upheld the argument by the Commission that had submitted that the students’ stay in the host State is likely to be temporary and this category is moreover likely to easily be able to supplement

103 Case C-46/12, L.N., ECLI:EU:C:2013:97, para. 36, 46. 104 Case C-413/99, Baumbast and R v Secretary of State for the Home Department, ECLI:EU: C:2002:493, para. 81ff, in particular para. 91. 105 Ibid, para. 91. 106 Article 7(1)(b) Directive 2004/38. 107 The truthfulness of this declaration is moreover solely assessed with reference to the time that it was made: the fact that a student may seek social assistance in the future does not have the effect of retroactively invalidating this statement. See Case C-184/99, Rudy ­Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECLI:EU:C:2001:458, para. 45. 108 Article 8(3), second indent Directive 2004/38.

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their resources through (part-time) work.109 In addition, while Member States are allowed to make reference to the level of resources needed in order for an individual to qualify for a minimum subsistence benefit, when determining whether the eu citizen has access to ‘sufficient resources’, they are at the same time expressly prohibited from specifying a hard minimum in this regard and must have regard to the personal circumstances.110 Finally, the ‘sufficient resources’ may be in any form (e.g. periodic payment or accumulated capital) and need not necessarily be the student’s own resources (e.g. monthly payment by the parents of the student or some third person must also be accepted).111 In any case, attempts by the Member State to deny the student a right of residence on the basis of non-satisfaction of the second criterion are also subject to the principle of proportionality: the student in question must become an unreasonable burden. Small deviations (e.g. particular medical care not being covered by healthcare insurance) are thus not grounds for expulsion.112 Moreover, recourse to the social assistance system of the host Member State (such as the receipt of student grants, but also e.g. the receipt of a rent or housing allowance as a student) is not grounds for automatic expulsion. Rather, as the Court held in Grzelczyk, Member States are required to show a certain degree of financial solidarity with the nationals of other Member States.113 As such, temporary financing problems are to be forgiven by the host Member State.114 It is not clear, however, once social assistance is granted, at what point the student becomes an unreasonable burden. The Commission has suggested that Member States must have regard to, inter alia, the duration of the grant (past receipt, future outlook), the personal, family and economic circumstances of the individual (including his degree of attachment to and integration in the society of the host Member State) and the (total) amount of the grant.115 The 109 Case C-424/98, Commission v Italy, ECLI:EU:C:2000:287, para. 40 jo. 45. It followed, in that case, that the Italian legislation which required a specific amount and for students to submit a guarantee of financial resources constituted a violation of eu law. 110 Article 8(4) Directive 2004/38. 111 Case C-408/03, Commission v Belgium, ECLI:EU:C:2006:192, para. 40–50 and COM(2009) 313 final on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States of 2 July 2009, p. 8. 112 Case C-413/99, Baumbast, ECLI:EU:C:2002:493, para. 89–93. 113 Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458, para. 43–44. 114 Ibid. 115 COM(2009) 313 final on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States of 2 July 2009, p. 9. See also recital 16 of Directive 2004/38.

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Court has meanwhile clarified the matter and has held that the Member State must carry out, in the light of the principle of proportionality, ‘an overall assessment of the specific burden which granting [a] benefit would place on the social assistance system as a whole by reference to the personal circumstances characterising the individual situation of the person concerned’.116 Overall, therefore, it is clear that the student enjoys a relatively strong right of residence in the host State on the basis of eu law. The general tenor of the case law of the Court and the Directive is a presumption in favour of free movement and residence.117 Member States are to practice restraint when assessing whether the criteria for the acquisition of a right of residence under Directive 2004/38 have been fulfilled and are to have due consideration to the principle of proportionality. The exact conditions under which a student can be denied a right of residence thus remain vague and context-bound. The migrant eu student is thus relatively secure in his rights of residence under eu law and expulsion or refusal of residence as a matter of law is generally very unlikely to occur.118 The burden of proof is very much on the Member State seeking to deny residence rights and the standard employed by the Court in this regard is high. Special Residence Situations, Multiple Statuses and Their Relationship with Equal Treatment 3.2.4.1 Family Members A migratory eu student has the right to bring his family members as defined in Article 2(2) of Directive 2004/38 with him to join him in the host Member State. This includes his spouse,119 registered partner120 and/or any descendants121 of 3.2.4

116 Case C-140/12, Pensionsversicherungsanstalt v Peter Brey, ECLI:EU:C:2013:565, para. 77. See for further analysis of this ruling H. Verschueren, ‘Free Movement or Benefit Tourism: The Unreasonable Burden of Brey’, 16(2) European Journal of Migration and Law (2014) 147. 117 Case C-408/03, Commission v Belgium, ECLI:EU:C:2006:192, para. 40. Although, as seen, the cases of Dano and Alimanovic seem to halt that trend somewhat, see also: D. Thym, ‘When Union citizens turn into illegal migrants: the Dano case’, 40(2) European Law Review (2015) 249. 118 That is not to say that prohibitive living costs in the host State may not, in practice, cast a long shadow and deter the student from exercising his free movement rights in the first place. This, however, should be seen as a matter distinct from the issue regarding the legal conditions of residence: as seen, students are solely required to declare that they have sufficient resources. 119 Article 2(2)(a) Directive 2004/38. 120 Article 2(2)(b) Directive 2004/38. 121 Under the age of 21 or dependent on the parents: Article 2(2)(c) Directive 2004/38.

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the student or his spouse. In contrast to, for example, the worker or the person of independent means, the student is not eligible for automatic reunification with his dependent family members in the ascending line (rather these count as individuals whose entry must merely be facilitated).122 For entry and residence in the first three months, only a valid passport or identity card is required for eu national family members.123 Where the family member in question is a third-country national, he or she needs a passport and, where necessary, a visa.124 For residence exceeding three months, the status of the eu student is determinative: where he or she has sufficient resources for the family as a whole, they shall be granted residence.125 3.2.4.2 Permanent Residence After five years of continuous legal residence in the host State, eu citizens (the student and his eu family members) as well as any tcn family members gain the right to permanent residence. From this point onwards residence is no longer subject to the conditions specified by Article 7 of Directive 2004/38. It should be noted that only periods of residence spent in the host State under the conditions of the Directive itself, or its predecessors that it was designed to replace, will count towards the five years’ residence.126 3.2.4.3 Multiple Status under Directive 2004/38: The Student-Worker127 Currently, there is a lack of clarity with regard to the eu student possessing multiple residence statuses under Directive 2004/38. The above-mentioned case of l.n. confirms that the student resident on the basis of Article 7(1)(c) of Directive 2004/38 (as determined by the authorities in that case) is not precluded from (also) obtaining the status of ‘worker’ under eu law,128 thereby becoming a ‘student-worker’ (see below for the consequences for equal ­treatment). The

122 Article 7(4) Directive 2004/38 jo. 2(2)(d) Directive 2004/38. In addition, Article 3(2) of ­Directive 2004/38 provide that the entry and residence of other dependent family members or the partner with whom the eu citizen has a durable relationship, duly attested, will also be facilitated. 123 Article 5(1) jo. 6(1) Directive 2004/38. 124 Article 5(1) jo. 5(2) jo. 6(2) Directive 2004/38. 125 Article 7(1)(d) (for eu citizen family members) and Article 7(2) (for tcn family members). 126 Joined Cases C-424/10 and C-425/10, Tomasz Ziolkowski, Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja v Land Berlin, ECLI:EU:C:2011:866, para. 31–50. 127 As before, the same reasoning will apply, mutatis mutandis, to the student who is a selfemployed person. 128 Case C-46/12, L.N., ECLI:EU:C:2013:97, para. 36.

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definition of what constitutes a ‘student-worker’ was already addressed in detail in Section 3.2.1.2 and as such will only be repeated briefly here. A worker is someone who ‘for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration’.129 As suggested above, the main element of importance for the assessment of whether someone qualifies as a worker is the number of hours worked. Case law suggests that where an individual works for about 10 hours a week, he or she is presumed to be a worker within the meaning of Article 45 tfeu.130 At the same time, this is not a hard limit. As seen, in Genc, the Court suggested that 5,5 hours per week could suffice, provided, based on an overall assessment of the employment relationship, the person in question could be considered part of the normal workforce. Similary, the Court did not exclude that a student who had only worked four days during holidays could be considered a worker.131 In l.n. the Court confirmed (as will be discussed below) that if indeed l.n. could be held to be a worker on the facts, he or she would have the right to equal treatment with host Member State nationals as regards maintenance aid in the form of student grants. Therefore, for the purposes of equal treatment, the ‘most favourable regime’ approach is used: an eu student would only be eligible for student grants under Directive 2004/38 after having obtained permanent residence. A (student-) worker, in contrast, has immediate access to such grants under the same conditions as host Member State nationals.132 The fact that the ‘work’ is subordinate to the main purpose (studying) does not bar the individual from claiming equal treatment as a worker. However, the Court failed to clarify the residence status in that case: where a student pursues full-time studies while in part-time employment, does then the regime of Article 7(1)(c) apply or Article 7(1)(a) as regards residence? One may perhaps pose the question why this should matter: either way the student has a right to residence. Nevertheless, the conditions for residence are different (a worker need not have sufficient resources133) and the worker enjoys greater family reunification rights as well as a degree of protection (in terms of continued 129 Case 66/85, Lawrie-Blum, ECLI:EU:C:1986:284 para. 17. 130 Case C-444/93, Ursula Megner and Hildegard Scheffel v Innungskrankenkasse Vorderpfalz, now Innungskrankenkasse Rheinhessen-Pfalz, ECLI:EU:C:1995:442, para. 18–20. See further the Opinion of A-G Geelhoed on Case C-413/03, Ninni-Orasche, ECLI:EU:C:2003:117, para. 33. 131 Case C-432/14, O v Bio Philippe Auguste sarl, ECLI:EU:C:2015:643, para. 23–26. 132 See Article 24(2) of Directive 2004/38. 133 See Article 7(1)(a) jo. 8(3) Directive 2004/38.

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residence) in case of unemployment, sickness etc.134 Moreover, as will be seen below, the fact that the most favourable regime approach is applied for equal treatment situations can lead to practical problems, as Member States may tie equal treatment to the dominant residence status (as was done in l.n.), leading in some cases to a denial of rights. As such, it is suggested here that issues of residence are best resolved in a similar manner to the equal treatment situation by applying the most favourable regime (from the perspective of the individual). This is most consistent with the ‘fundamental principle’135 of the right of free movement, to which limitations must be considered the exception. Having thus established the conditions under which an eu student can exercise his or her free movement rights, including the conditions under which he or she is (and his or her family members are) lawfully resident under eu law in the host State, we can now turn to the principle of equal treatment. Equal Treatment Rights and beyond: Access to Education and Study Facilitating Benefits With a view to categorising the extensive case law of the Court in this regard, two distinct legal regimes can be discerned at the summa divisio level: cases involving a claim of equal treatment by an eu citizen to the nationals of the host Member State as regards access to education and cases involving equal treatment as regards the conditions under which the rights of free movement of students are exercised.136 Hereafter, the two legal regimes will be referred to as the ‘access’ regime and the regime applying to ‘study facilitating benefits’ respectively. This division has its origins in a set of cases decided in the 1980s and involved the scope ratione materiae of what is now Article 18 tfeu. In the case of G ­ ravier,137 a French national sought to rely on the principle of non-­ discrimination on grounds of nationality in what was then Article 7 eec to challenge the requirement to pay the minerval (an enrolment fee) for the ­purposes of attending a course of strip cartoon art at a vocational institute established in Belgium. In its judgment, the Court held that access to vocational training138 was connected with eu law and thus fell within the scope of

3.2.5

134 See Article 7(3) and 14(4) of Directive 2004/38. 135 Case C-408/03, Commission v Belgium, ECLI:EU:C:2006:192, para. 40. 136 This distinction was already noted at an early stage by A-G Slynn in his Opinion in Case C-42/87, Commission v Belgium (higher education financing), ECLI:EU:C:1988:341. See also A-G Sharpston in her Opinion in Case C-73/08, Bressol, ECLI:EU:C:2009:396, para. 80ff. 137 Case 293/83, Gravier, ECLI:EU:C:1985:69. 138 Strip cartoon art was held to constitute such training, see ibid, para. 27–31. See below for a more extensive discussion of this concept.

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Article 7 eec due to its significance in promoting the (future) free movement of persons and in the light of the progressive establishment of a community vocational policy.139 It followed that a provision of Belgian law which exempted Belgian nationals140 from having to pay the minerval constituted direct discrimination on grounds of nationality in breach of that article.141 In contrast, in Lair142 and Brown,143 in which the applicants sought to invoke Article 7 eec to claim equal treatment as regards assistance for students offered in the form of student grants and loans under schemes operated by Germany and Scotland (uk) respectively, the Court held that the conditions under which such grants were provided were considered to be a matter of education and social policy. As these were areas where competences primarily belonged to the Member States rather than the European Economic Community, it followed that such grants fell outside the scope of Article 7 eec.144 This distinction was maintained for a period of 17 years until the seminal case of Bidar.145 That case concerned a French national who sought to rely on then Article 12 tec (now Article 18 tfeu) to inter alia challenge the requirement of needing to be ‘settled’ in the uk (a status which for foreign students/ pupils was practically impossible to obtain) in order to receive financial support for studies. The Court explicitly reconsidered its earlier case law in the light of the introduction of eu citizenship and the new (admittedly limited) ec competences in the area of education: student grants and the like were now held to fall within the scope of then Article 12 tec.146 While the two regimes were thus put on the same footing, it will nevertheless be shown below that the legacy of the original distinction continues to have consequences today: if a measure is considered to affect (conditions 139 Ibid, para. 19–25. 140 As well as other eec nationals in certain circumstances, see paragraph 3 and 4 of Case 293/83, Gravier, ECLI:EU:C:1985:69. 141 Ibid, para. 14–15ff. Gravier confirmed the earlier ruling of the Court in Case 152/82, Forcheri, ECLI:EU:C:1983:205, but can nevertheless be considered more significant as a landmark case as Gravier concerned a student without any ties to an economically active eu national, thereby challenging the then dominating market citizen paradigm. 142 Case 39/86, Lair, ECLI:EU:C:1988:322. 143 Case 197/86, Brown, ECLI:EU:C:1988:323. 144 See Case 39/86, Lair, ECLI:EU:C:1988:322, para. 15 and Case 197/86, Brown, ECLI:EU:C:1988:323, para. 18. 145 Case C-209/03, Bidar, ECLI:EU:C:2005:169. This case followed the earlier case of G ­ rzelczyk in which the Court already seemed to move away from its orthodoxy that ­students could not claim social assistance in the host Member State: Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458, para. 34ff. 146 Case C-209/03, Bidar, ECLI:EU:C:2005:169, para. 30–42.

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of) ‘access to education’ of migrant eu citizens to a greater extent than host ­Member State nationals, the Court will subject it to rigorous scrutiny: the presumption is strongly in favour of equal treatment in order to protect access as the ‘very essence of the principle of freedom of movement for students’.147 In contrast, where it concerns measures relating to the conditions under which free movement of students are exercised (in particular as regards ‘study facilitating benefits’), the presumption is less strong: by and large the Court will allow Member States greater discretion in circumscribing the beneficiaries of such benefits by way of imposing a genuine link indicator such as, for example, a period of residence in the host State. What justifies such a distinction between ‘access’ and ‘exercise’? Consider, for example, that discriminatory tuition and enrolment fees are considered by the Court to affect access to education, but measures limiting eligibility to maintenance aid for study purposes are rather study facilitating benefits.148 Both situations, however, are a form of financial discrimination and affect the capacity of the student to finance his study abroad period. It is furthermore not given that discriminatory tuition fees impact on the free movement of students to a greater extent than the denial of study facilitating benefits. Nor is it clear, from the point of view of the Member State, that extending the often significant tuition fee subsidy (the difference between statutory tuition fees and the actual costs of providing education to a student in higher education) to migrant eu students costs the public purse less than providing migrant eu students with direct financial support in the form of student grants.149 The practical difficulty in drawing the line between access and exercise, as well as the apparent lack of normative foundation for doing so, has led some commentators to deny the usefulness and legitimacy of the distinction altogether.150 The distinction in the case law of the Court may again, it is submitted, find a philosophical foundation in the cosmopolitan structure as outlined by Kant. When discussing the cosmopolitan right to hospitality, Kant made a ­distinction 147 Case C-147/03, Commission v Austria (diploma requirements), ECLI:EU:C:2005:427, para. 70. 148 See below. 149 See also: Eurydice, Key Data on Education in Europe (eacea P9 Eurydice, 2012), pp. 87–101. 150 See G. Davies, ‘Higher Education, Equal Access and Residence Conditions: Does eu Law Allow Member States to Charge Higher Fees To Students Not Previously Resident?’ 12(3) Maastricht Journal for eu and Comparative Law (2005) 227, pp. 229–235, and more generally: J. Snell, ‘The notion of market access: a concept or slogan?’ 47 Common Market Law Review (2010) 437, pp. 445–446.

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between the Besuchsrecht and the Gastrecht: only the former was covered by the ius cosmopoliticum. It is the right of a ‘visitor’ to establish first contact and to lay the basis for further relations: its essence (in the eu context) is thus the potentiality or possibility of relations between the peoples of Europe. This ideal is clearly reflected in the preambular notion in which Member States underline their commitment in the context of the eu to ‘lay the foundations of an ever closer Union among the peoples of Europe’. The access regime as developed is thus meant to enforce and safeguard that commitment: Member States are required to be fundamentally ‘open’ and ‘accept’ new eu visitors, allowing them to reside there and allowing them to attempt to integrate into society by acquiring, for example, the status of student or worker. The regime thus catches and prohibits (discriminatory) obstacles ‘at the gate’ which hamper such attempts (e.g. expulsion measures, quotas limiting the enrolment of migrant eu students or diploma requirements hampering the take up of employment of foreign workers). It stands to reason that such measures, impacting on the very core of the (purpose of) free movement and perhaps of the eu more generally, are treated with suspicion and are subject to a strict standard of justification and scrutiny. In contrast, the right of a guest is a privileged position and is thus different in nature: it is not an innate right, but rather a form of quasi-membership of the host society. It stands to reason that societies are to a degree free to determine who their members are and to whom to extend the benefits of such membership in the spirit of solidarity (the essence of sovereignty).151 With the advance of the European integration process, the conditions for recognitionas-(quasi-)member have become to an extent institutionalised through the Treaty provisions, secondary legislation and the judgments of the Court. The point of departure is again eu citizenship as the basic common bond between the European peoples. This forms the foundation for quasi-membership / recognition-as-member of the society of one of the Member States of the eu, which can come about in two ways: ‘contractually’ and through progressively forming a bond with the host society.152 Contractual recognition applies to the 151 Kant refers to this as the establishment of a ‘special, charitable contract’ between the would-be ‘guest’ and the ‘household’, see Kant, ‘Toward Perpetual Peace: A Philosophical Sketch’, tr. D. Colclasure in P. Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics Peace and History, (Yale University Press, 2006), p. 82. 152 This distinction is also, arguably, reflected to a degree in Perpetual Peace, where Kant emphasises long-term contact and interaction, and within that context in particular the establishment of commercial relations, as the follow-up to the initial (right to) visit, see ibid p. 82ff.

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original participants in the common market: economically active migrant eu nationals enjoy quasi membership of the host society on the basis of their contribution to the host society (a quid pro quo relationship). This approach is reflected in the Commission v the Netherlands (export of student grants). The case was brought by the Commission to challenge the imposition of the requirement for Union workers (active in the Netherlands) and their family members to have resided in the Netherlands at least three out of the six years prior to the application for portable student grants and/or loans. The Court held that: As regards migrant workers and frontier workers, the fact that they have participated in the employment market of a Member State establishes, in principle, a sufficient link of integration with the society of that Member State, allowing them to benefit from the principle of equal treatment (…) as regards social advantages.153 (emphasis by author) As such, the 3-out-of-6 rule was held to be contrary to eu law where applied to Union workers and their family members as it disregarded that link of integration. The alternative approach, recognition-through-progressive-integration, relies more heavily on the eu citizenship origins and holds that as economically inactive eu nationals form a degree of attachment (during which they must avoid to be a burden on the host society) they are entitled to be recognised as a member and thus to be treated with solidarity by that society.154 This approach is apparent in Bidar, in which the Court was called upon to assess the legitimacy of a durational residence requirement applied to uk nationals and migrant eu students alike for the purpose of receiving maintenance aid for study purposes: (…) Member States must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other Member States (…), [although] it is permissible for a Member State to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become 153 Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:34, para. 65. 154 This obligation of solidarity towards quasi-members, once it has been established prima facie, is extensive as emphasised by the Court in Case C-140/12, Brey, ECLI:EU:C:2013:565, para. 72 – only where the social assistance granted to the eu citizen(s) would threaten the social assistance system can Member States take action.

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an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State. (…) In the case of assistance covering the maintenance costs of students, it is thus legitimate for a Member State to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State.155 (emphasis by author) The Court then went on to hold that the existence of such a degree of integration may be established by a finding that the student in question had ­continuously resided in the host Member State for a period of time.156 More recently, the Court has insisted on a broader range of ‘indicators’ to be taken into account in this regard: family relations (e.g. being married to a host Member State national;157 or being dependent on individuals who have a connection with the host State158), past periods of employment,159 host Member State language skills,160 and/or past periods of residence (non-recent).161 It should be noted, however, that Member States remain relatively162 free in determining the ‘intensity’ or level of integration required (the degree of integration) for access to a particular benefit.163 Therefore, whereas the Member State

155 156 157 158

Case C-209/03, Bidar, ECLI:EU:C:2005:169, para. 56–57. Ibid, para. 59. Case C-367/11, Déborah Prete v Office national de l’emploi, ECLI:EU:C:2012:668, para. 48. Case C-503/09, Lucy Stewart v Secretary of State for Work and Pensions, ECLI:EU:C:2011:500, para. 100 and Case C-20/12, Giersch a.o. v État du Grand-Duché de Luxembourg, ECLI:EU:C:2013:411, para. 78ff. 159 As seen in Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:346, para. 65–66 participation in the labour market establishes a (sufficient) link of integration with the host state. Moreover, past employment was also considered relevant in Case C-499/06, Halina Nerkowska v Zakład Ubezpieczeń Społecznych Oddział w Koszalinie, ECLI:EU:C:2008:300, para. 42–43 and Case C-503/09, Stewart, ECLI:EU:C:2011:500, para. 100. Note, past employment relevant for assessing a genuine link with the host State should be distinguished from the position of ‘ex-worker’ and the rights attached to that status in some cases (including e.g. under some conditions equal treatment as regards student grants). 160 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, ECLI:EU:C:2013:524, para. 38. 161 Case C-499/06, Nerkowska, ECLI:EU:C:2008:300, para. 42–43 and Case C-503/09, Stewart, ECLI:EU:C:2011:500, para. 101. 162 See however Case C-75/11, Commission v Austria (student travel concessions), ECLI:EU:C:2012:605, para. 62–64. 163 Case C-103/08, Arthur Gottwald v Bezirkshauptmannschaft Bregenz, ECLI:EU:C:2009:597, para. 34.

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must ­accept and assess a wide range of evidence ‘proving’ a genuine link, the strength of the link required is still mostly up to the Member States. As such, the access regime regulates and protects the potentiality of integration and/or contact, whereas the regime applying to the conditions under the free movement rights are exercised regulates the consequences of the forming of a bond (contractually or through integration) between the eu citizen and the host State. The right(s) of the ‘visitor’ are innate to all eu citizens without further qualification, the right of a guest subject to the individual in question having further ‘qualifications’ as for example a worker or having demonstrated a genuine link with the host State in another manner. Since the ‘access’ rights constitute the essence of the free movement rights of eu citizens, it is only fitting that any incursions on these rights by Member States are treated harshly. In contrast, where it concerns the regime applying to the conditions under which the free movement rights are exercised, more discretion should properly be left to Member States to circumscribe the membership of the host society and thus the conditions under which solidarity is extended to foreign eu nationals, at least where it concerns the economically inactive. A closer look at the two regimes will now be had in the context of the mobility of eu students. 3.2.6 Access to Education The main rule in this regard is that any eu citizen exercising his or her free movement rights as enshrined in Article 21 tfeu can rely on Article 18 tfeu to claim equal treatment with host Member State nationals concerning the conditions of access to education. As such, the scope ratione personae in this context is clear cut – the Union citizen-student has an innate right to equal treatment in this regard without needing to prove, for example, a genuine link or something in that order.164 The scope ratione materiae is somewhat more contentious in nature and will be discussed below. Finally, presaging some of the discussion below, it should be mentioned that, in line with what was argued above, the nondiscrimination principle in this ‘access regime’ is observed strictly and ­attempts by Member States in justifying their restrictions in this regard are normally treated harshly and rejected. 3.2.6.1 Scope Ratione Materiae i: What Type of Education? It is submitted here that the scope of Article 18 tfeu extends to all forms of state organised, state financed or state supported forms of education, including primary, secondary and tertiary education. It is true that the case law prior 164 See for a current restatement: Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 30–32.

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to the Treaty of Maastricht focussed on the concept of ‘vocational training’, which, while broadly defined,165 required that the education included an element of preparation for a profession or occupation in order for eu law to apply.166 It is also true that the Court still refers at times to the pre-Maastricht case law. For example, in Bressol,167 in finding that Article 18 tfeu applied to the facts of that case (quotas imposed by French Community of Belgium limiting study places for non-residents), the Court referred to the fact that that higher education and university courses are considered vocational training, citing as an authority Commission v Austria (diploma requirements), which in turn refers back to the earlier cases of Gravier and Blaizot.168 Nonetheless, following the ruling in Bidar, it cannot be seriously doubted that Article 18 tfeu extends to all types of education, market nexus or not. It will be recalled that in that case the Court overturned its ruling in Lair and Brown in which it had held that maintenance aid for study purposes, as a matter of educational and social policy, were competences belonging primarily to the Member States. The Court reasoned that, with the introduction of eu citizenship and the introduction of (limited) eu competences covering education more generally,169 the scope of Article 18 tfeu had been extended to cover also matters of study financing. By analogy, one can argue that these ­developments also affect the scope of Article 18 tfeu as the types of education covered, moving it from applying to vocational training only to applying to education in a general sense.170 There is further support for this contention in other paragraphs of Bressol, where the Court refers, in general, to the obligation of the Member States to have due regard to Union law and in particular the free 165 Case 293/83, Gravier, ECLI:EU:C:1985:69, para. 30. 166 See Case 24/86, Vincent Blaizot v University of Liège and others, ECLI:EU:C:1988:43, para. 15–21 and Case 263/86, Belgian State v René Humbel and Marie-Thérèse Edel, ECLI:EU:C:1988:451, para. 8–13, 22–25. 167 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 32. 168 Case C-147/03, Commission v Austria (diploma requirements), ECLI:EU:C:2005:427, para. 32–33. 169 See current Articles 165 and 166 tfeu as well as Article 9 tfeu. 170 It should be noted that eu workers and their family members, on the basis of Article 7(2) and 10 of Regulation 492/2011, in any case enjoy a right of equal treatment as regards all forms of education: see Case 263/86, Humbel, ECLI:EU:C:1988:451, para. 24 combined with Case C-308/89, Carmina di Leo v Land Berlin, ECLI:EU:C:1990:400, para. 15. This also applies, mutatis mutandis, to self-employed individuals and their family members following Case C-337/97, C.P.M Meeusen v Hoofddirectie van de Informatie Beheer Groep, ECLI:EU:C:1999:284, para. 27–29. See further: A-P van der Mei, Free movement of persons in the European Community–Cross-Border Access to Public Benefits, (Hart Publishing, 2003), p. 349, 375.

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movement provisions and the principle of non-discrimination on grounds of nationality, when organising their education systems and vocational training171 (the obligation thus applying to both separately).172 3.2.6.2 Scope ratione materiae ii: Conditions of Access to Education The second aspect to be considered is the breadth of the principle of equal treatment in terms of the measures enacted by Member States it catches. In the first place, there are the financial restrictions. The cases of Gravier and Forcheri confirm that the imposition of higher tuition fees for migrant eu nationals than those that apply to host Member State nationals constitutes a violation of Article 18 tfeu.173 Moreover, creative Member States seeking to introduce a practice whereby discriminatory tuition fees at the ‘demand side’ (student side) are removed but are nevertheless enforced at the supply side (the educational establishment) are equally in breach of that Article. In response to Gravier, Belgium equalised the tuition fees but at the same time adopted a practice in which it relegated most categories of foreign students to the category of ‘non-funded student’ when a certain extremely limited threshold was reached.174 This effectively forced educational establishments to exclude such foreign students or risk being underfunded.175 The Court held that this construction, in essence, had the same exclusionary effect as the original discriminatory tuition fees assessed in Gravier and found a violation of what is now Article 18 tfeu.176 In Brown a final variant was considered by the Court: in Scotland all students were required to pay a tuition fee but the devolved authority (selectively) reimbursed (in full or in part) that fee through its student grant system. The Court ruled that such contributions towards the payment of tuition fees did not constitute maintenance aid (at the time still excluded from 171 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 28–29. 172 See further H. van Eijken, ‘Zijn er nog grenzen aan gelijkheid? – De spanning tussen gelijke behandeling van Unieburgers versus de bevoegdheidsverdeling tussen de Unie en lidstaten’, 16(6) Nederlands Tijdschrift voor Europees Recht (2010) 181, who discusses the tension between the principle of equal treatment and the (remaining) discretion of the Member States in organising their (higher) education systems. 173 Case 293/83, Gravier, ECLI:EU:C:1985:69, para. 26 and Case 152/82, Forcheri, ECLI:EU: C:1983:205, para. 17–18. 174 Funding would not be provided for those foreign students in excess of 2% of the number of Belgian students who were included for the purposes of determining the funding of the educational establishment in the previous academic year: Case 42/87, Commission v Belgium (higher education financing), ECLI:EU:C:1988:454, para. 3. 175 Ibid, para. 8. 176 Ibid, para. 8–9.

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Article 18 tfeu) and thus had to be provided to migrant eu nationals under conditions that did not discriminate on grounds of nationality.177 But the concept of ‘conditions of access’ goes further than this: it also ­catches administrative restrictions. In Commission v Austria (diploma requirements), Austria had introduced a condition for enrolment tied to the secondary education diploma qualifying the student for university education. In order to gain access to a course of study offered at a university established in Austria, the student had to show that he or she fulfilled any special admission criteria for the same course of study in the Member State in which he or she obtained his or her secondary education diploma. It followed, for example, that German nationals who did not manage to get a place to study medicine in Germany due to the operation of the numerus clausus were also barred from studying medicine in Austria. As such, Austria sought to rely on a form of the principle of mutual recognition in the context of recognition of diplomas for academic purposes, a policy area which moreover fell outside the scope of the Treaties (or so Austria submitted). The Court nevertheless held this to constitute an ‘access condition’ which could be examined for compatibility with Article 18 tfeu.178 Finally, in the case of Bressol, the French Community of Belgium sought to limit the number of places available of non-resident students for a set of nine (para)medical and veterinary courses, in effect seeking to reserve study places for the domestic population. These quotas were also considered for compatibility with Article 18 tfeu.179 Overall, therefore, the Court seems to adhere to a broad concept of ‘conditions of access’ that will be considered for compatibility with eu law. As argued above, the regime militates against any measure applying ‘at the gate’. Here, any measure that hampers the enrolment into a course of study or otherwise impedes acquisition of student status will be caught (and, as will be seen, be subjected to rigorous scrutiny by the Court).180 As such, few measures will escape its grasp: in fact it is interesting to note that the denial of residence in itself is also a measure that may hamper access in this regard and may thus be assessed for compatibility with Article 18 tfeu. As the Court held in Raulin: 177 Case 197/86, Brown, ECLI:EU:C:1988:323, para 15–17. See also Case C-357/89, V.J.M. Raulin v Minister van Onderwijs en Wetenschappen, ECLI:EU:C:1992:87, para. 34. 178 Case C-147/03, Commission v Austria (diploma requirements), ECLI:EU:C:2005:427, para. 31–35. 179 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 28ff. 180 See also Case C-357/89, Raulin, ECLI:EU:C:1992:87, para. 34: ‘right to equality of ­treatment regarding the conditions of access to vocational training applies (…) [to] any measure that may prevent the exercise of that right’.

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It is clear that a student admitted to a course of vocational training might be unable to attend the course if he did not have a right of residence in the Member State where the course takes place. It follows that the principle of non-discrimination with regard to conditions of access to vocational training deriving from Articles 7 and 128 of the eec Treaty implies that a national of a Member State who has been admitted to a vocational training course in another Member State enjoys, in this respect, a right of residence for the duration of the course’.181 This reinforces the point made above: eu nationals seeking to study in another Member State enjoy a strong legal position in terms of residence and there are few situations in which the Member State would be justified denying them a right to reside.182 3.2.6.3 Equal Treatment and the Scope for Derogations As a fourth and final point, a few words on the attempts of the Member States seeking to justify derogations from the principle of equal treatment as regards the conditions of access to education are called for. Looking at the relevant cases,183 it seems fair to conclude that the Court of Justice seems to take a very dim view of Member States’ attempts to derogate from or justify their breach of equal treatment where it concerns access to education. As seen above, the Court has underlined that the opportunity of eu students to access higher education in other Member States constitutes the very essence of the free movement of students in the European Union.184 Limitations thereto can only be accepted exceptionally.185 This is further supported by the fact that, apart from in the specific circumstances of the Bressol case, the Court has never upheld 181 Case C-357/89, Raulin, ECLI:EU:C:1992:87, para. 34. See also Case C-295/90, European Parliament v Council of the European Communities, ECLI:EU:C:1992:294, para. 15. 182 See Case C-357/89, Raulin, ECLI:EU:C:1992:87, para. 36, 37, 39 for some limitations that a Member State can impose (e.g. sufficient resources and the like) which correspond to those imposed by Directive 2004/38. Nevertheless, the presumption remains very much in favour of residence. 183 Case 152/82, Forcheri, ECLI:EU:C:1983:205, Case 293/83, Gravier, ECLI:EU:C:1985:69, Case 24/86, Blaizot, ECLI:EU:C:1988:43, Case 42/87, Commission v Belgium (higher e­ ducation financing), ECLI:EU:C:1988:454, Case 263/86, Humbel, ECLI:EU:C:1988:451, Case C-65/03, Commission v. Belgium (diploma requirements), ECLI:EU:C:2004:402, Case C-147/03, Commission v Austria (diploma requirements), ECLI:EU:C:2005:427 and Case C-73/08, Bressol, ECLI:EU:C:2010:181. 184 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 79. 185 Ibid.

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any of the justifications relied upon by the Member States seeking to restrict the access of migrant eu nationals. This hostility goes in hand in hand with the fact that Member States do not seem overly concerned about putting forward serious attempts at justification186 and often lack evidence to substantiate their disparate claims.187 This is in particular illustrated by Commission v Austria (diploma requirements) in which Austria only presented some rough estimates for specific courses of medical studies in defence of its generally applicable diploma requirement meant to reduce acces of foreign students.188 The strict approach of the Court was also noticeable in Bressol. Belgium sought to rely, in its defence of quotas allocating places on the basis of whether the individual fulfilled certain residence requirements, on the necessity of the measure to combat the pressure on the educational budgets caused by the influx of foreign students, the deterioration of the quality of the higher education system as result of overcrowding, and the threat posed to the maintenance of a high quality healthcare system. The Court, in the end, summarily rejected the financing justification as unfounded,189 raising the question whether such concerns even constituted a legitimate aim capable of justifying an infringement where it concerns access to education.190 Instead, the Court focussed on the arguments relating to the maintenance of a high quality healthcare system.191 Belgium submitted that non-resident students crowding out resident students in the (para)medical courses offered by the educational institutes was likely to lead to a shortage of healthcare professionals in the future (implicitly arguing that resident students were more likely to stay and take up employment in the French Community afterwards). 186 Consider for example Belgium which until Bressol had failed to submit any justifications for consideration to the Court: See Case 293/83, Gravier, ECLI:EU:C:1985:69; Case 42/87, Commission v Belgium (higher education financing), ECLI:EU:C:1988:454, para. 6, Case C-47/93, Commission v Belgium (Gravier follow-up), ECLI:EU:C:1994:181, para. 9, and Case C-65/03, Commission v Belgium (diploma recognition), ECLI:EU:C:2004:402, para. 30. 187 This seems to be a recurring issue before the Court: N. Nic Shuibhne, ‘Annotation of Schwarz, Commission v Germany and Morgan’, 45(3) Common Market Law Review (2008) 771, pp. 781–786. See more extensively, N. Nic Shuibhne and M. Maci, ‘Proving Public Interest: The Growing Impact of Evidence in Free Movement Case Law’, 50(4) Common Market Law Review (2013) 965. 188 Case C-147/03, Commission v Austria (diploma requirements), ECLI:EU:C:2005:427, para. 61–65 and in particular para. 63. 189 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 49–51. 190 See also the Opinion of A-G Sharpston in Case C-73/08, Bressol, ECLI:EU:C:2009:396, para. 87–99. 191 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 52–54, 62ff.

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The Court accepted that these concerns could not a priori be ruled out but warned that the link between the maintenance of a high quality health care system and the education of future healthcare professionals was uncertain and somewhat hypothetical in nature.192 It then proceeded to lay out an extensive set of evidentiary requirements for the establishment as to whether the alleged risk to the public health system was in fact genuine; the national authorities were to furnish the referring court with a comprehensive analysis as to a­ vailable study places, (future) need for healthcare professionals and the impact of possible correcting factors (e.g. movement of health professionals to Belgium should a shortage arise as well as the probability of graduates in Belgium nevertheless leaving for jobs abroad).193 Moreover, even where such genuine risks were established, the Court admonished the national court to carefully examine compliance with the principle of proportionality, bearing in mind in the importance of the principle of access to higher education as the essence of the free movement of students, and that any incursion thereupon should remain strictly limited.194 As such, whatever the outcome, a sufficiently wide access to higher education by migrant eu students had to be safeguarded.195 It seems, therefore, that Bressol rather confirms the rule of respect for equal treatment as regards the conditions of access to education. Only in very exceptional circumstances, probably limited to the specific factual situation of the French Community of Belgium and possibly Austria,196 and limited primarily to (para)medical studies, will a restriction of that principle be accepted. Consider further that the evidentiary barrier is high: the Belgian Constitutional Court in the end only accepted the lawfulness of the quota for three courses, holding that for the other studies Belgium had failed to adduce sufficient evidence.197 The scope for justification of restrictions in this regard is thus very narrow198 and even where successful Bressol suggests that some boundaries 192 193 194 195 196

Ibid, para. 69. Ibid, para. 70–73. Ibid, para. 75–79. Ibid. See for some background information of the situation of Austria and Belgium in this regard S. Garben, ‘Case note on 73/08, Bressol, [2010]’, 47(5) Common Market Law Review (2010) 1493, pp. 1495–1499, 1504. 197 Constitutional Court (Belgium) No 89/2011 of 31 May 2011, reference number 4034 and 4093, para. B.8.1–B.8.8.5 (concerning the bachelor in veterinary sciences and bachelor physiotherapy and physiotherapy and rehabilitation). 198 See also A-P van der Mei, ‘Free Movement of Students and the Protection of National Educational Interests: Reflections on Bressol and Chaverot’, 13 European Journal of Migration

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cannot be crossed. At the end of the day, the principle of equal treatment with host Member State nationals as regards access to education cannot be a hollow one. 3.2.7 Benefits Facilitating the Free Movement of Students The legal regime governing access of migrant eu nationals to study facilitating measures offered by Member States is somewhat more differentiated in nature. The main rule here is that, while Member States are required to show a degree of financial solidarity, the circle of beneficiaries may be limited to those individuals having demonstrated a degree of integration with the (society of) the host Member State (the so-called ‘genuine link’ requirement). However, the legal framework is less clearcut than the ‘access to education’ regime: there remains a degree of uncertainty as to whether Member States may or must vary the intensity and extent of the genuine link required, depending on the specific benefit at issue. 3.2.7.1 Scope ratione materiae: What are Student Grants and Loans? This category is very much evolving in the case law of the Court yet remains undefined. Since Bidar, overturning the Court’s judgment in Lair and Brown, it is clear that maintenance aid in the form of student grants or other forms of (subsidised) loans for study purposes fall within the scope of Article 18 tfeu.199 However, the Court has never explicitly defined ‘student grants or student loans’ – and it is not always easy to distinguish this category, with very specific case law applying to it, from other types of social benefits. Consider in this regard that some Member States200 provide books or food allowances, special student housing, or other special grants (e.g. to reimburse students paying for mandatory health insurance policies).201

and Law (2011) 123, pp. 130–133. Consider also that the Commission is actively monitoring the measures adopted by Belgium and Austria and at present still seems unconvinced that the evidentiary requirements laid down by the Court of Justice in Bressol have been satisfied: IP/12/1388, Austria and Belgium were given more time to justify quotas, of 18 December 2012. 199 Case C-209/03, Bidar, ECLI:EU:C:2005:169, para. 30–47. 200 See for an overview of the different systems of the 27 Member States and the different benefits they provide students: P. Minderhoud (ed.), Student grants in the eu, (European Network on Free Movement of Workers: Radboud Universiteit Nijmegen, 2012) on file with author. 201 See also Commission Staff Working Document SEC(2010) 1047, Youth on the Move: A Guide to the Rights of Mobile Students in the European Union, of 15 September 2010, pp. 9–11.

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The difficulty in this regard is illustrated in two recent cases concerning public transport benefits (benefits-in-kind) for students. The Commission brought infringement proceedings against both Austria and the Netherlands, alleging breach of the principle of non-discrimination on grounds of nationality as Austria reserved the benefits in question to those students whose parents received Austrian family allowances, and the Netherlands only provided the benefit to those students who were also eligible to receive maintenance aid for study purposes (studiefinanciering: a cash benefit). Access to studiefinanciering, in turn, was (and is) subject to stringent criteria (see below). Both Austria (in the alternative, should the link with Austrian family allowances not be accepted) and the Netherlands sought to rely on Article 24(2) of Directive 2004/38, which provides that Member States are not obliged to provide access maintenance aid in the form of student grants or student loans before the person in question has obtained permanent residence, is economically active or a family member of someone who is. The case thus centered on whether the benefits in question were such student grants or loans. Schemetically, the nature, aims and context of the ­benefits was as follows: Table 3.1

Nature, aim and context of the benefits at issue in Case C-75/11 and Case C-233/14

Austria Nature of the benefit Apparent purpose Provision Financing Recipient eligibility

The Netherlands

Fee reduction for the use of public transport (grant)

Free use of public transport on some days of the week; reduced fees on the other days (conditional grant)202 To facilitate access to education To facilitate access to education Commercial public transport operators The individual governments of several Länder Student 1. Enrolment higher education 2. Parents in receipt of Austrian family allowances

Commercial public transport operators Central Dutch government Student 1. Enrolment in higher education. 2. Student in receipt of Dutch studiefinanciering

202 Where the student in question obtaines a higher education diploma within a period of ten years after having first commenced studies, the benefit need not be paid back.

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Despite this apparent similarity, the outcomes of the two cases in this respect were diametrically opposed. In Commission v Austria (student travel concessions), the Court clearly held: Although (…)the reduced transport fares granted to the students concerned constitute maintenance aid for them, only maintenance aid for studies ‘consisting in student grants or student loans’ come within the derogation from the principle of equal treatment provided for in Article 24(2) of Directive 2004/38.203 This suggested, therefore, that the benefit at issue was not to be considered a student grant or student loan. The Court in the end found Austria to have breached its obligations,204 and suggested that rather than being made dependent on permanent residence etc. (as allowed by Article 24(2) Directive 2004/38), the benefits in question should be provided to all students enrolled in higher education.205 In the Netherlands the opposite conclusion was reached: Under that legislation, the student is given a travel card granting him free access to public transport or access at a reduced rate. If the student successfully completes his studies within 10 years, he is not required to repay that financial assistance. If the student fails to complete his studies within that period, the grant must be repaid. Thus, financial support for travel costs, as provided for by the Netherlands legislation, has the characteristics of and is akin to a student grant or a loan, depending on whether or not the student successfully completes his studies within a period of 10 years. It follows that financial support for travel costs, such as that at issue in the present case, must be regarded as ‘consisting in student grants or student loans’ within the meaning of Article 24(2) of Directive 2004/38.206 The cases will be discussed in more detail below. Suffice to say here that regarding the issue of definition the Court’s case law is confusing and the ­applicable principles unclear. In Commission v Austria (student travel concessions) the 203 Case C-75/11, Commission v Austria (student travel concessions), ECLI:EU:C:2012:605, para. 55. 204 Ibid, para. 66. 205 Ibid, para. 64. 206 Case C-233/14, Commission v the Netherlands (student travel concessions), ECLI:EU:C:2016:396, para. 89–90.

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Court pointed to the necessity to classify benefits based their constitutive elements, including their nature and purpose. The result mattered, not the formal structure.207 In Commission v the Netherlands (export of student grants), however, the formal structure (inclusion of the benefit in the Dutch legislation on student grants/loans, the ‘conditional’ aspect to the benefit) seemed instead to have been determinative.208 The only aspect that is certain is that the concept of ‘student grants or student loans’ can cover both benefits provided in cash as well as in kind.209 It is submitted here that this means that Commission v the Netherlands (student travel concessions) in essence overturns the finding in Commission v Austria (student travel concessions): public transport benefits provided to students (an in-kind benefit) should not be seen as a category separate from the ‘classic’ maintenance aid provided in the form of a cash benefit. And thus need not be provided to all students enrolled in a higher education institute: Rather both benefits are to be considered forms of student grants and/or loans, as a result of which Member States may circumscribe access thereto in accordance with the principles to be discussed below. For the rest, the unsatisfactory conclusion must therefore be that the issue remains open for the time being. It may be hoped that subsequent case law will clearer on the issue. 3.2.7.2

Scope ratione personae: Who has Access to Student Grants and/or Loans? Unlike the legal regime applying to access to education, in the regime as regards study facilitating benefits, the rights an eu citizen may derive from eu law may differ depending on the specific status attained. As seen above, Member States are only required to provide individuals with financial support in the form of student grants and/or loans where that person can show a certain degree of integration. Moreover, the conditions also vary depending whether the student grant or loan is to be enjoyed on the territory of the Member State that is providing it or whether it is exported to a third Member State for the purposes of following education there. For the purposes of the analysis, we start again with the ‘Union citizen’ (named ‘A’) who seeks to study in Member State X. The question that this 207 Case C-75/11, Commission v Austria (student travel concessions), ECLI:EU:C:2012:605, para. 63. 208 See also M. de Mol, ‘De student-ov is niet in strijd met het eu recht’, 20(2) Nederlands Tijdschrift voor Europees Recht (2016) 291, p. 294. 209 Case C-233/14, Commission v the Netherlands (student travel concessions), ECLI:EU:C: 2016:396, para. 92.

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­section seeks to answer, is from which Member States, and under what conditions as set out by eu law, this student is able to claim financial support in the form of student grants and/or loans. 3.2.7.2.1 3.2.7.2.1.1

Student A Seeking to Claim Financial Support from Member State X in Order to Pursue a Course of Study in that Same Member State The Default Position: Union Citizens Who Leave Their Member State of Origin to Study in another Member State and have no Further Connections with the Host State

In Förster210 the Court upheld and found the imposition of a durational residence requirement requiring the migrant eu student to have resided in the Netherlands for five years prior to being provided with study finance under the Wet studiefinanciering 2000 to be proportional.211 As such, the Court ostensibly harmonised its position with that taken by the eu legislator in the Citizen’s Rights Directive (Directive 2004/38).212 Article 24(2) of that Directive provides an exception to the principle of equal treatment with host Member State nationals formulated in Article 24(1) for maintenance aid for studies, providing that Member States only have to provide such grants to individuals having obtained a right to permanent residence (normally obtained after five years of lawful residence, see Article 16 Directive 2004/38).213 Thus, Member States can, as the outer limit, impose a five-year residence requirement prior to providing a Union citizen with student grants and/or loans under their respective systems. 3.2.7.2.1.2

The Student-Worker: The Union Citizen Enrolled in Higher Education while Simultaneously Qualifying as a Union Worker under eu Law214

In Commission v the Netherlands (export of student grants) as well as l.n., the Court has taken large steps towards integrating its longstanding case law as 210 Case C-158/07, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep, ECLI:EU:C:2008:630. 211 Ibid, para. 45–58. 212 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, oj [2004] L 158/77. See also O. Golynker, ‘Case Note on Case C-158/07, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep, Judgment of the Court (Grand Chamber) of 18 November 2008, not yet reported’, 46 Common Market Law Review (2009) 2021, pp. 2024–2026. 213 As will be seen below and recognised in Article 24(2) Directive 2004/38 eu citizens who are workers and their family members cannot be made subject to this residence requirement. 214 Note, whereas only the position of eu worker will be discussed, the same principles apply, mutatis mutandis, to self-employed individuals: Case C-337/97, Meeusen, ECLI:EU:C:1999:284, para. 26–29.

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regards free movement of (economically active) persons with its more recent eu citizenship jurisprudence. l.n. clarified that the eu citizen can have multiple, interlocking status at the same time. eu citizenship functions as the base material which can have several guises, for example, a student or a worker or both simultaneously (full time studies, part-time work).215 In the latter case, the ‘worker status’ functions as an ‘add-on’ to derive additional rights from eu law. By relying on a combination of eu citizenship and the classic fundamental freedoms a sort of ‘eu citizen +’ status is created. These individuals have a stronger right of residence (no ‘sufficient resources’ required) and stronger right to equal treatment with the host Member State nationals as regards social advantages offered by the host Member State. Unlike under the default position discussed above, they must be presumed to have established a genuine link with the host Member State as a result of their contribution to the host economy.216 As seen above, case law suggests that about ten hours of remunerated work per week in a subordinate relationship of employment217 is sufficient in this regard.218 The fact that a student-worker came to the host Member State with the principal intention of studying does not disqualify him from obtaining this worker status.219 Such a student-worker, apart from enjoying a stronger right of residence not conditioned by Article 7(1)(c) of Directive 2004/38 (no need for sufficient resources or comprehensive medical insurance), can rely on the principle of non-discrimination found in Article 45(2) tfeu, which is further elaborated in Regulation 492/2011.220 Lair and Brown, as well as the more recent case ln, confirm that student grants (and scholarships221) constitute a 215 Case C-46/12, l.n., ECLI:EU:C:2013:97, para. 36–48. 216 Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C: 2012:346, para. 63–66. 217 The essential feature of which is that the person in question ‘for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration’: Case 66/85, Lawrie-Blum, ECLI:EU:C:1986:284, para. 17. 218 See Case C-444/93, Megner and Scheffel, [1995] ecr I-4741, para. 18–20. 219 Case C-46/12, l.n., ECLI:EU:C:2013:97, para. 46–47. 220 The Court has held that Regulation 1612/68/EEC, the predecessor of current Regulation 492/2011/EU, does not constitute a source of autonomous rights: Case C-171/01, Wählergruppe “Gemeinsam Zajedno/Birlikte Alternative und Grüne GewerkschafterInnen/UG”, and Bundesminister für Wirtschaft und Arbeit and Others, ECLI:EU:C:2003:260, para. 83, 84. 221 Case 235/87, Annunziata Matteucci v Communauté française of Belgium and Commissariat général aux relations internationales of the Communauté française of Belgium, ECLI:EU:C:1988:460, para. 11–12. Moreover, the basis on which the scholarship was made available (in casu, a bilateral treaty) was irrelevant for the application of the principle of equal treatment.

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social advantage within the meaning of Article 7(2) of what is now Regulation 492/2011222 and that, as such, student-workers have a right to claim such grants under the same conditions as host Member State nationals. Additional conditions are prohibited: the Member State cannot make the provision of the grant conditional on the student-worker having completed a minimum period of employment prior to the application,223 nor can it impose a residence requirement224 allowing frontier-workers to claim equal treatment in their state of employment. Finally, the ex-worker-turned-student can continue to rely on his previous worker status to claim student allowances where there is continuity between the previous employment and the studies subsequently commenced. In case of involuntary unemployment, such continuity is not required where the labour market conditions are such as to oblige the ex-worker to train in a different field. A further condition for ex-worker status is that the (previous) work must not have been merely ancillary to the subsequent studies.225 3.2.7.2.1.3

The Student-Family Member: The Student Who can Invoke Derivative Rights by Reason of being Connected, or having been Connected, as a Family Member to a Union Citizen (Who is Typically, or has been, Economically Active)

Here the basis for claiming financial assistance for studies lies in a family relationship: such a close relationship allows Union citizen A to derive a genuine link with Member State X from for example a parent or spouse who is economically active in that Member State. Where Union citizen A resides in Member State X while a parent226 is engaged in an economic activity as a Union worker,227 he or she is guaranteed a right to commence and continue education on the basis of Article 10 of ­Regulation 492/2011.228 This includes, furthermore, immediate and full 222 Case 39/86, Lair, ECLI:EU:C:1988:322, para. 22–24, Case 197/86, Brown, ECLI:EU:C: 1988:323, para. 18 and Case C-46/12, l.n., ECLI:EU:C:2013:97, para. 50. 223 Case 39/86, Lair, ECLI:EU:C:1988:322, para. 40–42. 224 Case C-337/97, Meeusen, ECLI:EU:C:1999:284, para. 18–25. 225 Case 197/86, Brown, ECLI:EU:C:1988:323, para. 25–27. 226 See for this term: Joined Cases C-401 to 403/15, Depesme and Kerrou a. o. v Ministre de l’Enseignement supérieur et de la Recherche, ECLI:EU:C:2016:955. 227 Similar principles should apply, mutatis mutandis, to self-employed persons following Case C-337/97 C.P.M. Meeusen v Hoofddirectie van de Informatie Beheer Groep, EU:C:1999:284, para. 26–30. 228 Case C-115/15, Secretary of State for the Home Department v na, ECLI:EU:C:2016:487, para. 62–63.

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­entitlement to student grants and/or loans.229 Once these two factors (residence of child and economic activity of the parent in the same Member State) have coincided, it is no longer necessary for the Union worker-parent, from whom the right was initially derived, to retain his or her status as worker for these rights (to commence or continue education) to remain active; nor is it necessary for this parent to even remain in the host Member State.230 The age of the child or his/her (financial) dependency on the worker-parent is irrelevant for the purposes of relying on Article 10.231 The only limitation of Article 10 of Regulation 492/2011 is the fact that it requires the residence of the child in the host Member State at some point. The picture is slightly different if Union citizen A is and was not resident in Member State X but is still seeking to study there. Suppose that Union citizen A resides in Member State Z with his parent, who is engaged as a frontier worker in Member State X. In such circumstances, Article 7(2) of Regulation 492/2011 provides the legal basis for a claim of equal treatment concerning student grants and/or loans for Union citizen A in Member State X: the award of student grants and/or loans to children of workers constitutes a social advantage for the worker under that Article (even where such financial support is granted directly to the student).232 This is, however, only the case where the child is dependent on the worker-parent.233 In addition, for Article 7(2) of Regulation 492/2011 to remain active, the worker-parent must have the status of worker in the state of employment. It is true that family members of ex-workers can in some circumstances rely on the right of equal treatment as regards social advantages, where these are intrinsically linked with the ex-worker’s prior worker 229 Joined Cases C-389 /87 and C-390/87, Echternach and Moritz, ECLI:EU:C:1989:130, para. 33–35. Moreover, once obtained, the child continues to enjoy a right of equal treatment even if the original conditions for acquisition (for example a working parent) are no longer present: Case C-413/99 Baumbast and R v Secretary of State for the Home Department, EU:C:2002:493, para. 50–52, 54, 68–74. 230 Case C-413/99, Baumbast, ECLI:EU:C:2002:493, para. 50–52, 54, 68–74. See also: Joined Cases C-389 /87 and C-390/87, Echternach and Moritz, ECLI:EU:C:1989:130, para. 19–21, Case C-480/08, Maria Teixeira v London Borough of Lambeth, Secretary of State for the Home Department, ECLI:EU:C:2010:83, para. 49–50, 53 and Case C-310/08, London Borough of Harrow v Nimco Hassan Ibrahim, Secretary of State for the Home Department, ECLI:EU:C:2010:80, para. 38–39, 42. 231 Case C-7/94, Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal, ECLI:EU:C:1995:118, para. 23–30. 232 Case C-3/90, M.J.E. Bernini v. Minister van Onderwijs en Wetenschappen, EU:C:1992:89, para. 24–25. See also Case C-337/97, Meeusen, ECLI:EU:C:1999:284 para. 19–24. 233 Case C-3/90, Bernini, EU:C:1992:89, para. 25.

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status. However, student grants and/or loans do not seem to be among that category of social advantages.234 Finally, a similar reasoning applies where Union citizen A is not a child, but rather another form of family member235 (e.g. a spouse) of a Union worker or self-employed person active in Member State X. Here the relevant provision is always Article 7(2) Regulation 492/2011 where it concerns access to student grants and/or loans (whether resident in the Member State of employment or not).236 A link of dependency (e.g. between spouses) cannot be required in such circumstances. However, once the worker from whom the rights initially were derived stops working, the right to equal treatment as regards student grants and/or loans for the family member also lapses in line with Fahmi. 3.2.7.2.2 Portable Financial Support: Student A Seeks to Claim Financial Support from Member State Y in Order to Pursue a Course of Study in Member State X It should be noted at the outset that Member States are not required, as a matter of eu law, to provide for portable financial aid for studies.237 ­However, where a Member State nonetheless has introduced the option of export of student grants and/or loans in its domestic legislation, the specific conditions attached to eligibility for such export must comply with eu law. In the past, the Court has already had occasion to reject as incompatible with eu law the requirement that student grants and/or loans cannot be exported to the state of nationality.238 Moreover a so-called ‘first stage criterion’ under which the portability of student grants under the German scheme was made conditional on the individual in question having completed a year of study in a German institution and subsequently enrolling in a course of study that followed up on that initial study period, was considered an unjustified restriction of free movement rights under Article 21 tfeu.239 Finally, more recently, the Court also found that Member States cannot restrict the types of courses eligible for portable student funding if such a restriction does not also exist for 234 Case C-33/99, Hassan Fahmi and M. Esmoris Cerdeiro-Pinedo Amado v. Bestuur van de Sociale Verzekeringsbank, EU:C:2001:176, para. 33–47. 235 Here, reference may be made to the concept of family member as elaborated in Articles 2 and 3 of Directive 2004/38. 236 Classically, see Case 32/75 Anita Cristini v Société nationale des chemins de fer français, EU:C:1975:120. 237 Case C-275/12 Samantha Elrick v Bezirksregierung Köln, EU:C:2013:684, para. 25; and Case C-220/12 Andreas Ingemar Thiele Meneses v Region Hannover, EU:C:2013:683, para. 25. 238 Case C-308/89, Carmina di Leo v Land Berlin, ECLI:EU:C:1990:400, para. 16. 239 Joined Cases C-11/06 and C-12/06, Morgan and Bucher, [2007] ecr I-9161, para. 22–51.

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s­ imilar courses domestically: in Elrick courses leading to a ‘weak qualification’, as ­defined by the German legislation, were excluded from portable funding, whereas the same type of courses provided in Germany itself were nonetheless eligible for funding.240 The main question that recent case law has sought to answer, however, has focussed more on circumscribing the beneficiaries for portable student grants and/or loans by means of genuine requirements. The following can be said as regards each of the positions mentioned above. 3.2.7.2.2.1

The Default Position

3.2.7.2.2.2

The Student-Worker

3.2.7.2.2.3

The Student-Family Member

For the default position, the situation is the same as dicussed above. Similar to Member State X, Member State Y could require Union citizen A to have resided for up to five years on its territory before becoming granting access to financial aid for studies (including access to portable grants). As the case law stands, there is no reason to assume that Member States are allowed to apply stricter or more elaborate genuine link requirements where it concerns eligibility for portable maintenance aid. Also for the student-worker there is no real change: the classic case law suggests that where the student is a worker, or has retained the status of worker,241 he or she is to be considered sufficiently connected to the Member State of employment (here Member State Y) for the purpose of claiming portable student grants and/or loans.242 Recent attempts by Member States to impose additional requirements, such as in particular the fulfilment of a durational residence requirements (e.g. three years of residence out of the six years prior to the application for portable student grants) were rejected in Commission v the Netherlands (export of student grants).243 Access of family members to portable student grants and/or loans has recently become more complex. Discussing the position where Union citizen A is the child of a worker or self-employed person first, it is prudent, following the 240 Case C-275/12, Elrick, ECLI:EU:C:2013:684, para. 27–33. 241 The same reasoning should again apply, mutatis mutandis, to self-employed persons. 242 Case 235/87 Annunziata Matteucci v Communauté française of Belgium and Commissariat général aux relations internationales of the Communauté française of Belgium, EU:C:1988:460, para. 12ff. 243 Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:34, para. 48–88.

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­ruling in Giersch, to distinguish several gradations. At the top of the ‘hierarchy’ is the situation where the family (worker-parent + child) as a whole lives in Member State Y in which the child applies for a portable student grant (in order to study in Member State X). Where the conditions for the application of Article 10 of Regulation 492/2011 have been fulfilled (see above), the child seems to be sufficiently connected to the Member State for the purposes of claiming portable student grants.244 The intermediate position is the situation of a ‘frontier-family’ in which all members live in Member State Z but with a worker-parent engaged in Member State Y. If in such a situation the child applies for a portable student grant in Member State Y (with a view to study in Member State X), the legal basis for this claim will be Article 7(2) of Regulation 492/2011 (see the attached conditions above). Where, in addition to the link through the worker-parent, the child can also show other links with Member State Y (such as having completed a period of schooling there), the ruling in Giersch suggests that the child can be considered sufficiently connected.245 Finally, in the circumstances of a ‘pure frontier-family’, where the only link of Union citizen A with Member State Y is the link of employment of a ­workerparent, the Court has suggested that Member States can require a certain strength to that link, as evidenced by a minimum period of prior e­ mployment amounting to a ‘significant period of time’.246 However, it is ­currently unclear how such a ‘significant’ period should be understood. In the case of Verruga, the Court seemed to find a requirement of five years prior employment to be appropriate, but rejected the condition that it should be continuous.247 Regarding the position of the ‘other family member’, in particular the spouse and/or (registered) partner, the reasoning set out above should apply in principle mutatis mutandis, although the legal basis for the claim will in that case always be Article 7(2) of Regulation 492/2011. 3.2.7.2.3 Access to Student Grants and/or Student Loans: The Peculiarity of Direct Discrimination As seen above, as a basic point of departure, the Union citizen was taken without referring to his or nationality. This was a conscious choice, as one of the confusing elements in the area of access to student grants and/or loans is that 244 Case C-20/12 Giersch, EU:C:2013:411, para. 72–76, in particular para. 75; and Case C-308/89 Carmina di Leo v Land Berlin, EU:C:1990:400, para. 15. 245 Case C-20/12 Giersch, EU:C:2013:411, para. 72–76. 246 Ibid, para. 78–80. 247 Case C-238/15, Bragança Linares Verruga a.o. v Ministre de l’Enseignement supérieur et de la recherché, ECLI:EU:C:2016:949, para. 69. .

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the Court seems to allow ‘nationality’ to matter: that is to say, the Court allows direct discrimination on grounds of nationality. As Sharpston has put it, direct discrimination arises when (…) the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.248 In Förster, the Court seemed to uphold the Dutch system which provides immediate access to student grants and loans to Dutch nationals (on the simple fact of possession of nationality), but makes eligibility of Union citizens with a nationality of another Member State subject to additional criteria (e.g. worker status, five years of residence).249 As such, one category of persons (Dutch nationals) has ‘easy access’, whereas another category of persons (non-Dutch eu citizens) is denied access unless specific circumstances apply (residence period, worker/self-employed status or family member of such a person). This trend was continued in Prinz and Seeberger. The case concerned two German nationals who challenged the eligibility requirement set out by the Bundesausbildungsförderungsgesetz to have resided in Germany for three years in the five years preceding an application for portable student grants. In that context the Court ruled that: Although the existence of a certain level of integration may be regarded as established by the finding that a student has resided in the Member State where he may apply for an education or training grant for a certain period, a sole condition of residence, such as that at issue in the main proceedings, risks (…) excluding from funding students who, despite not having resided for an uninterrupted period of three years in Germany immediately prior to studying abroad, are nevertheless sufficiently connected to German society. That may be the case where the student is a national of the State concerned and was educated there for a significant period or on account of other factors such as, in particular, his family, employment, language skills or the existence of other social and ­economic factors.250

248 Opinion of A-G Sharpston in Case C-73/08, Bressol, ECLI:EU:C:2009:396, para. 56. 249 See Article 2.2 Wet Studiefinanciering 2000 jo. Besluit Studiefinanciering 2000. 250 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, ECLI:EU:C:2013:524, para. 38.

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The above paragraph suggests that Member States are not only allowed to privilege their own nationals in student grant and loan matters, but in fact they must do so as nationality constitutes an independent connecting factor (among others) by which a Union citizen can establish a genuine link with a Member State of the eu and which may not be discounted. It follows that there seems to be nothing ‘wrong’ with a system whereby the Union citizen has the nationality of the Member State and he or she is granted immediate access on that point alone while other Union citizens are restricted. There is also no issue under eu law, as such, with allowing such students to export their grants or loans abroad simply because they are nationals without any further conditions attached. In practice, however, Member States sought to circumscribe the eligibility of their own nationals for portable grants by imposing so-called durational residence requirements. These required the applicant, for example, to have resided in the Member State for three years out of five (Germany) or three years of out six years (the Netherlands) preceding the application.251 The Court consistently found that indeed such requirements are liable to put a free moving Union citizen at a disadvantage precisely for having exercised his or her free movement rights.252 Considering grounds for justification, Member States invariably argue that the requirement is necessary to ­ensure a sufficient degree of integration with the Member State providing the ­benefit.253 Some Member States assign predictive value to the fulfilment of a durational residence requirement, arguing that such persons are more likely to return after the study period abroad (invoking an investment logic: invest by means of grants/loans now, be repaid once the student becomes economically active).254 Whereas the Court seems to accept both grounds for justification as appropriate,255 it takes issue with the sole reliance on the durational residence requirement to assess the degree of integration (and/or the likelihood of return). As the above-quoted paragraph of Prinz and Seeberger makes clear, a broad range of criteria must be taken into account to assess the genuine link. 251 Case C-359/13, B. Martens v Minister van Onderwijs, Cultuur en Wetenschap, ECLI:EU: C:2015:118, para. 33. 252 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, ECLI:EU:C:2013:524, para. 31. 253 Ibid, para. 34–36, Case C-359/13, Martens, ECLI:EU:C:2015:118, para. 35. 254 Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:34, para. 77. 255 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, ECLI:EU:C:2013:524, para. 36 and Case C-542/09, Commission v the Netherlands (export of student grants), ECLI:EU:C:2012:34, para. 79.

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It should be noted that the Court did not, as such, criticise the ‘weight’ of durational residence requirements, but rather felt that equivalent evidence of a connection with the Member State at issue could be found in other factors. Member States thus retain some leniency in what they consider as ‘sufficient’ in this regard. As such it is hard to derive general guidelines as to when an ‘own national’ can be considered sufficiently connected to be eligible for (portable) student grants and/or loans. The limits set out by eu law in this regard have not been clarified, other than that Member States must give the link of nationality some weight. 3.3

Discussion and Development of the Legal Framework

The previous sections developed, first, the idea that there is a philosophical intelligibility to the concept of Union citizenship as it has developed, and secondly, provided an overview of the case law of the Court of Justice as regards the free movement of students. This section seeks to comment more generally on the coherence of the case law as presented, as well as to discuss further avenues for its development reflecting a genuine commitment to promoting the rights of mobility of students. The case law of the Court emphasising the importance of the freedom of movement for students in the eu, as well as the philosophical underpinnings the Union citizenship was argued to have, both suggest that student mobility is to be taken seriously: there should be a strong presumption in favour of facilitating, enhancing and promoting the free movement of students in the European Union. In Bressol the Court even seems to designate this type of free movement a fifth freedom: (…) it is for the referring court to examine whether the competent authorities have reconciled, in an appropriate way, the attainment of that objective with the requirements of European Union law and, in particular, with the opportunity for students coming from other Member States to gain access to higher education, an opportunity which constitutes the very essence of the principle of freedom of movement for students256 (­emphasis by author) Apart from those Member State nationals falling under the classic four freedoms, there are few categories of free movers which have such an extensive body of case law applying to them. 256 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 79.

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It was already argued above that the mobility of eu citizens is important for the eu project of integration and the development, elaboration and defence of a common eu conscience and/or community of values. Student mobility, as a subset of mobile eu citizens can be held to be in particular significant in this regard, both quantitatively and qualitatively. In the quantitative sense, it is clear that free movement of students is already a large and still growing phenomenon: some 600,000+ students with an eu nationality move around the eu in search of education,257 a number which has grown some 50% compared with the situation in 2000.258 In the qualitative sense, it will be reminded here that in Chapter 2 the link between student mobility and eu citizenship was comprehensively examined. The overall conclusion was that the former ties into and promotes the development of the eu citizenship dimensions mentioned above. Student mobility functions as a catalyst to develop the legal concept (students as pioneering eu citizens) and can be seen as a sort of ‘eu citizenship education’ in and of itself. It fosters a sense of mutual trust and understanding between the European peoples (‘horizontally’ – membership) due to intergroup contact, while at the same time mobile students show more interest in and commitment towards the European Union, its institutions and the integration programme (‘vertically’ – participation). This can, arguably, also be seen as a characteristic of this particular subset of eu citizens: students are (normally) young, idealistic, more open and flexible (going abroad to learn) and more ready to interact with other cultures. This eminently predisposes them towards the goals of eu rapprochement set out above. Similarly, it was also seen in Chapter 2 that there exists a nexus between student mobility and future highly skilled mobility, the optimal allocation of which among the Member States of the eu should generate significant economic benefits and enhanced eu competitiveness. Moreover, student mobility also ‘adds value’ in and of itself as a learning experience which promotes the acquisition of a number of hard and soft skills valued by the labour market. A second major implication of the citizenship view of students is that it articulates a particular concept of solidarity. Mobility of students, as economically inactive individuals, suggests trust: trust that, whereas not necessarily every instance of mobility may immediately contribute in a measurable 257 Obtained from Eurostat 2015 values, educ_uoe_mobs02, available at http://appsso .eurostat.ec.europa.eu/nui/show.do?dataset=educ_uoe_mobs02&lang=en last visited 07.04.2017. 258 Commission Staff Working Document SEC(2011) nyr, Progress towards the common ­European objectives in education and training (2010/2011): Indicators and benchmarks, pp. 33–40.

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way to the objectives and values of the Member State as such, and the Union more generally, but that on balance, the phenomenon is positive. This ideal is reflected in the case law of the Court of Justice as regards free movement of students which may summarised as follows: that education is to be provided under equal terms to all Union citizens. Financial and quantitative restrictions seeking to exclude foreign Member State nationals are generally treated harshly. It is thus part and parcel of the eu constitutional settlement that Union ­citizens – without the need for an explicit quid pro quo – should be able to access education throughout the Union under the same conditions as host Member State nationals. Of course, this solidarity does have its limits. Where it concerns study facilitating benefits, we saw that a different legal regime applies. Here solidarity need only be extended to the eu citizen where he or she has obtained a degree of integration in the host State. This could be established, as seen, through contractual recognition (a quid pro quo relationship) or through progressive integration. There is something to be said for making such financial support, in the form of cash benefits, subject to stricter requirements, as political economy suggests that the provision of such benefits necessitates a greater level of trust between members of a society.259 Nonetheless, that is not to say that this should shield the current legal regime as regards access to study facilitating benefits from all criticism. If the basic principle is that persons should have a basic right to study-related benefits subject to having established a sufficient degree of integration, the current legal regime seems quite inconsistent, as will be shown below. As a point of departure for the discussion of the legal framework presented above, this section will take the view of a Union citizen whose rights of access to education – in line with the cosmopolitan underpinnigs – should be interpreted broadly and, where it concerns access to study facilitating benefits, should be granted access if he or she can show the requisite degree of integration. The Principle of Access to Higher Education Offered in one of the Member States of the eu This falls under the right of the ‘visitor’ to establish initial contact with the host society and must thus be interpreted as progressively as possible as ‘access’ constitutes the essence of the free movement of students (and other eu ­citizens) in the light of the overall objective of establishing an ever closer Union. Since the student mobility is of concern to the eu, it follows that eu law should have

3.3.1

259 See N. Barr, Economics of the Welfare State, (Oxford University Press, 2012), pp. 64–69.

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broad scope, catching any Member State measure seeking to restrict this right as well as imposing a high standard of review (with limited discretion on the part of the Member State) as regards potential attempts to justify such incursions. In part, such a legal framework is already present. However, there is room for improvement. The access regime, as seen, includes in particular two rights: a right to enter and reside in the host State for the purposes of study and a right to ‘become a student’ under the same conditions as host Member State nationals. 3.3.1.1 Residence Rights for Students: A Progressive Argument With regard to the right of residence it was already mentioned that the eu national derives a right of residence in the host State from two sources: Article 18 and Article 21 tfeu. It was equally found that the Court already has admonished the Member States to interpret the conditions they can legitimately impose for the exercise of that right leniently. The first condition that the student should reside in the host State for the principal purpose of pursuing a course of study should arguably not lead to the host State verifying whether the student is a genuine student beyond merely determining whether he or she is enrolled in a (accredited) higher education institute. The second set of conditions, that of the student having sufficient resources and a comprehensive medical insurance, are also not difficult to fulfil (a mere declaration of sufficient resources suffices, no minimum amount may be satisfied). Finally, expulsion for nonsatisfaction of these conditions must not be automatic and must respect the principle of proportionality. It is arguable, however, that this small summary of the Court’s case law does not adequately reflect the position of the student in this regard. One may very well question whether a student, resident on the basis of Article 7(1)(c) of Directive 2004/38, can or should ever really be expelled as an ‘unreasonable burden’ on the social assistance system of the host State (e.g. for receiving certain study facilitating benefits or other forms of social assistance from the host State such as rent support).260 Consider, that recital 16 of Directive 2004/38 in particular mentions three dimensions in which ‘unreasonable burden’ is assessed: assistance amount, duration (of the assistance provided) and degree of integration with the host State. The Court had occasion to clarify the concept in the case of Brey. It concerned a German pensioner who resided in ­Austria and applied for a compensatory supplement to augment his retirement pension. The Austrian authorities refused him such a benefit, arguing that his 260 Note, the student can of course still be expelled by reason of being a threat to public policy or public security under the conditions of Article 27 Directive 2004/38 and further.

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very eligibility for the supplement indicated that Brey did not have sufficient resources to avoid becoming an unreasonable burden. The Court, however, found that Austria could not simply refuse the benefit and had to: [Carry] out an overall assessment of the specific burden which granting that benefit would place on the national social assistance system as a whole, by reference to the personal circumstances characterising the individual situation of the person concerned.261 Reflecting on the position of the student, we can see that: – A genuine link with the host State, for a student, is sine qua non for the receipt of study facilitating benefits: As such, prior to receiving a benefit in connection with studies, a degree of integration must always be present, which speaks in favour of protecting the student against expulsion for relying on social assistance.262 In any case, should the student first be required to attain a right to permanent residence prior to being eligible for student grants and/or loans, expulsion on grounds of ‘unreasonable burden’ would be prohibited. Finally, should the benefits claimed be of a different nature (e.g. rent assistance), it should be taken into account that the receipt of education in the host Member States is a relevant factor in determining the degree of integration of a Union citizen with the host Member State.263 Students are thus predisposed, perhaps more so than o­ ther categories of Union citizens, to create strong links with the host Member State. – The assistance amount is moreover likely to be limited: whereas some student grant systems are relatively generous (cfr. Denmark264), individual cases are unlikely to beggar the State. In determining whether the student constitutes an unreasonable burden reference regard may, moreover, not solely be made to the general pressure exerted by migrant students on educational budgets (and/or social assistance generally) in the host Member

261 262 263 264

Case C-140/12, Brey, ECLI:EU:C:2013:565, para. 64. See also, ibid, para. 78. Joined Cases C-523/11 and C-585/11 Prinz and Seeberger, ECLI:EU:C:2013:524, para. 38. Denmark provides some 808 euro a month in the form of a grant to eligible students living on their own, see http://www.su.dk/su/om-su-til-videregaaende-uddannelser-univer sitet-journalist-laerer-mv/satser-for-su-til-udeboende-paa-videregaaende-uddannelser/ last visited 07.04.2017.

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State. Regard must also be had to the personal circumstances of the individual: Recital 16 admonishes the host State to examine the individual case and this also the tenor of the Court.265 Migrant students who rely on social assistance may thus not be expelled ‘as an example’ or on grounds of a fear for social tourism.266 – Finally, as the Court has recognised in Commission v Italy, the burden of a foreign student is likely to be transitory in nature (they may supplement their income, their studies may end etc.).267 As such, (the expectation on the part of the Court is that) forms of social assistance granted to students are almost by definition temporary in nature.268 Overall, therefore, it is unlikely that it is in fact legitimate in all but the most extreme cases to expel a student for being an unreasonable burden on the host State; this is reinforced by the above-cited case of Brey, which requires Member States to assess the burden that granting a benefit to a student would pose on the the student grant and/or loan system as a whole. 3.3.1.2

Equal Treatment as Regards Access to Education: Addressing Issues Still Unexplored under eu Law This section seeks to address a number of issues that as of yet have not been subject of the Court’s case law. The right to become a student militates against all obstacles which make the take up or enrolment into a course of study more difficult for migrant eu nationals. As a basic principle, therefore, migrant eu nationals have the right to access education under the same conditions as host Member State nationals (national treatment requirement). In the light of what was said above, the scope of that right should be interpreted extensively. The national treatment requirement militates against both directly and indirectly discriminatory measures. An example of the former are the tuition fees that were at issue in Gravier, whereby certain eu nationals were required to pay a higher minerval than others. An example of the latter is Bressol, whereby, in order to gain favourable access to the limited number of study places,

265 Case C-140/12, Brey, ECLI:EU:C:2013:565, para. 64. 266 See by analogy the approach of the Court as regards expulsion on public policy grounds: Case 67/74, Carmelo Angelo Bonsignore v Oberstadtdirektor der Stadt Köln, ECLI:EU:C:1975:34, para. 5–7. 267 See Case C-424/98, Commission v Italy, ECLI:EU:C:2000:287, para. 40 jo. 45. 268 Case C-140/12, Brey, ECLI:EU:C:2013:565, para. 78.

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s­tudents were required to fulfil certain residence criteria. Another example of an indirectly discriminatory residence requirement can be taken from the Netherlands, in which the law obliged students wishing to pay the lower ‘wettelijke collegegeld’ (tuition fee of €1951 for the year 2015–2016) to reside in the Netherlands, Belgium, Luxembourg, or in the German federal states of North Rhine-Westphalia, Lower Saxony or Bremen.269 Where the student was not resident in one of these states, he or she had to pay the higher ‘instellingscollegegeld’ (some €10,000+) instead. Such a rule is indirectly discriminatory as certain eu nationals are more likely to satisfy this rule than others (e.g. A Dutch national is more likely to reside in one of these countries than a Polish national). The rule has since been removed after the initiation of an infringement procedure by the Commission against the Netherlands caused the latter to back down.270 3.3.1.2.1 Access and Language Requirements The imposition of language requirements as an access requirement has some history in the case law of the Court in the context of the free movement of workers.271 In the context of students, in its most extreme form, it could be the imposition of knowledge of the host Member State language even though the language of instruction is, for example, English. There is some evidence that is the case in Latvia, which requires medical doctors pursuing a specialisation to have attained fluency in Latvian in order to be certified despite the fact that the language of instruction for (certain) programmes is English.272 In absence of such fluency, only a diploma and no certificate is awarded,273 which does not entitle the student to automatic recognition within the scheme of Directive 2005/36 if he or she seeks to practice the specialisation in another Member 269 Article 7.45a(1)(b) Wet op het hoger onderwijs en wetenschappelijk onderzoek, Stb. 1992, 593 in the version as it applied on the 1st of February 2013: http://wetten.overheid.nl/ BWBR0005682/volledig/geldigheidsdatum_01-01-2013 last visited 07.04.2017. 270 See Kamerbrief Minister van Onderwijs, Cultuur en Wetenschap aan de Tweede Kamer, Vervallen woonplaatsvereiste in collegegeldbepaling hoger onderwijs, Kamerstukken ii 2012/13, 31288, nr. 326, available at https://zoek.officielebekendmakingen .nl/dossier/31288/kst-31288-326?resultIndex=124&sorttype=1&sortorder=4 last visited 07 .04.2017. 271 See however Case C-379/87, Anita Groener v Minister for Education and the City of Dublin Vocational Educational Committee, ECLI:EU:C:1989:599 for the assessment of a language requirement imposed on a teacher. 272 See Article 5.3 Ārstniecības personu sertifikācijas kārtība, no. 943, 2012. 273 See further: http://www.rsu.lv/eng/about-rsu/faculties/continuing-education/graduatemedical-training last visited 07.04.2017.

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State.274 It is unlikely that such a measure would pass the scrutiny of the Court, as such a requirement would primarily affect foreign students, and their future movement, for purposes not related to the course of study.275 The requirement may be legitimate where practice is envisaged in Latvia (in order to communicate with patients) – and thus as a condition for establishment as a medical specialist there.276 But as a precondition to receive a certification, the courses for which are taught in English, it would not seem legitimate. There is no obvious link between the place of education and the location of (future) practice of the profession:277 students may simply have chosen the course because it is attractive, but seek to actually practice elsewhere. Where instead the language requirement relates to a certain proficiency level in the language of instruction it is more likely to be considered legitimate (as necessary for effective communication between teachers and students, and students inter se). However, at the same time a student must be left with sufficient alternatives to demonstrate his or her proficiency.278 For example, it would be problematic if the domestic secondary education diploma allowed direct access to a course in English whereas foreign students would always be required to sit the toefl279 (notwithstanding the fact that the foreign secondary education diploma also included an arguably equivalent English component). 274 See Annex v, Section 5.1.2 of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, oj [2005] L 255/22. 275 Groener concerned the requirement by Ireland that a teacher should have a minimum level of knowledge of Gaelic, even though Groener herself only taught in English. The Court upheld this restriction, referring to the essential role that teachers play, due to their privileged relationship with their students, in the promotion and protection of an (almost extinct) national language. However, it is doubtful whether the same reasoning can be applied to a student who is, after all, not in a similar position of authority. 276 See Article 53 of Directive 2005/36. See in this regard also: Case C-424/97, Salomone Haim v Kassenzahnärztliche Vereinigung Nordrhein, ECLI:EU:C:2000:357, para. 50ff. 277 As recognised by the Court in Case C-367/11, Déborah Prete v Office national de l’emploi, ECLI:EU:C:2012:668, para. 45. 278 See by analogy Case C-281/98, Roman Angonese v Cassa di Risparmio di Bolzano SpA, ECLI:EU:C:2000:296, para. 37ff and the more recent case of Case C-317/14, Commission v Belgium, ECLI:EU:C:2015:63. See also Case C-379/87, Groener, ECLI:EU:C:1989:599, para. 22–23. 279 Test of English as a Foreign Language, see http://www.ets.org/toefl last visited 07.04. 2017.

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3.3.1.2.2 Access and Diploma Requirements This latter point ties in with another issue: diploma requirements and the principle of mutual recognition. The principle of mutual recognition suffuses the eu legal order and was first280 given effect in the context of the free movement of goods: a product lawfully produced in Member State A must also be admitted in Member State B unless the latter can invoke an objective justification in support of non-admission.281 Therefore, rather than the standard of Member B prevailing (as with national treatment) the standard of Member State A is applied in Member State B unless the latter invokes a good reason why this should not be the case. This is what one can term the positive operation of the principle of mutual recognition: an obstacle to free movement is overcome by substituting the standard of Member State B with that of A.282 In the context of the free movement of students, mutual recognition can fulfil an important role in the area of academic diploma recognition. As a basic principle, therefore, students who hold the necessary academic qualifications to be admitted to a course of study in Member State A should also as a rule be admitted to that course in Member State B. As a basic point of departure, this would surely promote the access to courses offered at higher education institutes abroad. That is not to say that Member State B must recognise foreign degrees unconditionally however. But it is arguable that it must at least engage in the so-called ‘Vlassopoulou comparison’:283 Consequently, a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon 280 See, however, Article 57 eec which created a legal base for the adoption of measures for the recognition of diplomas. 281 Established in Case 120/78, Rewe-Zentral ag v Bundesmonopolverwaltung für Branntwein, ECLI:EU:C:1979:42. 282 Note, this is the theoretical operation of the principle of mutual recognition (an ‘origin principle’). In practice, however, Weiler has pointed out that the Court rather insists on functional parallelism: only if the standard of Member State A provides equivalent protection to the public interest, but in a different manner to Member State B, will it require the latter to recognise the former. Therefore, rather than substituting a higher standard with a lower standard, it is rather that ‘different approaches reaching the same goal’ are to be recognised: J. Weiler, ‘The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods’, in P. Craig and G. de Búrca (eds.), The Evolution of eu Law, (Oxford University Press, 1999), p. 366ff. See also Case 188/84, Commission v France, ECLI:EU:C:1986:43. 283 Case C-340/89, Irène Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg, ECLI:EU:C:1991:193, para. 16–17.

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the possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialized knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules. That examination procedure must enable the authorities of the host Member State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma.284 An example where this would be relevant concerns in particular courses with specialised access requirements. Consider the case of a Dutch national who had obtained her secondary education diploma in Belgium and subsequently applied to study medicine at Maastricht University. In the Netherlands, access to such courses was subject to a numerus fixus, with available places distributed on the basis of a weighted lottery system: the higher the secondary school leaving diploma average, the better the chance to obtain a place. Individuals with an 8 average or higher on their secondary education certificate were granted direct access. The student in question had obtained an 8,8 out of 10 average but was nevertheless consigned to the lottery in a ‘middle class’ (‘C’, students with an average of 7) as a standard rule. All students with foreign secondary education diplomas were automatically relegated to that class. The highest administrative court of the Netherlands found a violation of Article 18 and 21 tfeu and ordered the relevant authority to engage, essentially, in Vlassopolou comparison.285 Overall, therefore, the ‘excellence’ this student displayed in her school results in Belgium was also to be recognised in the Netherlands for the purposes of admission. Similarly, a breach of this principle could also occur where a student in his home state holds the necessary qualifications to enrol in a particular (para)medical course but is nevertheless refused admission to that same course in the host State due to a (slightly) different composition of the courses making up the secondary education degree. At the same time, it should be stressed that the negative operation of the principle of mutual recognition has been rejected by the Court in Commission v Austria (diploma requirements). That case, it will be recalled, concerned the rule that where a student had not been admitted to a course in Member State 284 The case further specifies that where such equivalence is lacking, Member States can require an aptitude test or an adaptation period: see ibid, para. 19ff. 285 RvS, 7 september 2011, ECLI:NL:RVS:2011:BR6920, para. 2.3.4–2.4.5.

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X  (did not fulfil the standard there), he was also not admitted to that same course in Austria. This constituted a breach of eu law: the crux of the matter is that the principle of mutual recognition functions as an extension of national treatment. As such, the Member State must still, as a basic point of departure, apply ‘national treatment’ and assess that person according to its national standards. Therefore, Austria, which applied ‘free access’ to higher education courses (in particular at issue: for courses in medicine) had to accept at least in principle students who could not get into that same course in their state of origin (e.g. because their grade point average was not sufficient). In the light of the general presumption in favour of free movement, this stance (rejection of negative mutual recognition) should be maintained. 3.3.1.2.3

Access to Education: Free Movement of Students as a Tool for Higher Education Providers Finally, some words can be said about the other side of the coin, namely higher education institutes and the free movement of students. In Commission v ­Belgium (higher education financing)286 mentioned above, the Court recognised that applying financing rules to higher education institutes which in essence maintained the effect of the discriminatory tuition fees at issue in Gravier (limited financing for study places occupied by migrant eu nationals) was equally in breach of eu law. This suggests that free movement of students also implies a degree of freedom on the part of the educational institutes to both accept and offer courses to mobile students. It is not, prima facie, legitimate for Member States to (directly or indirectly) ‘reserve’ their higher education system for their own students,287 either by addressing the ‘demand side’ (discriminatory tuition fees) or the supply side (by carrot-or-stick approach vis-à-vis the higher education institutes).288 As such, it is thus arguable that higher education institutes could challenge Member State legislation that constrained their freedom in this regard for incompatibility with eu law. Consider, for example, that Flemish law requires courses to be offered (primarily) in Dutch with a few exceptions.289 The institution would first have to go through 286 Mentioned above: Case 42/87, Commission v Belgium (higher education financing), ECLI:EU:C:1988:454. 287 See also the Opinion of A-G Sharpston in Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 104–106. 288 While it was ultimately allowed in Bressol, this was solely because it could be justified ­under extremely stringent circumstances. As a point of departure, therefore, the statement remains correct. 289 Article II.261(1) Besluit van de Vlaamse Regering tot codificatie van de decretale ­bepalingen betreffende het hoger onderwijs, b.s. 26/02/2014.

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a procedure ­showing the value added of a course taught in a foreign language or prove that it was specifically designed to attract foreign students.290 In addition, where a course is primarily offered in a different language (other than ‘language courses’, e.g. a Bachelor in Economics in English), it is subject to the requirement that the same course is available in Dutch elsewhere in Flanders (hereafter the ‘mirror requirement’).291 Moreover, the offering of courses in a foreign language (other than specific ‘language courses’) is subject to a quota: such coruses may constitute a maximum of 6% of all available bachelor courses, or 35% where it concerns master courses.292 There is, of course, a case to be made that a Member State should be able to maintain some sort of domestic language requirement in higher education institutes (especially those financed by public funds) in the light of the latter’s role in society (and the role of education in maintaining national identity293) and perhaps because of the particular demands of the domestic labour market (or the profession). However, it does not mean that the measure should not be subjected to eu scrutiny at all: there is an a prima facie breach of eu law, and the rule must thus be justified and comply with the principle of proportionality. In that regard, one could perhaps point out that the Netherlands also offers courses in Dutch (which is not taken into account for the Flemish ‘mirror requirement’). Moreover, particular professions have become so internationalised that English may very well be more suited as lingua franca. Academic freedom to develop new and innovative course programmes may very well be constrained to an unacceptable degree as a result of this set of rules. Finally, the combination of both a mirror requirement and a quota may very well be considered excessive in relation to the goal of promoting the Dutch language in higher education institutes. As such, it is doubtful whether the requirement could be justified. The above example is meant to illustrate that there is an opportunity for education suppliers to invoke the ‘free movement of students’ to challenge unduly restrictive national legislation. At the same time, it is recognised here that Member States may, of course, have legitimate reasons to restrict publicly funded higher education institutes in their freedom to simply cater to foreign students. This balancing act is one that will have to be explored in the future. 290 Article II.262(1) Codex Hoger Onderwijs. 291 Article II.262(2) Codex Hoger Onderwijs. 292 Article II.266 Codex Hoger Onderwijs. 293 Which the eu is bound to respect following Article 4(2) teu. See also Case C-379/87, Groener, ECLI:EU:C:1989:599, para. 18–20.

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3.3.1.2.4 Access to Education: Final Remarks Apart from the issues of scope, the access regime is also characterised by a high(er) standard against which the compatibility of measures in breach of eu law is assessed. This is in particular noticeable in how the Court addressed both the ‘legitimate aim’ and the assessment of the proportionality of the measure. The Court is much more invasive when it comes to prima facie establishing the ground for justification invoked by the Member States. In access cases, the presumption seems to be more strongly in favour of free movement and attempts at justification are viewed with more suspicion: the Court will intensely scrutinise the reasons invoked, their context and will demand a strong body of evidence on the part of the Member State to establish their claims.294 In contrast, in the regime which applies to study facilitating benefits, the Court seems to accord greater deference to the Member States in defining, as said above, the conditions under which the individual can be regarded as having a genuine link with (or be considered a quasi member of) the host Member State. As such, here the Court is primarily looking for a ‘reasonable’ argument, one that makes intuitive sense. Consider that in Bidar the Court accepted without real question the uks concern of the potential consequences for the student grant system should migrant eu students have unlimited access.295 While access cases rarely go beyond this first stage, if Bressol is any indication, the Court tends to commit the national court in the context of the principle of proportionality to a much broader balancing of the values at stake and identifies which elements in particular are important to take into account in this regard.296 Moreover, the Court also seemed to indicate there was some ‘core’ to the free movement of students which could not be transgressed upon (a ‘sufficiently wide access’ had to be maintained).297 In contrast, in e.g. Bidar and Förster, the Court assessed the proportionality itself and seems content to function as more of a watchdog, only intervening to curtail the discretion of the Member State where they cross certain lines. It is true that more recent cases have narrowed the discretion of the Member States in this regard somewhat, with the Court requiring the Member State to take a more holistic view in assessing the existence or absence of a genuine link. In addition, it has limited somewhat the freedom of Member States to choose appropriate genuine link indicators following Commission v Austria (student travel concessions). Overall, however, it remains the case that the Court is more ‘hands off’ in this area than as regards the legal regime applying to access. 294 295 296 297

Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 69–74. E.g. Case C-209/03, Bidar, ECLI:EU:C:2005:169, para. 54–55. Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 75–81. Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 79.

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3.3.2 Access to Study Facilitating Benefits in the Host Member State In this context, as pointed out, migrant eu nationals cannot rely on the ‘right of a visitor’ but must be recognised as a ‘quasi-member’ of the host Member State community in order to be entitled to a degree of solidarity. A genuine link criterion therefore, in essence, performs a balancing act between the degree of membership of a community that may be required in order to be entitled to the benefits produced by that community. The greater, more extensive or more burdensome the benefit, the stronger the membership credentials, in principle, need to be. As argued above, integration may come about in two ways within the eu context: contractual recognition and ­recognition-through-progressive-integration. The former, as said, concerns the position of students who are also economically active (or are linked to individuals, e.g. parents, who are active): this category is extended benefits such as student grants on the same conditions as host Member State nationals due to their contribution to the host society. In contrast, the latter progressively establish their right to be recognised as a quasi-member of the host society. Member States should in principle be free to decide the appropriate standard of integration necessary in this regard (to define who is entitled to quasi-membership). However, at the same time, this freedom should not be unlimited in nature: in the light of eu citizenship and the context of a European Union in which the destiny of the Member States is at least partly bound up together, certain restrictions in this regard are appropriate: the standard chosen must be reasonable and logically linked to the benefit the distribution of which is at issue (substantive requirement), and in terms of assessing the link between the individual and the host State, a wide range of clear and transparent ‘indicators’ (a proxy measure to objectively assess a relatively abstract connection) should be used with a view to broadly and holistically assessing the degree of attachment to the host society (procedural requirement). 3.3.2.1 Genuine Link Requirements: The Degree or Intensity of the Link A first point relates to the substantive criterion. While it is true that Member States in principle enjoy a wide margin of appreciation in deciding which ­criteria are to be used when assessing the degree or intensity of connection necessary to obtain a benefit,298 they are at the same time not fully free. In Commission v Austria (student travel concessions),299 the Court showed that it was willing to set limits to the discretion of the Member State in determining 298 Case C-103/08, Arthur Gottwald v. Bezirkshauptmannschaft Bregenz, EU:C:2009:597, para. 34. 299 Case C-75/11, Commission v Austria (student travel concessions), ECLI:EU:C:2012:605.

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the strength of the link that a Member State may require between itself and the eu citizen in order for the latter to be eligible, on the basis of eu law, for such a benefit. It ruled that a distinction has to be made between different kinds of social assistance claimed from an eu Member State by an eu citizen based on the nature and purpose of the benefit, and that the nature and purpose of the benefit in turn determined what degree of integration is appropriate.300 However, where it concerns student grants and loans, this review does not currently carry much ‘bite’. The Court (and the eu legislator)301 has traditionally regarded financial aid for study purposes as a benefit for which Member States could legitimately require an eu citizen to have demonstrated extensive integration. Under the reign of ‘residence-as-main-indicator-for-a-genuinelink’, the Court ruled in Förster, as seen, that a host Member State could require a student to have resided in its territory for a period of five years prior to being eligible.302 This ‘heavy’ reading was recently reinforced in Giersch, where the Court has suggested that, in the case of frontier workers, a minimum period of employment of five years prior to eligibility (for the child of the frontier worker) for portable financial aid for studies might be proportional.303 This was largely confirmed in Verruga, although the Court added that the Member State could not require the period of employment to be continuous.304 It is suggested here that it may be worth revisiting some of the established principles in this regard. First, is the principle of equal treatment as regards student grants and/or loans really effective in the context of free movement if that right is only obtained after five years of residence? In practice, after all, most degrees only last between four and five years. It is also not given, absent a right to export student grants and/or loans under eu law, that this lack – in terms of funding – is remedied by another Member State of the eu. Secondly, given that Member States are allowed to grant their own nationals immediate access to student grants and/or loans, on the basis of mere possession of nationality, it does raise the question what the value of ‘nationality’ is in that context. With the ruling in Prinz and Seeberger, it is clear that ‘nationality’ functions as a connecting factor through which to establish a genuine link between an individual and Member State of the eu. Now consider two  eu 300 Ibid., para. 59–65. 301 See Article 24(2) Directive 2004/38. 302 Case C-158/07, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep, EU:C:2008:630, para. 49–58. 303 Case C-20/12, Giersch, EU:C:2013:411, para. 80. 304 Case C-238/15, Bragança Linares Verruga a.o. v Ministre de l’Enseignement supérieur et de la recherché, ECLI:EU:C:2016:949, para. 55, 68–69.

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c­ itizens: one with the nationality of Member State A (person X) and one with the nationality of Member State B (person Y). If Member State A makes use of the system by which its own nationals (Person X) have privileged access to study aid provided by it (access solely by reason of nationality), this gives an indication as to the level of integration deemed sufficient by that Member State to obtain such aid. After all, mere possession of nationality does not necessarily guarantee a deep connection in practice.305 In such cases, it would be inconsistent and arguably should be incompatible with eu law if that same Member State were then to apply a heavy integration requirement for the eligibility of non-national eu citizens for its student grants and/or loans: the gap between person X and person Y in the example above cannot be extensive. Or put slightly differently: where nationality can (apparently justifiably) matter in the assessment of whether a genuine link has been established, that should not be taken to mean that the Member State is free to use different measuring sticks (one for own nationals and one for foreign eu citizens) for access to the same benefit. It would follow from this reasoning that those Member States that give privileged access to financial support for studies to their own nationals, purely and solely on the basis of their nationality, must be scrutinised as to whether the degree of integration they require from foreign eu citizens is unjustifiably heavy in comparison. Thirdly, the current heavy-handed nature of the Förster requirement of integration becomes apparent when contrasting it with cases involving other sorts of benefits. Where it concerned eligibility of Union citizens for reduced public transport fees for students, simple registration with a higher education institute seemed sufficient to show the requisite connection,306 although the Court apparently overturned this for public transport benefits included in the overall student grant and/or loan system.307 Similarly, where it concerned socalled ‘tideover allowances’ (a benefit covering the period between graduation and first employment), the Court seemed to consider the two year residence of the applicant, of which 16 months as a jobseeker, sufficient308 – thereby rejecting the criterion that the person in question should have had at least six years of secondary education. Where it concerned child benefits, the Court 305 The fact that nationality was named in conjunction with other factors by which a genuine link could be established suggests that indeed in some cases it may be necessary to ‘supplement’ the legal link of nationality. 306 Case C-75/11 Commission v Austria (student travel concessions), ECLI:EU:C:2012:605, para. 59–65. 307 Case C-233/14, Commission v the Netherlands (student travel concessions), ECLI:EU: C:2016:396. 308 Case C-367/11, Prete, ECLI:EU:C:2012:668, para. 40, 44.

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suggested that a criterion taking into account whether the person was engaged in ‘more than minor employment’ could be upheld, but struck down attempts by Germany at a stricter application of that criterion.309 In a case involving a benefit for disabled persons exempting them from tolls on Austrian highways, the Court suggested that the requirement of ‘ordinary residence’ in Austria as a precondition for eligibility was compatible with eu law, inter alia precisely because no minimum period of residence was attached thereto (a contrario suggesting that had this been so, it might have been disproportionate).310 Finally, in a series of cases involving job seeker’s allowances, the Court traditionally refers to a reasonable period of genuine workseeking as a lawful precondition prior to eligibility.311 The current stance of the Court as regards access to student grants and/or loans thus potentially leads to de facto exclusion of a large part of the student population from financial support for their studies abroad, gives undue weight to ‘nationality’ as a connecting factor and seems incongruent in the light of the case law vis-à-vis other benefits. This is regrettable. It may be wondered why the Court takes such a hands-off where it concerns student grants and/or loans: is the sensitive nature of these benefits really such as to warrant the current rigid system? Despite the wording of Directive 2004/38 and despite the apparent hegemony of that Directive following Dano,312 there is perhaps scope in the light of the objective of promoting student mobility in the eu as set out in Article 165 tfeu to review some of the established principles in this regard.313 3.3.2.2

Genuine Link Requirements: Proxies or Indicators Used to Establish the (Absence) of a Link The second point relates to the procedural requirement. Recent case law has criticised Member States who take too narrow a view of the factors or 309 Compare Case C-213/05, Wendy Geven v Land Nordrhein-Westfalen, ECLI:EU:C:2007:438, para. 25 et seq.; with Case C-212/05, Gertraud Hartmann v Freistaat Bayern, ECLI:EU: C:2007:437, para. 34 et seq. 310 Case C-103/08, Arthur Gottwald v Bezirkshauptmannschaft Bregenz, EU:C:2009:597, para. 35–40. 311 See Joined Cases C-22/08 and C-23/08 Athanasios Vatsouras and Josif Koupatantze v. Arbeitsgemeinschaft (arge) Nürnberg 900, EU:C:2009:344, para. 39; and Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, EU:C:2004:172, para. 70. 312 Case C-333/13, Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358, para. 61–64. 313 Admittedly, however, the Court recently seems very unlikely to go in that direction in the light of the recent turn to restrictiveness in the interpretation of Union citizenship rights.

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‘­indicators’ that can possibly link an eu citizen with a Member State.314 In particular, sole reliance on a single factor, such as the requirement to have resided in the Member State for a certain period of time, or to have a specific diploma, is liable to be ‘too exclusive in nature or [may] unduly favour one element which is not necessarily representative of the real and effective degree of connection between the claimant and this Member State, to the exclusion of all other representative elements’.315 In such cases, the Court will strike down the national measure for violating the principle of proportionality. As regards student grants and/or loans, the Court has emphasised in Prinz and Seeberger that: Although the existence of a certain level of integration may be regarded as established by the finding that a student has resided in the Member State where he may apply for an education or training grant for a certain period, a sole condition of residence, such as that at issue in the main proceedings, risks (…) excluding from funding students who, despite not having resided for an uninterrupted period of three years in Germany immediately prior to studying abroad, are nevertheless sufficiently connected to German society. That may be the case where the student is a national of the State concerned and was educated there for a significant period or on account of other factors such as, in particular, his family, employment, language skills or the existence of other social and economic factors. (…)316 As such, a wide range of factors must be taken into account when assessing the potential link between an eu citizen and the Member State at issue. What does this mean for the above position of the ‘Union citizen – default position’? On the one hand, from the quote from the Prinz and Seeberger case, it would seem no longer clear whether the Förster rule, whereby Member States can require a period of five-years residence prior to being eligible for student grants and/or loans, is still good law. On the other hand, Directive 2004/38 explicitly mandates that Member States may withhold eligibility for student grants and/or loans until the person in question has obtained a right 314 See for example Case C-503/09 Lucy Stewart v Secretary of State for Work and Pensions, EU:C:2011:500, para. 95; Case C-542/09 Commission v. the Netherlands, EU:C:2012:346, para. 86; Case C-367/11 Déborah Prete v. Office national de l’emploi, EU:C:2012:668, para. 31. 315 Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, ECLI:EU:C:2013:524, para. 37. See also Case C-503/09 Stewart, EU:C:2011:500, para. 95. 316 Joined Cases C-523/11 and C-585/11 Prinz and Seeberger, ECLI:EU:C:2013:524, para. 38.

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to permanent residence – which is normally acquired after five years of legal residence.317 The Dano case indirectly seems to resolve the debate in favour of maintaining the status quo. That case concerned an economically inactive Union citizen who applied for a minimum subsistence allowance. The Court held that: 59 Every Union citizen may therefore rely on the prohibition of discrimination on grounds of nationality laid down in Article 18 tfeu in all ­situations falling within the scope ratione materiae of eu law. These situations include those relating to the exercise of the right to move and reside within the territory of the Member States conferred by point (a) of the first subparagraph of Article 20(2) tfeu and Article 21 tfeu (see judgment in N., EU:C:2013:97, paragraph 28 and the case-law cited). 60 In this connection, it is to be noted that Article 18(1) tfeu prohibits any discrimination on grounds of nationality ‘[w]ithin the scope of application of the Treaties, and without prejudice to any special provisions contained therein’. The second subparagraph of Article 20(2) tfeu expressly states that the rights conferred on Union citizens by that article are to be exercised ‘in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder’. Furthermore, under Article 21(1) tfeu too the right of Union citizens to move and reside freely within the territory of the Member States is subject to compliance with the ‘limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’ (see judgment in Brey, C-140/12, EU:C:2013:565, paragraph 46 and the case-law cited). 61 Thus, the principle of non-discrimination, laid down generally in Article 18 tfeu, is given more specific expression in Article 24 of Directive 2004/38 in relation to Union citizens who, like the applicants in the main proceedings, exercise their right to move and reside within the territory of the Member States. That principle is also given more specific expression in Article 4 of Regulation No 883/2004 in relation to Union citizens, such as the applicants in the main proceedings, who invoke in the host Member State the benefits referred to in Article 70(2) of the regulation. 62 Accordingly, the Court should interpret Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004.318

317 See Article 16 of Directive 2004/38. 318 Case C-333/13, Dano, ECLI:EU:C:2014:2358, para. 61–64.

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As such, in this restrictive turn the Court seems to give absolute priority to Directive 2004/38 in terms of defining the limits and scope of the principle of non-discrimination on grounds of nationality. It follows that the Förster rule remains intact – Member States may continue to rely solely on a durational residence criterion in order to determine whether a person has the requisite genuine link to receive student grants and/or loans. In fact, the Förster criterion may even be considered strengthened. After all, Article 24(2) of Directive 2004/38 makes access to student grants and/or loans conditional on having obtained a right of permanent residence. This is normally obtained after five years of legal residence. In the equal treatment cases prior to Dano, the Court had always insisted on a broad interpretation of what constitutes ‘lawfully resident’: whether the residence right was derived from eu law, national law or some other source was irrelevant as long as the residence was legal.319 In contrast, where it comes to the question as to ‘residence’ within the meaning of Directive 2004/38 (in particular with respect to Article 16 of Directive 2004/38), the Court has interpreted ‘legally residing’ much more restrictively: it only includes periods of residence on the basis of Directive 2004/38 itself or its predecessors which it was designed to codify, revise and replace,320 excluding therefore other eu law instruments and periods of residence based solely on national law.321 Combined with the ruling in Dano, this means that the Förster ‘five years of lawful residence’ must now be taken to refer to the concept of five years of ‘legal residence’ within the meaning of Article 16 of Directive 2004/38. 3.3.2.3 The Future of Genuine Link Requirements The apparent inconsistence in the case law of the Court identified above is generally an undesirable development. On the one hand, there is a set of case law which explicitly tells Member States to be broad-ranging in their inquiry as to whether a Union citizen has established a genuine link. On the other hand, 319 See Case C-85/96, Martínez Sala, ECLI:EU:C:1998:217, para. 60–61 (international law constrained Germany from deporting mrs. Sala), Case C-456/02, Trojani, ECLI:EU: C:2004:488 (residence permit under national law), para. 43 and Case C-209/03, Bidar, ECLI:EU:C:2005:169, para. 46 (residence as person of ‘independent means’ under former Directive 90/364). 320 Case C-162/09, Secretary of State for Work and Pensions v Taous Lassal, ECLI:EU:C:2010:592, para. 29–40. 321 Joined Cases C-424/10 and C-425/10, Ziolkowski, ECLI:EU:C:2011:866, para. 31–50, Case C-529/11, Olaitan Ajoke Alarape and Olukayode Azeez Tijani v Secretary of State for the Home Department, ECLI:EU:C:2013:290, para. 36–47.

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the Court seems set to put Directive 2004/38 on a pedestal as the ultimate set of guidelines as to how Member States are and/or are not obliged to treat foreign Member State nationals. There is no real need for this strict interpretation of the Directive. A-G Mazàk had suggested to the Court in Förster that the five-year requirement could work as a sort of outer limit of where the Member State could still refuse the recognition of a genuine link.322 This would do greater justice to the overall thrust of the Directive in favour of progressive integration (rather than a binary ‘permanent resident’ and ‘non-permanent resident’ construction). At the same time, it is recognised here that forcing administrative authorities to engage in fully individual assessments, taking in to account all elements of their integration, may put a great strain on their resources.323 More importantly, lack of clear and transparent criteria for the assessment of genuine links, in particular in the context of the sometimes muddy waters of administrative practice, may undermine legal certainty and result in less awareness of eu citizens of the rights they may be able to legitimately claim in a foreign Member State.324 Consider the current example of Austria, in which the Studienförderungsgesetz 1992 provides in Article 4(1) that migrant eu nationals will be granted Austrian student grants where that is required by eu law (a ‘renvoi’ clause). Such a clause handily saves the legislator from having to go through the lengthy process of amendment as the case law of the Court of Justice develops, but at the same time puts the main onus to determine what eu law requires in this context on the agency responsible for the implementation of the law. It will then depend on the make-up of the agency and the competency of its staff whether it is capable of determining the correct application of eu law in this regard. Moreover, and perhaps more cynically, compliance with eu law or a progressive interpretation thereof, especially where this leads to eligibility for a great number of foreign students and thus more costs, may not be foremost on the agenda of an administrative agency faced with increasing pressure to balance budgets. Finally, in casu the website of the student grant authority only sets out very broad and simple guidelines as to when it will grant student grants under eu law.325 This makes it difficult for an external examiner 322 Opinion of A-G Mazàk in Case C-158/07, Förster, ECLI:EU:C:2008:399, para. 129, 130. 323 Although the Court classically is not sympathetic to such administrative burdens: Case 104/75, Adriaan de Peijper, Managing Director of Centrafarm bv, ECLI:EU:C:1974:115, para. 18. 324 In a more general sense, legal certainty is an important precondition for effective ‘rights’ (and their limits) and the freedom to act, see D. Chalmers, The Dynamics of Judicial Authority and the Constitutional Treaty, Jean Monnet Working Paper 5/04, p. 20. 325 See http://www.stipendium.at/studienfoerderung/studienbeihilfe/wer-hat-anspruch/ last visited 07.04.2017.

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to determine whether administrative practice is in accordance with eu law as well as for students to know their rights and when they can invoke them without consulting an expert. In the light of such practices, one can imagine that uncertainty would be increased even more if the Court were to insist on individual assessments only. A final point against solely relying on individual assessments is the degree of arbitrariness and denial of (formal) justice that may result from treating each case separately and without reference to (generalisable) principles.326 As such, it would seem a ‘best-of-both-worlds’-approach is perhaps the most appropriate:327 a set of general, widely disseminated and alternative indicative criteria (e.g. specific periods of residence, having obtained a secondary education diploma in the host state) used as a basis for initial assessment and, upon application, an individual assessment considering among other elements family relations, past periods of employment or non-recent residence, and/or perhaps (provision of proof of) being able to speak the language of the host State or participation in certain social/cultural institutions. Combined, these criteria should lead the Member States to a fair assessment of the link of the eu citizen with the host State and society and thus his or her entitlement to solidarity. This more integrative, wide-ranging approach is to be preferred and is more in line with the Court’s recent case law. Moreover, such an approach would give real effect and meaning to Union Citizenship as the fundamental status of the nationals of the Member States of the eu also do greater justice to the right of equal treatment that is intrinsic to that status.328 Access to Study Facilitating Benefits for Study Abroad: Portable Student Grants and/or Loans Since it is unlikely that the Court will retreat from its position in Förster, as recently confirmed in Dano, the lack of a right of export of student grants and/or loans becomes even more problematic. As seen above, Member States are not obliged to provide for portable student financing, only where that choice is first made is there then a condition to comply with eu law. As argued before, 3.3.3

326 C. O’ Brien, ‘Real links, abstract rights and false alarms: the relationship between the ecj’s “real link” case law and national solidarity’, 33(5) European Law Review (2008) 643, p. 661. She also points out that the Court-made ‘policy’ is litigant-led, with the results that legal developments in social welfare may be prompted by individuals that are already articulate, affluent and can afford sound legal advice rather than by the less fortunate which social welfare is in the end designed to protect. 327 Recently also endorsed by A-G Sharpston in her Opinion in Joined Cases C-523/11 and C-585/11, Prinz and Seeberger, ECLI:EU:C:2013:90, para. 106. 328 See the formulation in Case C-184/99, Grzelczyk, ECLI:EU:C:2001:458, para. 31.

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this means that there is a ‘gap’ in responsibility. There is no Member State responsible by default for providing the Union citizen funding when he or she seeks education abroad. This state of affairs is undesirable:329 1.

2.

3.

First, there is nothing inherently in the nature and purpose of such aid that precludes exportability. In the end, it is about enabling individuals to attend higher education – but there is no particular reason why this needs to be a course of study provided on the territory of the Member State providing the aid. In fact, as seen, there are good reasons to encourage mobility, not least the possibility of a better matching between the interests and the cognitive ability of the prospective student and the courses on offer.330 Secondly, creating such a right of export would not create serious risks for the financial sustainability of a student grant and/or loan scheme. Provided that the allowance amount is the same, it is financially neutral as to whether the student studies ‘at home’ or abroad. Nor is it likely that the introduction of portable student grants and/or loans, by itself, would attract more customers – in addition to those already eligible – for the system: considering the relatively strict integration standards sanctioned by the Court, set out above, the incidence of social tourism purely for the purpose of claiming portable student grants and/or loans must be considered a relatively limited risk. Finally, the current approach seems to be inconsistent with other case law of the Court. In the end, however it is approached, it is clear that in a situation whereby student grants and/or loans are not portable, an individual is put at a disadvantage (foregoes a financial benefit) as a result of having exercised free movement rights (with a view to study in another Member State). Classically, this amounts to a violation of Article 21 tfeu, due to the chilling effect it may have on the decision to exercise free movement rights.331

329 Jørgensen in particular supports a right of export of student grants and/or loans, arguing that even from a (territorially based) welfare state perspective, it is the responsibility of a  Member State to ‘provide’ for citizens that have contributed to it: S. Jørgensen, ‘The Right to Cross-Border Education in the European Union’, 46(5) Common Market Law ­Review (2009) 1567, 1567, 1578–1581. Arguably, this would be the case where an eu citizen can prove a genuine link with that Member State. 330 See A. Findlay, ‘An Assessment of Supply and Demand-side Theorizations of International Student Mobility’, 49 International Migration (2010), p. 162. 331 Joined Cases C-11/06 and C-12/06 Morgan and Bucher, ECLI:EU:C:2007:626, para. 26–32. See for a similar point P. Nicolaides and S. Shamskho, ‘Compatibility of Dutch School

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As such, it may be questioned whether the Court’s ruling that student grants and/or loans need not be exportable as a matter of eu law is fortuitous in this regard. It is submitted here that this ruling should be reconsidered as a matter of law. In terms of the Member State being allowed to circumscribe the circle of beneficiaries of such grants, it was already seen above that the Court gave the Member States some tools in this regard, in principle revolving around determining whether the recipient of the grants can be said to be connected to the Member State in question. This would seem an acceptable manner in which the allocation of responsibility for the free moving student could be resolved, as long as the assessment is broad ranging and takes into account the multitude links that an individual may have with a Member State. However, one particular point should be made as regards the fact that the Court in Giersch suggested that a ‘return obligation’, complete with measures for its enforcement, for students provided with exportable student grants would be allowed. Indeed, the Court found that: With regard to the possibilities open to the Luxembourg legislature, it can be observed, in line with the Commission’s submission at the hearing, that where the aid granted consists in, for example, a loan, a system of financing which made the grant of that loan, or even the outstanding balance thereof, or its non-reimbursement, conditional on the student who receives it returning to Luxembourg after his or her studies abroad in order to work and reside there, could attain the objective pursued (…).332 This position was confirmed in Verruga.333 Here we have moved from the realm of seeking to determine the boundaries of Member State solidarity (which lacks an element of direct reciprocity) towards an investment logic: ­maintenance aid for study purposes is only provided (or only provided under favourable conditions) as a quid pro quo for the expected contribution of the person so subsidised to the economy of the subsidising Member State. This possibility, and its underlying logic, should be rejected in the strongest possible terms. First, at a fundamental level, it is incompatible with and goes counter to the idea of the (Union) citizenship conception of the student. We already saw Benefits with eu Law’, 17(4) Maastricht Journal for European and Comparative Law (2010), pp. 442, 444–448. 332 Case C-20/12 Giersch, ECLI:EU:C:2013:411, para. 79. See also para. 57–58. 333 Case C-238/15, Verruga, ECLI:EU:C:2016:949, para. 62.

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above that the mobility of students may contribute beyond simple economic terms to a more cohesive European society, characterised by a shared sense of membership and identity, which is capable of defending European values in trying times. In this context, a degree of solidarity may simply be expected of Member States in the light of the principle of loyal cooperation and the idea(l) (although, admittedly, increasingly contested) of an Ever Closer Union. A eusanctioned return obligation, as an act of investment, clashes with this paradigm and undermines a view of the student as something more than aspiring production factor. Secondly, the return obligation similarly violates the central tenets of an internal market characterised by free factor movement. What the Court endorses in Giersch is the return of the student for whom an investment was made in order to be available to the national labour market: it was apparently justified to disadvantage the student taking up employment abroad by providing student grants under less favourable conditions. This is surely a direct contradiction to the free movement of workers, the essence of which is that a Member State national should be able to move to any Member State where the demand for his skills is highest. It in fact amounts to the repartitioning of the European (highly skilled) labour market into national labour markets. Finally, there is a strong moral aspect, as well as several practical elements to the story: if financial support is provided to a student, does this then entitle society, as a right, to benefit from this person’s labour and/or presence? This buying of a ‘stake’ in a person’s life and productive capacity seems, to put it mildly, highly questionable.334 Moreover, it has problematic social justice implications, as the obligation is regressive in nature: it is most likely to affect those needing the financial support the most (lower to middle class students). This damaging effect is reinforced if students are in essence forced to look across borders because the domestic higher education system does not offer the desired course of study (as is assuredly the case in Luxembourg).335 More practically, one may wonder how long the student in question is required to be ‘available to the national labour market’? Would this be linked to the number of years that he or she received financing or the amount of the financing? Either way, this may generate a stronger lock-in effect for the student as regards an initial study choice for fear of generating a greater obligation towards the home State in this regard, which is quite separate from or in addition to any repayment obligation of student loans that may exist in any case. In addition, 334 See S. Dumitru, ‘Skilled Migration: Who Should Pay for What? A Critique of the Bhagwati Tax’, 14(1) Diversities (2012) 9, pp. 13–16 for an extensive discussion. 335 See also Case C-20/12, Giersch, ECLI:EU:C:2013:411, para. 60.

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what happens if the national labour market is saturated or the particular skills of the student are not in demand? Is the student then forced to choose between unemployment or a financial penalty? Overall, it would seem that thereare good reasons to support a right to export student grants and/or loans from a legal point of view.336 Member States should, in addition, be able to condition such portable grants in order to ensure that potential recipients are sufficiently linked to its society. However, the suggestion by the Court of a return obligation is to be rejected in the strongest possible terms as an ill-advised mechanism. A Member State would do better in pursuing labour market policies designed to attract foreign talent (the carrot) rather than trying to shepherd its stray students back to their home by means of a stick. 3.4 Conclusion This chapter aimed to show that the free moving student within the European Union is primarily viewed, in legal terms, as a Union citizen who has a very particular legal regime applying to him or her – indeed, in Bressol the Court even seems to designate the mobility of students as a fifth freedom337 with more or less its own set of rules. There are few categories of Union citizens who have a similarly extensive body of case law applying to them beyond those relating to the classic four freedoms. Nonetheless, while ‘Union citizens’ students do form a cohesive group overall, one should not lose sight of the variation within it: three types of students were identified above. As a point of departure, the Union citizen-student is entitled to a right of residence and access to education abroad on equal terms with the nationals of the Member State of study. However, the conditions of residence vary based on whether the student is simply a Union citizen, a student-worker or a family member of an economically active Union citizen. More telling becomes the distinction that addresses access to study facilitating benefits: students lacking worker or family member status have very few rights here, whereas student-workers have immediate access to (portable) benefits in the state of employment. Finally, the mobility of students is truly about their movement as Union citizens qua citizens: the case law has progressively disconnected such free 336 From a policy perspective, however, and as a means to truly promote student mobility, its usefulness may be doubted however. See more extensively Chapter 5. 337 Case C-73/08, Bressol, ECLI:EU:C:2010:181, para. 79.

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movement from its purported economic benefits. This may be seen in all areas discussed. First, as regards residence, the student is subject to very lenient requirements in terms of sufficient resources and comprehensive medical insurance. The Court has even emphasised that where these requirements are not fulfilled, this should not lead to automatic deportation of the student. The referral by the Court to the duty of financial solidarity with the nationals of the Member States in Grzelczyk is significant in this regard. The protection against expulsion is not based on the expected future economic contribution (which would not be an issue of solidarity, but rather of long-term reciprocity) or even past contributions (the fact that Grzelczyk had supported himself by working for a period of three years was not mentioned in this context). As such, even where the ‘net contribution’ in the host State of the student is not neutral (which the ‘sufficient resources’ requirement is meant to guarantee) but negative in nature, Member States are still to be lenient with the student, all the more so because the student ‘burden’ is thought to be limited and transitory in nature. Secondly, this finding is buttressed by the change of reasoning that may be witnessed in the ‘access’ cases. As seen above, in Gravier the Court was still careful to make a link with the classic free movement rights in order to support the finding that restrictions relating to access to education/vocational training fell within the scope of the Treaty. While Bressol, through Commission v Austria (diploma requirements), at first sight seems to ‘import’ that reasoning, a shift is nevertheless noticeable. As was noted above, in both cases the Court only pays ‘lip service’ to Gravier, mentioning it as persuasive authority to support its finding that migrant eu nationals enjoy access to higher education under the same conditions as host Member State nationals. In particular, in Bressol the main reasoning turns around the free movement of eu citizens (and the obstacles thereto) and it has ceased to mention the link between students and the free movement of workers as a justification for its progressive case law in this regard. But that case is of further significance. The core of the argument submitted by Belgium was an alleged negative effect on the (local) labour market for healthcare professionals as a result of student mobility: (non-resident) mobile students were not expected to turn into mobile workers and due to their large numbers they were threatening educational quality crowding out students who were likely to take up a position in the French-speaking community of Belgium. If the free movement of students still had some economic core to it (educational mobility now, highly skilled mobility later), such a claim, if properly established, would go directly against the raison d’être of student mobility. If a Member State could prove a disconnect between student mobility and

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‘economic gain’, the former loses its purpose. The Court, tellingly, did not go down that route and stressed that even if Belgium could establish the existence of a genuine risk in this regard, the national court was still required to balance, in the context of the principle of proportionality, the principle of free movement of students (the essence of which was equal treatment as regards access to education) against measures adopted to address the concerns for a future shortage of healthcare professionals and/or the quality of the education system. This confirms the importance of student mobility for its own sake, even if it has net negative financial consequences for the receiving Member State. Thirdly, in the case law of the Court as regards the study facilitating benefits, the main point of departure is the balancing act between the degree of membership of a community and the benefit claimed (produced by that community). There too, the legal principles are not primarily informed by a quid pro quo relationship but rather about assessing the different ways a Union citizen may be connected to a Member State – which includes a wide range of familial and social elements. Indeed, even the student-worker, who contributes directly to the economy of the host Member State, as a phenomenon is unlikely, due to the limited nature of the part-time work, to contribute sufficiently to the host Member State to offset the educational benefits bestowed upon him or her (and/or his fellow non-economically active students).338 The fact that it was shown in Chapter 2 that student mobility is likely a positive contribution to the receiving Member States due to ‘sticky students’ (who work there after completion of their students) is of course significant, but not as such part of the legal reasoning that currently underpins the rights of the mobile students.

338 cpb Notitie of 18 April 2012, The economische effecten van internationalisering in het hoger onderwijs, Report for the Ministry for Education, Culture and Science, pp. 29–31, available at http://www.cpb.nl/publicatie/de-economische-effecten-van-internationalisering-het -hoger-onderwijs last visited 07.04.2017.

chapter 4

Student Mobility from a National Perspective: Country Studies There seems to be much confusion as regards the costs and benefits of student mobility. In Chapter 2, it was argued that, on balance and viewed from the long-term, student mobility has the potential to make a significant net positive contribution. Notwithstanding this, concerns remain at the national level. As such, the purpose of this chapter is to look at student mobility from a national perspective. In particular, it seeks to understand and describe the systems of higher education financing (the ‘supply side’) operated by the Member States as well as the study financing systems providing grants and loans to students enrolled in a course of study (the ‘demand side’). This is a worthwhile exercise in order to gain insight into the potential ‘impact’ of foreign students on such a system and with a view to consider what respecting the primary competence of the Member States to organise their higher education system in accordance with their philosophies and priorities would entail – both points that will be considered at length in the next chapter. For this exercise, four countries have been selected: the Netherlands, Belgium (Flanders), Sweden, and the United Kingdom (England). These are interesting countries to study as they represent points on a spectrum: from a tuition-free, generous student support system in Sweden to education at cost price and non-subsidised loan system in the uk (England). The system of ­Belgium (­Flanders) is closer to Sweden but emphasises the responsibility of the family unit to provide education to the student-child (as will be seen below) rather than the state, whereas the Netherlands in turn has elements from all three systems but is recently turning towards a more investment-based approach followed in uk (England). Each of the countries, moreover, seems relatively sceptical towards the ‘foreign eu student’. In the Netherlands and Belgium (Flanders) there are increasingly critical voices that question whether providing education in particular to German students and Dutch students respectively is sustainable (in light of the fact that the tuition fee does not cover the full cost).1 The uk (England) is seeking to further restrict access of 1

1 See e.g. E. Heuts, interview with Ferdinand Mertens (ex-public servant at the Ministry for Education, Culture and Science), Transfer 10 April 2011, pp. 8–10 and De Standaard, ‘Nederlanders halen diploma op Vlaamse kosten’, of 17 September 2012.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344457_005

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eu ­students to student loans in a bid to reduce expenditure on maintenance support and amid fears that such loans may not be paid back.2 Only Sweden seems to have no particular qualms, despite having one of the most generous systems. It is also the only country of the four which has not been involved in a case before the Court of Justice as regards discriminatory access requirements and/or as regards the conditions under which student grants are provided. The others are frequent violators.3 A second purpose of this chapter is, therefore, to critically analyse the conditions for higher education access as well as the conditions under which student grants and loans are provided to (migrant) eu citizens to see whether they comply with eu law. As will be seen, none of the Member States can be said to comply fully with eu law in this area, which is at the very least a worrying trend. 4.1

The Tertiary Education System of Belgium (Flanders): Issues of Financing and Student Grants

Following the division of competences set out in the constitution of Belgium, the Vlaamse and Waalse Gemeenschappen are competent as regards the organisation of (higher) education within their respective territories.4 Here, only the Flemish higher education system will be discussed. In terms of the educational system in place, the situation is as follows, in broad outline. 4.1.1 Background: The Organisation of the Education Sector The first lager onderwijs (primary education) cycle lasts six years and is intended for children aged six (compulsory school age) to twelve. After this cycle, ­pupils attend the secundair onderwijs (secondary education) until the age of eighteen. The first two years are, in principle, non-differentiated in nature; after this first stage, pupils enrol in one of four ‘streams’ or specialisations: g­ eneral, 2 3 4

2 Jack Grove, ‘eu student support targeted under government plans’ Times Higher Education of 1 September 2014, available at: http://www.timeshighereducation.co.uk/news/eu-studentsupport-targeted-under-government-plans/2015510.article last visited 07.04.2017. See also: J. Petre, ‘Number of eu students in Britain is at a record high – and we lend them £100 million to pay their fees’, Daily Mail of 8 June 2013 available at: http://www.dailymail.co.uk/news/ article-2338206/Number-EU-students-Britain-record-high--lend-100million-pay-fees.html last visited 07.04.2017. 3 See the case law cited in Chapter 3. 4 Article 127 Belgian Constitution.

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technical, vocational, or art oriented.5 However, notwithstanding these different orientations, any diploma of secondary education in principle entitles a pupil to enrol in tertiary education,6 which in Flanders consists of two types of institutions: hogescholen (referred to as colleges of higher education in the diagram above) and universities.7 Hogescholen offer professionally-oriented programmes in areas such architecture, healthcare, industrial science and technology, biotechnology, art etc.8 and are generally tasked with providing practice-oriented education9 focussing on the application of academic, artistic and scientific knowledge.10 A degree offered at a hogeschool normally lasts three years11 and leads to the title of bachelor.12 Universities provide academicallyoriented programmes13 and are generally tasked with providing education with a view to contributing to the general shaping of the ­individual and to prepare that individual for independent academic scholarship or the application of academic and scientific knowledge.14 A bachelor degree offered at university level typically lasts three years,15 while a master lasts at least one year.16 Finally, there exists so-called bachelor-after-bachelor (after a p ­ rofessionally-oriented bachelor) programmes, master-after-master programmes and other forms of post-graduate degrees, which typically offer students further specialisation and an opportunity to deepen their knowledge and competence after having obtained their first bachelor or master.17 4.1.2 Principles of Higher Education Funding The overall framework in terms of funding higher education in the Flemish Community is set out in Chapter 3 of the Codex Hoger Onderwijs. For financing 5 6 7 8 9 10 11 12 13 14 15 16 17

5 6

7 8 9 10 11 12 13 14 15 16 17

Ibid, p. 12, 23ff. See Article II.178 Besluit van de Vlaamse Regering tot codificatie van de decretale bepalingen betreffende het hoger onderwijs, Belgisch Staatsblad 27.02.2014 (as amended). ­Hereafter: Codex Hoger Onderwijs. See Article II.18 Codex Hoger Onderwijs. Article II.71 Codex Hoger Onderwijs. Article II.18 (2) Codex Hoger Onderwijs. Article II.58 (3) Codex Hoger Onderwijs. Article II.64 (2) Codex Hoger Onderwijs. Article II.59 Codex Hoger Onderwijs. See for a list Article II.73 Codex Hoger Onderwijs. Article II.58 (4) Codex Hoger Onderwijs. Article II.64 (2) Codex Hoger Onderwijs. Article II.65 (2) Codex Hoger Onderwijs. Education in Flanders: A broad view of the Flemish Educational landscape (Agentschap voor Onderwijscommunciatie, 2008), pp. 35–36.

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purposes, a distinction is made between so-called ‘ambtshalve geregistreerde’ and ‘niet-ambtshalve geregistreerde’ higher education institutes:18 only the former are eligible to receive government financing19 and are listed in Articles II.2 and II.3 Codex Hoger Onderwijs, while the latter are privately financed higher education institutes that offer accredited courses.20 There is no (specific) procedure to become a new ambtshalve geregistreerde institute (and thus become eligible for financing); rather such institutes are created by law at the discretion of the Flemish Parlement.21 Article III.2 of the Codex Hoger Onderwijs provides that the Flemish Community shall contribute annually to the financing of the functioning of the hogescholen and universities (called a ‘werkingsuitkering’). Such financing is meant to cover the provision of education, conduct of research, services both academic and ‘for society’, investments, (payment of) loans and costs related to administration (including buying relevant equipment, furniture etc.) of the institutes.22 In terms of actually determining the contribution by the Flanders community, three lines of funding are distinguished:23 – Hogescholen receive a basic education contribution (termed ‘onderwijssokkel’) and a variable education contribution (‘variabel onderwijsdeel’). – Art schools at hogeschool level receive a similar combination of a basic contribution and a variable contribution.24 – Universities receive a basic education contribution, a variable education contribution and contribution for research consisting of a basic contribution (‘onderzoekssokkel’) and a variable contribution (‘variabel onderzoeksdeel’). The relevant law does not in itself specify that higher education institutes are entitled to particular amount of funding in absolute terms; rather they compete among each other for funding from the general higher education budget. Students, in part, also contribute to the funding of higher education institutes 18 19 20 21 22 23 24

18 19 20 21

22 23 24

See Article II.1 and II.6 Codex Hoger Onderwijs. Article II.4 jo. III.1 Codex Hoger Onderwijs. See II.6 Codex Hoger Onderwijs. Following the competences to do so referred to in Article 127 Grondwet België. See for example Wet houdende de oprichting en de werking van het Limburgs Universitair Centrum, Belgisch Staatsblad 10.07.1971 (then still created by the Belgian national parliament); now Universiteit Hasselt: Article II.2 (2)(b) Codex Hoger Onderwijs. Article III.2 Codex Hoger Onderwijs. See Article III.5 Codex Hoger Onderwijs. Funding principles for this type of education will not be discussed in detail but follow the principles of funding for hogescholen.

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through the payment of the so-called studiegeld.25 The principles of both private and public funding will be discussed next. 4.1.2.1 Private Funding: Tuition/Enrolment Fees A student enrolled in higher education in the Flanders community is required to pay the studiegeld, with the relevant principles as regards payment defined in the Codex Hoger Onderwijs where it concerns the funded institutions (the ambtshalve geregistreerde instellingen).26 A first basic distinction is made between eu/eea nationals (including Belgian nationals) on the one hand and tcn on the other. The former may only be charged in accordance with the provisions set out in the Codex; as regards the latter category the board of the higher education institute is in principle left free to set the level of the studiegeld.27 In terms of the rules set out by the Codex, Article II.208 distinguishes ­between a fixed amount to be paid by the student and a variable amount proportional to the number of study points subscribed to by the student. For the academic year 2016–17, the fixed amount is set at €230 and the variable amount per study point is €11.28 For a standard enrolment of 60 study points, a student thus pays €890 per academic year. The variable amount can be increased to €22 (total) for students who do not have insufficient leerkrediet29 (translated as ‘learning account’30 or a study credit account). This leerkrediet is a mechanism whereby each student is allocated a certain number of study credits (140) that he or she can allocate in (Flemish) higher education. Every time a student enrols in a course component, he or she loses credits to the amount of the study points that the component represents. When the student obtains a satisfactory result for the component, the study points ‘used’ for that course are returned the student (and can thus be used again).31 When these points are depleted, 25 26 27 28 29 30 31

25 26 27

See Article I.3 (64) Codex Hoger Onderwijs. See Article II.207ff Codex Hoger Onderwijs. Article II.215 Codex Hoger Onderwijs. It should be noted that certain types of tcn nevertheless fall within the scope of the provisions of the Structuurdecreet regulating the tuition fee, including those who have a right to permanent residence, have lawfully resided for 12 months in Flanders on the basis of a residence permit granted for other reasons than to follow education or work (or a family member of such a person), or have certain asylum or subsidiary protection status. 28 Article II.209 Codex Hoger Onderwijs. 29 Article I.3 (40) Codex Hoger Onderwijs. 30 See http://www.kuleuven.be/learningaccount/ last visited 07.04.2017. 31 Article II.203 Codex Hoger Onderwijs.

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a student will be charged the higher variable fee (and may, in addition, be refused enrolment into (new) bachelor and/or master programmes32). 4.1.2.2 Public Funding: The werkingsuitkering As seen, the werkingsuitkering is composed of a contribution towards education for hogescholen and a contribution towards education and research for universities. Chapter 3 of the Codex lays down a fixed budget for financing purposes which is indexed according to the principles set out in Articles III.5 and III.6. Therefore, the higher education institutes compete for funding within a budgetary framework (rather than having an inherent claim to a certain amount of funding e.g. per student). The main principle governing allocation of public funding for education is that such funds follow the student. The main preconditions to receive financing as a higher education institute for a student are as follows:33 – Eligible courses: only students enrolled through a ‘diplomacontract’34 in a bachelor or master course listed in the Hoger Onderwijsregister35 are eligible for government financing. Certain conversion, ‘step up’ and other special courses (or combinations) are also eligible. – Nationality criteria: only students with an eu/eea nationality ‘count’ towards funding; tcn may also count towards funding depending on whether they reside on the basis of certain (enumerated) residence permits.36 – Positive balance as regards the leerkrediet: on the public financing side, only students with a positive balance in their study credit accounts will be counted for the purposes of funding (which acts as a stimulus for higher education institutes to promote graduation of students). 32 33 34 35 36

32 33 34

Article II.205 Codex Hoger Onderwijs. See III.3 Codex Hoger Onderwijs. Contract concluded between the student and the higher education institute for the purpose of completing a set of courses leading to the award of a degree – See I.3 (20) Codex Hoger Onderwijs. See further for an explanation http://www.vvs.ac/contracttypes last ­visited 07.04.2017. 35 See http://www.hogeronderwijsregister.be/home last visited 07.04.2017. 36 See Article III.3 Codex Hoger Onderwijs for a list. In principle, higher education institutes in Flanders will receive funding for tcn where they have a right to permanent residence, have lawfully resided for 12 months in Flanders on the basis of a residence permit granted for other reasons than to follow education, or work (or a family member of such a person), or have certain asylum or subsidiary protection status.

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Once it is has been determined that a higher education institute is eligible to receive funding for a certain student, actual allocation of the available budget is done on the following principles (it will be reminded that hogescholen and universities have separate lines of funding for which they compete, but the principles of this competition are the same). Funding for education consists of two components: 1.

2.

37 38 39 40

37

38 39

40

The ‘onderwijssokkel’ (basic education contribution) whereby a fixed sum is divided between the hogescholen and universities respectively degressively37 proportional to the number of credits for which students enrol (rather than obtain/complete).38 A variable education contribution which is divided up between the institutions proportional to their financieringspunten (points counting towards financing). These points are allocated to an institute based on the following elements:39 a. Points based on initial enrolments in bachelor courses: an institute is allocated points parallel to the amount of study points enrolled/subscribed for up until the student in question has obtained his first 60 points in one course of study. b. After the student has obtained 60 points, the institute only receives points for each subsequent study point obtained (by means of a successful examination) by that student (rather than points he or she enrolled for). c. Points based on diploma’s awarded: 30 points are allocated to the higher education institute for each diploma awarded to a student who has obtained at least half the necessary study points to be awarded such a diploma at that institute. d. Correction mechanisms: points obtained by students in certain courses are multiplied (e.g. a study points obtained in medicine).40 For example, if a university has students enrolled for 360 000 student credits (6000 full time students), each credit is multiplied by three for the purpose of competing for funding. If a university has students enrolled for 720 001 credits, no correction is made. See further III.9 (5) Condex Hoger Onderwijs. Article III.9 Codex Hoger Onderwijs. Thus, a full-time student who enrols for 60 points counts for ‘more’ than a part-time student enrolled for 30. Article III.11 Codex Hoger Onderwijs. For further details, see L. de Kock and N. Vercruysse, ‘De financiering van het hoger onderwijs in Vlaanderen’, 4(4) Bulletin de documentation (2009) 91, p. 114ff. Article III.19 Codex Hoger Onderwijs.

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­Moreover, points obtained by certain types of students (disabled students, student receiving certain financial support based on need and (certain) student-workers)41 are multiplied by a factor of 1,5. In terms of the data used to calculate the elements referred to above, it should be mentioned that these have a significant ‘lag’: in order to determine the distribution of the contribution by the Flemish Community in financial year t (e.g. 2014), the study credits and financieringspunten collected by the higher education institutes in the academic years t-7/t-6 until t-3/t-2 are used (in the example: 2007–2008 until 2011–2012).42 4.1.2.3 Public Funding: Research Funding for research: In terms of funding for research, the two main factors determining the proportion of funding allocated to a university in the context of the onderzoekssokkel are the number of doctoral diplomas awarded and the number of publications obtained by the university in question.43 The division of the available budget is again degressively proportional (e.g. the first 65 doctoral degrees awarded and the first 600 publications obtained are counted thrice44). For the variable research contribution, the determinative elements are the number of bachelor and master diplomas awarded (excluding any postinitial bachelors or masters), the number of doctoral diplomas awarded and the publications and citations obtained.45 Moreover, a university also gets a greater share of this variable budget if it promotes ‘mobility and diversity’, in particular by hiring academic personnel with a doctoral degree awarded by another university, personnel that has not worked in a Flemish subsidised higher education institute for three years in the preceding five years or academic personnel of female gender.46 4.1.3 Principles of Funding Student Participation in Higher Education The Flemish rules on maintenance grants for study purposes are found in the Decreet betreffende de studiefinanciering van de Vlaamse Gemeenschap 41 42 43 44 45 46

41 42 43 44 45 46

Article III.12 (4) Codex Hoger Onderwijs. Article III.7 jo. III.12 Codex Hoger Onderwijs. Article III.20 jo. III.21 Codex Hoger Onderwijs. Article III.21 (2–3) Codex Hoger Onderwijs. Article III.22 (1–3) Codex Hoger Onderwijs. Article III.22 (4) Codex Hoger Onderwijs.

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(­hereafter dsfvg).47 This decree regulates financial support for (families with) pupils enrolled in primary and secondary education48 as well as support for students49 enrolled in tertiary education.50 The prepatory documents indicate that the main goal of the dsfvg is to support the ‘democratisation’ of education, meaning to ensure broad participation at all levels through the provision of financial support to persons where education weighs heavily on the family budget.51 As before, the focus will be on the situation of the student rather than that of pupils at a lower level of education. In principle a person is entitled to a studietoelage for two bachelors and a master (in addition to some other specific courses).52 The student finance so provided is a grant.53 4.1.3.1 The Rules for Eligibility in the dsfvg The Flemish rules on student grants set out three main criteria in order to determine eligibility: a student must fulfil nationality, financial and course requirements.54 Nationality requirements. The dsfvg provides in Article 9 (1) that Belgian nationals are inherently eligible for maintenance grants for study purposes. By way of exception, however, eligibility for study allowance is also extended to the categories of persons mentioned in paragraph 2 of that Article. Following that paragraph, eu nationals55 are eligible for study allowances provided on the basis of the Decree in the following circumstances: – The national of a Member State of the eu who has resided in Belgium for an uninterrupted period of five years prior to the 31st of December of the

47 48 49 50 51 52 53 54 55

47

48 49 50 51

52 53

54 55

Decree regarding study finance of the Flemish Community, Belgisch Staatsblad 19.07.2007. A consolidated version may be found at: http://data-onderwijs.vlaanderen.be/edulex/ document.aspx?docid=13892 last visited 07.04.2017. See Article 5 (22) dsfvg. See Article 5 (36) dsfvg. Article 2 dsfvg. Ontwerp van de Decreet betreffende de studiefinanciering in de Vlaamse Gemeenschap, Parl St Vl Parl 2006–2007, nr 1171/1 (Explanatory Memorandum), p. 3, 5. See also Article 3 dsfvg. Article 21 dsfvg. Ontwerp van Decreet betreffende de studiefinanciering en studentenvoorzieningen in het hoger onderwijs van de Vlaamse Gemeenschap, Parl. St. Vl.Parl, 2003–2004, nr. 2208/1 (Explanatory Memorandum), p. 51. Article 6 dsfvg. In addition, certain procedural requirements be complied with. The requirements are elaborated in title ii – v respectively. But also: Norwegian, Icelandic or Lichtenstein nationals.

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­applicable academic year56 (the ‘Union citizen’ default position). Documents eligible for proof of this period are the registration in the Rijksregister or equivalent. – The national of a Member State of the eu who is economically active either as a worker or self-employed person. A student is only eligible under this clause if he or she has been active for at least 12 months in the two years preceding the 31st of December of the applicable academic year, and during that time worked a minimum of 32 hours per month.57 (The ‘student-worker’) – Children of a national of an eu Member State. Students are eligible here only where the parent has worked, as a worker or self-employed person, for a minimum of 32 hours per month for a period of at least 12 months in the two years preceding the application. In addition, for the claim of a child of a Union worker (the child of an economically active eu citizen) to be successful, he or she must be able to rely on Article 10 Regulation 492/2011.58 In addition, certain categories of tcn are also declared eligible.59 Course requirements: These requirements relate to the course of studies for the purpose of which the student applied for a study allowance. In order for the applicant to be eligible, he or she must have concluded a diplomacontract (referred to above) with an ambtshalve geregistreerde instelling (a government financed institution) with a view to pursuing an accredited course.60 As seen above, the Codex Hoger Onderwijs provides a list of the relevant institutions in Articles II.2 and II.3 Codex Hoger Onderwijs; the accredited courses are listed in the Hoger Onderwijsregister.61 In addition, a student can also request student grants for the pursuit of studies ‘abroad’. The dsfvg makes a distinction in this regard between horizontal and vertical mobility: the former concerns the export of student finance in cases where the student is enrolled in a course of study fulfilling the requirements set out above, whereby parts of that course are to be completed in an institution located in another Belgian federal unit or abroad.62 In such cases, 56 57 58 59 60 61 62

56 Art. 9 (3) dsfvg. 57 Art. 9 (2) (2) dsfvg. 58 Article 9 (2)(1) dsfvg. 59 See Article 9 (2) (4–8) dsfvg. 60 Article 20 dsfvg. 61 See http://www.hogeronderwijsregister.be/ last visited 07.04.2017. 62 Article 28, first indent dsfvg.

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the student retains his or her student grants for the period spent abroad; no additional requirements are imposed. Where it concerns vertical mobility, however, the situation is different. This form of mobility concerns enrolment in a foreign institution for a full course of studies (without, thus, being enrolled in an institution in the Flanders Community).63 Portable student grants are provided both for education provided in the European Higher Education Area as well as for courses followed at institutions outside it. For our purposes, the focus lies on the exercise of vertical mobility within the European Higher Education Area.64 Such mobility is subjected to extra requirements: – The course enrolled in abroad must be a course that is recognised by the competent authorities of that federal unit and/or the host country or must be provided at a recognised institution.65 – The completion of the course must lead to a diploma recognised by the competent authorities (of the foreign state or other federal unit).66 – In addition, the applicant must fulfil one of the following criteria below:67 ○ The student has his main place of residence in the Vlaamse Gewest. ○ The student holds a diploma of secondary education obtained at an institution recognised, financed or subsidised by the Flemish department for education. ○ The student holds a bachelor or master degree from an ambtshalve geregistreerde instelling as referred to in the Codex Hoger Onderwijs. Financial requirements. The amount that an applicant can receive under the Decree is made dependent on the living conditions of the applicant,68 as well as the performance of the student in obtaining his study credits.69 The following discussion is based on a full-time study-year of 60 educational credits.

63 64 65 66 67 68 69

63 Article 28, second indent dsfvg. 64 The dsfvg provides for additional requirements in case the study maintenance is to be exported to a country outside of the European Higher Education Area, see Article 30 (2) dsfvg. 65 Article 30 (1)(1) dsfvg. 66 Article 30 (1)(2) dsfvg. 67 Article 30 (3) dsfvg. 68 See Article 33 dsfvg. 69 Article 21–26 dsfvg. This is used to vary the allowance depending on whether one studies fulltime or part-time.

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Article 34 dsfvg specifies the different factors relevant to determine the socalled ‘living unit’ of the student.70 The student has his main place of residence with one of either of his parents; the student has his main place of residence with someone else than his natural parents (in particular meant for those students who have been placed out of home by a decision of a judicial instance or who are for some other reason fiscally dependent on persons other than their parents); the student is married or cohabiting; the student is (financially) independent; the student is alone (residual category for students who are e.g. orphans, whose parents have died, political refugees etc.). Based on the further provisions of Article 34 dsfvg and the Besluit van de Vlaamse Regering betreffende de studiefinanciering van de Vlaamse Gemeenschap,71 the student is then categorised as being in a particular ‘class’ of living unit.72 Subsequently, the reference income of the living unit will be determined in accordance with Article 35–38 dsfvg. These two elements are then taken together to determine the amount of student grants a student will receive.73 This is done as follows: the living unit of the student is assigned a certain number of points based on the different factors referred to above. For each living unit, a minimum and maximum income is defined,74 which determines the eligibility for student grants. Having regard to the principles set out in Article 39 dsfvg, the following can be said. If the reference income of the living unit, classed for example as ‘5’, is less or equal to €20392,51 the student will receive the maximum maintenance grant (see below). If the reference income of the living unit is higher than €20392,51, but lower than €49372,60, the student will receive a percentage of the maintenance grant, to be calculated using the following formula: maximum income − reference income ​Student support = ________________________________ ​             ​ × maximum grant​ maximum income − minimum income 70 71 72 73 74

70 See http://onderwijs.vlaanderen.be/hoe-bepaal-ik-mijn-leefeenheid last visited 07.04.2017, for elaboration of each of the categories. 71 Article 5–8 dsfvg. 72 See Article 14 dsfvg. 73 Article 39 dsfvg. 74 Table may be obtained from: http://onderwijs.vlaanderen.be/wat-bepaalt-het-bedragvan-mijn-studietoelage last visited 07.04.2017. Note that one can have up to 20 living units points, see article 43 dfsvg.

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Table 4.1

Student grant amounts in Belgium (Flanders)

Student grant (per month)75

Maximum grant

Student living at home Student living away from home

€198,41 €330,57

Table 4.2 Student grant amounts in Belgium (Flanders): special maintenance

Special maintenance grants (per month)

Maximum grant

Student living at home Student away from home

€287,92 €445,07

Special maintenance grants: A student can also be eligible for special maintenance, which is the case where the reference income is especially low for the living unit concerned. This is the case if the reference income is less than 1/10 of the maximum income designated for that living unit in combination with the fulfilment of one of the following conditions: the student is classified as married (cohabiting), independent or alone; or the reference income consists for 70% out of various social assistance grants or alimony.76 Finally, the provision of student grants is made dependent on the student fulfilling the procedural and administrative requirements (e.g. relating to the time of the application). These are further specified in an implementing decision.77

75 76 77

75 76 77

Amounts calculated from the information at: http://onderwijs.vlaanderen.be/nl/bedra gen-studietoelage-2016-17 last visited 07.04.2017. See Article 39 (4) dsfvg. Article 53 dsfvg, see also Article 54–55 and 57–58 dsfvg and Besluit van de Vlaamse Regering betreffende de studiefinanciering van de Vlaamse Gemeenschap of 07 september 2007.

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175

The Tertiary Education System of the Netherlands: Issues of Financing and Student Grants78

4.2.1 Background: The Organisation of the Education Sector Primary education normally lasts a total of eight years (referred to as ‘Groep 1–8’) and is intended for children between the ages of four and twelve. Attendance is mandatory from the age of five onwards.79 Education at this stage is provided by schools for primary education (basisonderwijs80), and institutes for special education (speciaal onderwijs – meant for children with special educational needs).81 At the end of this cycle (provided the necessary grades were obtained to progress each year), students select a secondary education track based on their grades, preferences, recommendation of the school, the recommendation of the secondary education institute and (normally82) the results of a standardised test.83 Three main tracks of secondary or ‘voortgezet’ (literally: continued) education exist:84 preparatory vocational secondary education (voorgezet middelbaar beroepsonderwijs or vmbo), advanced general secondary education (hoger algemeen voorgezet onderwijs or havo) and pre-university secondary education (voorbereidend wetenschappelijk onderwijs or vwo). The havo track lasts five years, of which three make up the junior stage and two the senior; the vwo track lasts six years divided into blocks of three years respectively.85 The havo diploma provides admission to a course of study 78 79 80 81 82 83 84 85

78 79 80

81 82

83 84 85

Scheme provided by Nuffic, available at https://www.studyinholland.nl/documentation/ the-dutch-education-system.pdf last visited 07.04.2017. Article 3 (1) (a) Leerplichtwet 1968, Stb. 1968, 303. A further division is made in this regard between openbare scholen (public schools – organised by government or a public body) and bijzondere scholen (‘particular schools’, as a rule organised by natural or juridical persons; primarily schools founded upon certain religious or ideological principles). Both types of schools can get public funding (the latter if they fulfil certain criteria set out by law) following Article 23 of the Dutch constitution. See further: P. Zoontjens, ‘Bijzonder en openbaar onderwijs’ 52 (7/8) Ars Aequi (2003) 59. See Article 1 Wet op het primair onderwijs Stb. 1981, 468. Currently, the standardised test is not required by law. There is an on-going debate as to whether the test is to be made obligatory in the future: Volkskrant, Komst verplichte eindtoets basisschool nog onzeker, of 21 March 2013. See G. Driessen, ‘Het advies voortgezet onderwijs: is de overadvisering over?’ 81(1) Mens & Maatschappij (2006) 5. Article 5 Wet op het voortgezet onderwijs, Stb. 1963, 40 (first place of publication). Here too a distinction is made between public and private schools, see Article 1. Article 11a Wet op het voortgezet onderwijs. See also Article 8 for the havo track and Article 7 for the vwo track.

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o­ ffered at a Higher Vocational Institute (Hogeschool);86 the vwo diploma provides admission to studies provided by a university.87 The Dutch higher education (hoger onderwijs) system consists of two parts: the Hoger Beroepsonderwijs (higher professional education) and ‘academic’ education.88 Hoger Beroepsonderwijs is meant to provide the student with theoretical knowledge and to assist in developing skills in close connection with the professional field.89 Education in this field is provided by Hogescholen, which are in addition tasked with the development of and research into the professional field within which their educational activities take place.90 A typical degree leading to a Bachelor of Applied Sciences lasts four years (240 ects)91 and is divided into the propedeuse (the first year) and the main programme (the remaining three years).92 Hogescholen also offer master programmes which last between one and two years,93 allowing individuals to specialise further in their chosen field and to engage in applied research. Access to a hbo course is open to applicants who hold a havo secondary education diploma or are in possession of a particular vocational diploma.94 Additional requirements relating to particular subjects that the applicant should have completed at the secondary or upper secondary level can be applied for admission.95 In addition, access made be made conditional to a numerus fixus.96 University education is defined as ‘academic education’ (wetenschappelijk onderwijs) and is meant to prepare the student for independent academic practice and research and/or the professional application of academic knowledge, while generally promoting a broad-ranging integration of the academic disciplines.97 As such, the student at the university is expected to not only be able to apply the ‘state of the art’, but also to critically evaluate current processes­and 86 87 88 89 90 91 92 93 94 95 96 97

86 87 88 89 90 91 92 93 94 95 96 97

As well as any offered at the lower level. As above: including anything below. Article 1.1 (b) Wet op het hoger onderwijs en wetenschappelijk onderzoek, Stb. 1992, 593. Article 1.1 (d) whw. Article 1.3 (3) whw. Article 7.4b (1) whw. See Article 7.8 (2) whw. Artikel 7.4.b (2)ff whw. Article 7.24 (2) whw. In certain circumstances graduates of a vakopleiding can also be allowed access: Article 7.24 (2) (g-h) whw. Article 7.25 whw. Article 7.52c ff whw. Article 1.1 (c) whw.

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to innovate, progressing his or her field. Universities have a dual role in this regard: to provide academic education and to carry out research, both of which fit within their overall mission of the transfer of knowledge for the benefit of society.98 Academic education is divided into a bachelor (between three and four years, or 180 and 240 ects), master (between one to four years or 60 to 240 ects).99 In contrast to the situation in hbo, the bachelor degree can but does not have to be divided in a propedeutic phase and a main programme phase.100 Access to academic education is open to individuals with a vwo secondary education diploma101 or to those individuals who have completed the propedeutic year of a higher professional education course.102 As before, additional requirements relating to particular subjects that the applicant should have completed at the secondary or upper secondary level can be applied for admission.103 In addition, access may be made conditional on satisfying a numerus fixus.104 4.2.2 Principles of Higher Education Funding The overall framework in terms of funding the higher education system in the Netherlands is set out by Article 1.8–1.9 Wet op het hoger onderwijs en wetenschappelijk onderzoek (whw). A first distinction is implicitly made in Article 1.8 whw between education provided by a bekostigde instelling (a funded institution) and niet-bekostigde instellingen (non-funded institution): only the former are entitled to State funding. These eligible institutions are exhaustively summed up in the Annex to the whw. The term ‘niet-bekostigde instelling’ can only be negatively defined as all institutions which are not listed in the Annex. Access to state funding (becoming a bekostigde instelling) is difficult as the system set out by the whw is a relatively closed system: Whereas Article 23 (2) of the Dutch constitution lays down the freedom to provide education, and it is possible for a newly formed educational institute to provide accredited courses leading to an academic degree,105 there is currently no procedure setting out objective criteria by which a newly formed educational institute 98 99 100 101 102 103 104 105

98 99 100 101 102 103 104 105

Article 1.3 (1) whw. Article 7.4a whw. Article 7.8 (1) whw. Article 7.24 (1) whw. Article 7.28 (1a) whw. Article 7.25 whw. Article 7.52c ff whw. See Articles 1.12 and 1.12a whw.

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can become a funded institution within the meaning of the whw.106 Rather, inclusion is solely possible through an amendment of the (Annex to the) whw by the legislator. Article 1.9 whw further specifies that such bekostigde instellingen, that is to say the universities and Hogescholen, are entitled to claim State funding for the purposes of providing initieel onderwijs (initial education). Article 1.1 (e) jo. 7.3a whw reveals that such initial education consists of the (accredited) bachelor programmes as well as the (accredited) master programmes that follow on to these bachelor programmes.107 In addition, universities also receive funding for the purposes of conducting research. Hogescholen, which are also tasked with developing the professional field connected to the courses they provide do not receive separate funding for these activities; rather these ­activities are subsumed under the provision of education.108 The funding so received from the State is conditional on the institution in question complying with the provisions in the whw and other implementing measures relating inter alia to quality control, the provision of education, (protection of) students and the organisation and governance of higher education institutes.109 This use of funding (and arguably other forms of government support) as an enforcement mechanism should be closely scrutinised. It was already seen that the Court of Justice in Commission v Belgium (higher education financing)110 articulated the general principle that withholding funding (and arguably other forms of support) from educational institutes as a means of, in a roundabout manner, enforcing provisions that infringed the free movement and/or non-­ discrimination principles would not be tolerated. Finally, it should be mentioned that, while the bekostigde instellingen are entitled to receive funding from the State, the law as such does not specify the amount of funding to be received. Rather, it only sets out rules for the division of the budget allocated to (higher) education in the annual State budget 106 107 108 109 110

106 See R. Louw, Het Nederlands Hoger Onderwijsrecht, (Leiden University Press, 2011), pp. 61–65 for further details. It should be mentioned, however, that some funding outside the system of the whw takes place on an experimental basis, see for example the Tijdelijke regeling van de staatssecretaris van Onderwijs, Cultuur en Wetenschap, van 25 ­oktober 2006, nr. HO/BL/2006/28157, houdende subsidiëring van experimenten open bestel in het hoger onderwijs, Stcrt. 2006, 220. 107 Accredited also includes ‘new programmes’. In addition, Article 1.9(2) specifies that successful examination in these programmes leads to an academic degree. 108 Article 1.9 (1) whw. 109 See Article 1.9 (3) whw for a full list. 110 Case 42/87, Commission v Belgium (higher education financing), ecli:eu:C:1988:454.

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(­Rijksbegroting).111 The main principle that governs funding for higher education in the Netherlands is that it follows the student.112 There is an aspect of private funding, the tuition fee paid by the student, and an aspect of public funding, the contribution of the State. 4.2.2.1 Private Funding: The Tuition or Enrolment Fee In order for a student to enrol him or herself in higher education, s/he must pay the tuition fee applicable for that academic year.113 In the Netherlands, a distinction is made between the wettelijk collegegeld and the instellingscollegegeld in this regard. The former is set by a decision by the Minister for Education, Science and Culture114 and is currently set at €1984 for the academic year 2015–16.115 Following Article 7.45a whw it is payable by all students who fulfil two criteria: First, the student in question must not be in possession of a bachelor degree when he or she enrols in a course of study leading to a bachelor degree. Similarly, a student enrolling in a master degree must not already be in possession of such a degree. In other words, where a student seeks to obtain a second degree, he or she will have to pay the higher instellingscollegegeld.116 Secondly, the student must belong to a category of persons as set out in Article 2.2 Wet Studiefinanciering 2000.117 This latter article specifies eligible persons as: 1. 2.

Persons possessing the Dutch nationality. Persons who do not possess the Dutch nationality, but have to be equated to Dutch nationals for study finance purposes by virtue of a treaty or a decision of an organisation of public international law.

111 112 113 114 115 116 117

111 See also Article 4.1 (1) Uitvoeringsbesluit whw 2008, Stb. 1993, 487. 112 Article 4.7 Uitvoeringsbesluit whw 2008. 113 Article 7.43 (1) whw. Where a student enrols himself at a later date in the academic year, he or she will be liable to pay the tuition fee proportionally to the remaining study months: Article 7.48 (3) whw. 114 See Article 7.45 (1) whw. 115 Article 9 (1) Regeling financiën hoger onderwijs, Stcrt. 2008, 115. 116 An exception exists in this regard where a student seeks to enrol in a second degree in the area of education or healthcare: here the normal collegegeld will have to be paid following Article 7.45 (2) whw. 117 Article 7.45 (1) (b) whw. In addition to those nationals listed in Article 2.2 wsf 2000, persons possessing the Surinam nationality also fulfil the nationality criteria following that provision.

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Persons who do not possess the Dutch nationality, but are resident in the Netherlands and belong to a group of people designated in an administrative order who are to be equated with Dutch nationals for purposes of study finance.

In contrast, the instellingscollegegeld is payable by all students who enrol themselves in a course of study and who do not fulfil the above requirements. The amount to be paid is set by the higher education institute itself, with the only limitation that it may be not be lower than the collegegeld as determined by law.118 As a rule, however, the instellingscollegegeld far exceeds the wettelijke collegegeld, primarily because such students are not normally counted for the purposes of government funding.119 Maastricht University, for example, charges between €7500 and €32000 per academic year depending on the course.120 4.2.2.2 Public Funding: de Rijksbijdrage The amount of funding received is determined by the number of students enrolled in a particular course in an institution in the criho (Centraal Register Inschrijvingen Hoger Onderwijs – Central Register for Enrolment in Higher Education) as well the number of degrees awarded by that institution (as registered by criho).121 A distinction is thus made between the ‘enrolment for which funding is provided to the higher education institute’ (funded enrolment)122 and a ‘degree for which funding is provided to the higher education institute’ (funded degree).123 In essence, the greater the number of such funded enrolments combined with funded degrees, the greater the slice of the pie in terms of funding from the money reserved in the Rijksbegroting for funding education in the higher education sector. In order to ‘count’ towards funding (a ‘funded enrolment’), the student thus enrolling must fulfil the following criteria:124 – Registration criteria: Only ‘first enrolments’ count for the purposes of funding. A bekostigde instelling is only provided with funding for a student to

118 119 120 121 122 123 124

118 Article 7.46 whw. 119 See below. 120 https://www.maastrichtuniversity.nl/nl/support/voordat-je-studie-begint/collegegeld/ toelichting-collegegeldtarieven last visited 07.04.2017. 121 Article 4.1 jo. Section 2 of Chapter 4 Uitvoeringsbesluit whw 2008. 122 Article 4.8 Uitvoeringsbesluit whw 2008. 123 Article 4.9 Uitvoeringsbesluit whw 2008. 124 Article 4.8 jo. 1.1 (r) Uitvoeringsbesluit whw 2008.

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follow one bachelor degree and one master degree. Where a student who already has a bachelor (or master) degree and enrols in another bachelor level degree, he or she will not count for funding purposes. Similarly, where a student already has a master degree, he or she will not count for funding purposes for another master degree.125 – Tuition fee criteria: the (full-time or part-time)126 student, in order to count, must be liable to pay the full amount of the tuition fee set by law.127 Where he or she for some reason has obtained a reduced tuition fee, the student is no longer counted. – Length of study criteria: funding for an enrolled student will only be provided for the nominal duration of the degree. Where a student is ‘late’ in graduating, no further funding will be provided by the State. – Nationality criteria. Here reference is made to a provision in the Wet Studiefinanciering 2000. The details of this rule will be explained more extensively below. Suffice to say here that only enrolments by Dutch nationals, or nationals whose positions must be harmonised with the position of Dutch nationals as a result of an obligation ‘in international law’ (which includes situations in which eu or eea law requires equal treatment) will count towards funding. Third-country nationals are thus excluded128 (unless they hold a specific residence permit on the basis of the Vreemdelingenwet 2000). It should further be noted that funding has a two-year ‘lag’: present day funding is determined by reference to the student numbers for which the institution is eligible to receive funding on the cut-off date of the 30th of September two calendar years prior to the annual Rijksbegroting.129 In other words, funding for 2014 depended on relevant student numbers of 30 September 2012. An award of a bachelor or master degree is the second basis for funding (a ‘funded degree’). In order to be counted for the purposes of funding, the degree must be awarded to a person who fulfils the above-mentioned criteria. The only difference is that for an award of a degree to be counted, the student need not have completed his degree within the nominal time.130 Therefore, 125 126 127 128 129 130

125 See the definition of ‘student’ in Article 1.1 (r) (2–3) Uitvoeringsbesluit whw 2008. 126 See Article 7.45a (4–5) whw. Students will only be excluded for funding purposes where they have received, for some reason, a ‘discount’ on their normally payable tuition fee. 127 This includes both full time students and part time students. 128 With the exception of tcn with Surinam nationality following Article 1.1 (r) (2) Uitvoeringsbesluit whw 2008. 129 Article 4.3 Uitvoeringsbesluit whv 2008. 130 Article 4.9 Uitvoeringsbesluit whw 2008 jo. Article 7.10a whw.

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whereas if a student takes five years in order to complete his three-year bachelor he will not count for funding (as a funded enrolment) in the last two years, the award of the degree to this person after these five years will still count towards the awarded degrees for which an institution receives funding. Also, this type of funding is subject to a two-year lag: for funding in 2014, the degrees awarded between the 1st of October 2011 and the 30th of September 2012 will be counted. The sum of the two numbers is determinative for the amount of funding and calculated separately for universities, on the one hand, and hogescholen, on the other. In this respect it is important to note that further corrective mechanisms are applied to the ‘naked’ number of funded enrolments and degrees. First, the product of the funded enrolments and funded degrees is determined for each course (e.g. a university may in the given period have 100 funded enrolments and 50 funded degrees for the course of medicine). This number is then multiplied by the bekostigingsniveau (funding level or factor). Depending on the field or area in which the course of instruction takes place, the course in question may count up to two times (for medicine, in the example used, the relevant number of 150 would be multiplied by 2).131 This is then done for each course separately, after which a ‘corrected’ overall number per course is established (hereafter: corrected unit). After this is done, the part of the higher education budget allocated to education for universtities and hogescholen respectively132 is divided by the sum of the corrected units of all universities. This results in a number specifying funding for one corrected unit. A single university or hogeschool will then receive the number so arrived at times the number of corrected units it can claim in the relevant period.133 131 132 133

131 Article 4.10 (2) jo. Annex i to the Uitvoeringsbesluit whw 2008. 132 Prior to this division, however, the Minister may first allocate to bekostigde instellingen a so-called onderwijsopslag (supplementary education funding) for the purposes of protecting courses deemed ‘at risk’, to increase or reward particular quality or in relation to special facilities. This amount is deducted from the available budget, after which the rest of the budget is divided as described. The vague nature of the criteria relating to the onderwijsopslag allow the minister discretion to fund particular developments or to provide particular incentives to higher education institutes (previously, the onderwijsopslag was known as the missiebudget, ‘mission budget’). See Articles 4.11 jo. 4.7 (3) whw 2008 and R. Louw, Het Nederlands Hoger Onderwijsrecht, (Leiden University Press, 2011), pp. 121–122. 133 See Article 4.7ff Uitvoeringsbesluit whw 2008.

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4.2.2.3 Public Funding: Financing Research Research funding follows a simpler method. A distinction is again made between universities and hogescholen. For universities, the minister will divide the part of the higher education budget allocated to research in universities in three (not necessarily equal) parts. Universities can thus obtain three lines of funding as such. The first line of funding is calculated by reference to the number of ‘funded degrees’, referred to above, of a university as a percentage of the total number of funded degrees awarded by all universities.134 In other words, if a university awarded 20% of all degrees in the relevant period, it would get 20% of the budget in this line of funding. Two corrective mechanisms are again applied to the ‘naked’ number of funded degrees of each university: all master degrees count twice and,135 as above, depending on the field or area in which the degree is awarded, the relevant degree may count more than once; here a degree in medicine will, for example, count three times.136 The second line of funding is the award of doctoral degrees or so-called designer certificates: the university receives a fixed amount for each degree awarded (€96490 and €80409 respectively137). The final line of funding is a discretionary supplement for research allocated to universities to fund research schools or special facilities.138 Any part of the research budget that remains after the initial division according to the principles set out above is allocated to the university based on a percentage determined in the Regeling financiën hoger onderwijs.139 For hogescholen, the minister is authorised, on a discretionary basis, to simply allocate funding to hogescholen for ‘design and development’ purposes from the part of the higher education budget reserved for this.140 Any amount not initially allocated will be divided among the hogescholen based on key in the Regeling financiën hoger onderwijs.141 134 135 136 137 138 139 140 141

134 135 136 137 138 139 140

Article 4.20 (1) Uitvoeringsbesluit whw 2008. Article 4.20 (2) Uitvoeringsbesluit whw 2008. Article 4.20 (3) Uitvoeringsbesluit whw 2008. See Article 4 (4) and (5) Regeling financiën hoger onderwijs respectively. See annex 5 Regeling financiën hoger onderwijs, Stcrt. 2008, 115. Article 4.23 (2) jo. Annex 6 Regeling financiën hoger onderwijs. See Article 4.24 Uitvoeringsbesluit whw 2008. See Annex 9 Regeling financiën hoger onderwijs for the amounts. 141 Annex 10 Regeling financiën hoger onderwijs.

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Principles of Funding Student Participation in Higher Education: The Wet Studiefinanciering 2000 The Dutch rules on maintenance grants for study purposes are laid down in the Wet Studiefinanciering 2000142 (wsf 2000), further implemented by the Besluit Studiefinanciering 2000143 (bsf 2000). The overall system is based on the principle of a tripartite contribution of state, family and the individual (as self-investor based on future expected earnings: the market) to the maintenance of the student during his participation in higher education.144 A summa divisio is further made between so-called ‘participants’ and ‘students’. The former are those that have enrolled in a course of study offered at a trade school.145 The term ‘student’ applies to those enrolled in a course146 of higher education.147 The focus here lies, again, on the position of the student, which is mainly regulated in Chapter 3 and Chapter 5 of the wsf 2000. The relevant authority for decisions taken under wsf 2000 is the Minister of Education, Culture and Science.148 In practice the Dienst Uitvoering Onderwijs149 (duo) is responsible for the exercise of the executive functions regarding study finance. 4.2.3

142 143 144 145 146 147 148 149

142 Wet van 29 juni 2000, houdende intrekking van de Wet op de studiefinanciering en vervanging door de Wet studiefinanciering 2000, Stb. 2000, 286. Hereafter: Wet studiefinanciering 2000. 143 Besluit van 5 augustus 2000, houdende intrekking van het Besluit studiefinanciering en vervanging door het Besluit studiefinanciering 2000 ter uitvoering van de Wet studiefinanciering 2000, Stb. 2000, 329. Hereafter Besluit studiefinanciering 2000. 144 See the Explanatory Memorandum: Kamerstukken ii 1999/00, 26873, nr. 3 p. 2 (MvT). 145 See for a list of accredited courses: https://duo.nl/open_onderwijsdata/databestanden/ mbo/crebo/, last visited 07.04.2017. The legal basis for the accreditation of these courses is found in Article 7.2.4 Wet educatie en beroepsonderwijs. 146 See for a list of the accredited courses the website of the Nederlands-Vlaamse Accreditatie Organisatie (nvao, Dutch-Flemish Organisation for Accreditation): https://www .nvao.net/, last visited 07.04.2017. The nvao operates on the basis of a Treaty concluded between the Netherlands and Belgium in the context of the Bologna process and is available at https://www.nvao.net/beoordelingskaders/verdrag-vlaamse-gemeenschap-van -belgi%C3%AB-en-koninkrijk-der-nederlanden, last visited 07.04.2017. The competence of the nvao to accredit Dutch courses follows from Chapter 5a of the whw. 147 See for the definitions Article 1.1 (1) wsf 2000. 148 Article 3.19 wsf 2000. 149 An executive agency of the Ministry of Education with the task of organising, financing and providing information on education, see: http://www.duo.nl/, last visited 07.04.2017.

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4.2.3.1 Rules for Eligibility The criteria for eligibility for study finance150 in the Netherlands are threefold: The Nationality requirements151 of Article 2.2 (1) of the wsf 2000 specifies the following categories of persons who fulfil the nationality requirement: – Persons possessing the Dutch nationality. – Persons who do not possess the Dutch nationality, but have to be equated to Dutch nationals for study finance purposes due to a treaty or a decision by an organisation of public international law. – Persons who do not possess the Dutch nationality, but are resident in the Netherlands and belong to a group of people designated in an administrative decree who are to be equated with Dutch nationals for purposes of study finance. From this it follows that Dutch nationals will always satisfy the requirement of nationality set out by Article 2.1 wsf 2000. eu nationals fall within the second category, as they can claim a right to equal treatment on the basis of the tfeu, discussed in Chapter 3, with host Member State nationals as regards matters of student grants.152 bsf 2000 limits the full eligibility for study finance on the basis of Article 2.2 (1) (b) wsf 2000 to the following individuals in possession of a nationality of one of the Member States of the eu (or eea/Switzerland):153 workers, self-employed persons, persons who retain their worker or self-­employed status and family members of the aforementioned. In addition, those individuals and their family members that have a right to permanent residence as defined in Article 16 of Directive 2004/38154 amending Regulation (eec) No. 1612/68 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. will also be eligible for study finance. The 150 151 152 153 154

150 See for the definitions used: Art. 1.1 wsf 2000. 151 Art. 2.2 wsf 2000. See further below. 152 See for an elaborate consideration of these matters the Explanatory Memorandum regarding the amendment of the wsf 2000 for the purposes of implementing Directive 2004/38: Kamerstukken ii 2005/06, 30493, nr. 3 pp. 5–9 (MvT). A dicussion of an older revision of the wsf 2000 for the purposes of complying with eu law can be found here: Kamerstukken ii 2002/03, 28865, nr. 3 (MvT). 153 Art. 3a and 3b bsf 2000. See further Article 2.2 (2) of the wsf 2000 for the foundational basis for this decision. 154 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

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third category of people are those designated in Article 3 of Besluit Studiefinanciering 2000 and relates to individuals holding certain types of residence permits on the basis of the Dutch law on aliens. Age requirements. This requirement specifies that the applicant must have reached the age of 18 and must not be older than 30.155 A student is eligible for study finance if on the first day of the quarter of the year in which he pursues higher education he has reached 18 years of age. He will then be eligible from the first day of the month of when he started education. In contrast, a student who on the first day of the quarter of the year in which he pursues higher education has not yet reached the age of 18 will only qualify for study finance the first day of next quarter. Educational requirements. The applicant must be enrolled in a type of education eligible to receive study finance.156 This includes full-time bachelor and master courses offered at bekostigde instellingen, as well as full-time accredited bachelor and master courses offered at niet-bekostigde instellingen.157 Students are in principle only eligible to receive student grants for courses belonging to the initieel onderwijs, that is for the first bachelor and the subsequent master.158 In addition, certain religious instruction and other courses designated by administrative decree can count as education for which students are eligible to receive study finance.159 Finally, also courses offered at institutions established in other Member States may be eligible. Two situations are foreseen: mobility as part of studies pursued in the Netherlands (credit mobility) or the export of study finance for a full course of study abroad (degree mobility). In the former case the normal system for study finance applies as long as the student remains enrolled as a (full-time) student in an eligible course at a bekostigde or niet-bekostigde instelling in the Netherlands; for the purposes of determining the applicable level of the grant the student will count as a ‘student living away from home’.160 In the second case specific rules apply. If students wish to receive Dutch study finance while enrolled in a foreign course, the studies must not only be of equivalent quality, but must also:

155 156 157 158 159 160

155 Art. 2.3 wsf 2000. 156 Art. 2.4–2.14a wsf 2000. The criteria for eligible courses of study relate inter alia to the educational establishment where the course of study is offered, the length of the studies and the full-time nature thereof. 157 Article 2.8 and 2.9 wsf 2000. 158 Compare Article 7.3a and 7.3b whw. 159 See Articles 2.10–2.11 wsf 2000. See for the courses designated by administrative decree Article 4 bsf 2000. 160 See below.

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2.

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Be of a similar kind to studies offered in the Netherlands.161 The Centrale Raad van Beroep has adhered to a relatively strict interpretation of this provision and upheld a decision by duo to refuse the export of student grants for the second year of a two-year master studies in Italy on the basis that master studies offered in the Netherlands in that particular field of study were only one year long.162 The student must in addition, prior to the enrolment abroad and application for export, have resided in the Netherlands for three out of the last six years.163 The latter requirement was added with a view to combating abuse and is considered to be an implementation of the Bidar164 genuine link criterion.165 It does not apply to eu citizens who can claim worker status and their family members, following the ruling in the case Commission v the Netherlands (export of student grants). Moreover, should a student not fulfil the requirements, he or she can show the requisite degree of connection in other ways, such as speaking the Dutch language and having followed a period of schooling in the Netherlands, or having worked for a least three years for a minimum of 56 hours per week.166

The student finance that is capable of being exported is in principle the same as the one received for studies pursued in the Netherlands, with the added possibility of converting the travel allowance into a monetary grant (see below) and the fact that for the maximum amount that a student can obtain under the tuition fee credit the tuition fee set by the foreign institution is taken as a reference point.167 4.2.3.2 The Student Financing System The Dutch study finance system can be distinguished into two time periods. The initial time period is the nominal time that it takes a student to obtain a 161 162 163 164 165 166 167

161 Art. 2.14(2)(a) wsf 2000. 162 CRvB, 6 September 2011, ecli:nl:crvb:2011:BR6677, para. 5.2. 163 Art. 2.14 (2) (a) and (c) wsf 2000. There is currently no ministerial decree laying down additional criteria as referred to by Art. 2.14 (2) (b) wsf 2000. 164 Case C-209/03, The Queen, on application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ecli:eu:C:2005:169. 165 Kamerstukken ii 2006/07, 30933, nr. 3, pp. 3–5 (mvt). 166 See Beleidsregel van de Minister van Onderwijs, Cultuur en Wetenschap van 18 November 2016, nr. HO&S/864922, inzake nadere invulling van de voorwaarden voor meeneembare studiefinanciering hoger onderwijs (Beleidsregel meeneembare studiefinanciering hoger onderwijs), Stcrt. 2016, 64343. 167 See Article 3.16a (2) and (3) wsf 2000.

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bachelor and a master.168 This is normally 3+1 years, but for certain studies of which the degrees take longer (in particular medical studies) this is extended.169 The extended period is a period of 36 months (or three years) running after the initial period (be this four years or longer) in which the students can still claim some form of study finance.170 The student – initial time period. During this period, the following study finance options are provided for the student:171 1. 2. 3. 4. 5.

A basic loan.172 A travel benefit for travel by public transport.173 Income dependent supplementary maintenance grant.174 A supplementary loan.175 The tuition fee credit.176

A student who fulfils the requirements of eligibility in Article 2.1 wsf 2000 (as noted above) is entitled to a basic loan regardless regardless of the financial state or income of his caretakers and/or his own income. This basic loan is in principle available to the student for the nominal duration of the degree. Repayment conditions are set out in Chapter 6 of the wsf 2000. The travel allowance is also provided to all eligible students: it combines free travel when using public transport during certain part of the weeks and 168 169 170 171 172 173 174

Table 4.3 Student loan amounts in the Netherlands

Maximum basic loan per month177

As of the 1st of January 2017 €481,60

175 176 177

168 169 170 171

172 173 174 175 176 177

Art. 5.2 (1) wsf 2000. See Articles 7.4a and 7.4b whw. Article 5.2 (4) wsf 2000. Art. 3.1 (1) jo. 3.3 wsf 2000. Note that the amount of study finance varies depending whether the participant/student is classed as living at home or as living away from home, see Art. 3.18 wsf 2000 for an overview. See paragraph 3.4 wsf 2000. Art. 3.3 (1)(c) jo. Art. 3.7 wsf 2000. Art. 3.8–3.14 wsf 2000. Art. 3.16 wsf 2000. Art. 3.16a wsf 2000. Figures as stated in Article 7 Regeling normen wsf 2000, wtos en wsf bes, Stcrt. 2014, 36161.

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the right to a reduced price for those hours not falling within that period.178 The value of this allowance is somewhat unclear but can be derived from the articles of the wsf 2000 that refer to the export of student financing for studies abroad. In those cases one can apply to receive a monetary grant instead of a travel allowance.179 The travel-allowance-turned-monetary-grant is transferred monthly and the amount is determined by reference to the costs made annually by the State in her agreements with the public transport sector for each student, divided by twelve.180 The norm amount as from the 1st of January 2017 is €89,07181 and it is granted in the form of a so-called ‘prestatiebeurs’: it starts out as a loan but is converted to a grant if the student manages to obtain a degree within ten years182 after having first received student finance.183 The supplementary grant is a needs-based grant. In order to determine the eligibility for a supplementary grant, an assessment is made based on the individual income of the parents of the student.184 This is done on the basis of the ‘reference income’, which is the income of the parent determined for purposes of general taxation185 in the reference year, minus a contribution threshold (set at at €17329,02).186 This number is then discounted to 26%.187 So for a reference income of €30000 of one parent:188 ((30000 − 17329,02) × 0,26) / 12 = 274,54. This is the expected contribution of that particular parent per month to the studies of the student (if both parents earn €30000, each is expected to contribute €274,54).189 The combined expected contribution of the parents is then deducted from the maximum amount of supplementary grant that can be granted by the state on grounds of the wsf 2000, with the caveat that it can never be negative.190 178 179 180 181 182 183 184 185 186 187 188 189 190

178 See Article 3.7 wsf 2000. 179 Article 5.3 (1) wsf 2000. 180 See Art. 5.2 (2) wsf 2000. 181 See https://duo.nl/particulier/student-hbo-of-universiteit/ov-en-reizen/reisproduct-regel en.jsp last visited 07.04.2017. 182 Article 5.5 wsf 2000. 183 See Article 5.7 wsf 2000. 184 Article 3.8 (1) jo. Article 3.9 (1) wsf 2000. 185 See Article 2.18 Wet Inkomstenbelasting 2001, Stb. 2000, 215. 186 Article 3.9 (3) wsf 2000. 187 Article 3.9 (4) wsf 2000. 188 More elaborate parameters apply, e.g. in the case of single-parent families or where multiple children are studying. 189 Article 3.9 (7) jo (9) wsf 2000 jo. 3.13 wsf 2000. 190 Article 3.13 (1) wsf 2000.

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In our example, therefore, the student would not be entitled to any supplementary grant, as the parents’ combined expected contribution (€568,08) would exceed the maximum entitlement. The supplementary grant is, like the travel accommodation, granted in the form of a prestatiebeurs. However, the first five months are always considered a grant even if a diploma is not obtained.191 Finally, the so-called tuition fee credit and supplementary loan192 are also available for students during the initial time period. The student – extended time period: the loan, the travel accommodation and tuition fee credit. After the initial time period the student is eligible to receive financing in the form of a loan (against the same interest rate as the loans specified above) for a period of thirty-six months. No supplementary grant is provided in that Table 4.4 Supplementary grant amounts in the Netherlands

Maximum supplementary grant per month193 As of the 1st of January 2017 €386,08

Table 4.5 Additional loan amounts in the Netherlands

Additional loans

As of the 1st of January 2017

Tuition fee credit194 Supplementary loan (loan on the difference between the maximum supplementary grant and the amount actually received)196

€1984195 / 12 = €165,33 €0 – 386,08

191 192 193 194 195 196

191 192 193 194 195 196

Article 5.2 (2) wsf 2000. Article 3.15–3.16a wsf 2000. See Article 7 Regeling normen wsf 2000, wtos en wsf bes. Article 3.16a wsf 2000. Article 9 (1) Regeling financiën hoger onderwijs. Article 3.16 wsf 2000.

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Table 4.6 Loan amounts in the Netherlands: extended period

Extended period loans

As of the 1st of January 2017

Maximum study loan after the performance grant period Tuition fee credit

€931,51 €165,33

time.197 The student can furthermore continue to receive the travel accommodation during that extended time period, but only for a year.198 This grant remains subject to prestatiebeurs rules.199 Finally, the student can continue to make use of the tuition fee credit during this period.200 The conditions for the repayment of the loans are again found in Chapter 6 of the wsf 2000. Miscellaneous provisions. Finally, for both students and participants, additional grants are available if they qualify as a single parent.201 This additional grant is considered to be part of the prestatiebeurs.202 For the extended time period the student or participant can continue to claim these amounts, but in the form of a loan.203 Repayment. The repayment conditions for loans are set out in Chapter 6 of wsf 2000. (Compound) Interest accrual stands at the average level that the State of the Netherlands pays for its loans on the capital market.204 The interest is ­currently 0%.205 Repayment takes place over a period of 35 years,206 at a maximum 4% of every Euro earned over the taxable minimum wage.207 If repayment is not made in full in that period, the debt is cancelled.208 197 198 199 200 201 202 203 204 205 206 207 208

197 Article 5.2 (4) wsf 2000. 198 Article 5.2 (4) wsf 2000. 199 Art. 5.3 (4) wsf 2000. 200 Article 5.2 (4) wsf 2000. 201 Article 3.5 wsf 2000. 202 Article 5.1 wsf 2000. 203 Article 5.2 (5) wsf 2000. 204 Article 6.3 wsf 2000. 205 See https://duo.nl/apps/rentepercentage/index.html last visited 07.04.2017. 206 Article 6.7 (1)(b) wsf 2000. 207 See Article 6.10 wsf 2000. 208 Article 6.16 (1) wsf 2000.

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The Tertiary Education System of Sweden: Issues of Financing and Student Grants209

4.3.1 Background: The Organisation of the Education Sector The first education cycle (grundskola: primary+lower secondary education) starts in the year in which the child turns seven, at which point enrolment becomes compulsory210 (although it is possible to enrol the child earlier) and lasts for nine years.211 After graduating from the grundskola, pupils can (freely) opt to pursue upper secondary education (gymnasieskola; upper secondary education normally lasting from age 16 to 20).212 Secondary education consists of a core programme (e.g. English, arts, religion) and an elective part where the pupil can choose from a set of different trajectories. About 18 such trajectories as exist, which are moreover divided in vocational programmes (12) and programmes preparing for academia (6),213 both lasting for a period of three years. Admission to the different programmes is conditional on having obtained a pass for a certain amount courses offered at the compulsory school stage (eight versus twelve respectively).214 After completion of one of these programmes, a pupil can apply for a job, obtain further vocational training (where a vocational programme was pursued) or enrol in a högskola or universitet (where an academic programme was followed). This stage is called ‘eftergymnasial utbildning’. Tertiary education in Sweden is provided by högskolor (university colleges) and universities (although overall reference in Sweden is usually made to högskolor, regardless of the exact designation215) and is provided in three cycles: grundnivå (bachelor), avancerad nivå (master) and forskarnivå (doctoral). The distinction between a högskola and university lies in the capacity to award doctoral degrees: universities have a general capacity to award doctoral degrees, whereas högskolor do not or can only award such degrees in specific, delimited 209 210 211 212 213 214 215

209 Diagram obtained from http://studera.nu/startpage/higher-education-studies/highereducation-in-sweden/study-levels-and-degrees/ last visited 07.04.2017. 210 Paragraph 10 Chapter 7 Skollag sfs 2010:800. 211 Chapter 10 Skollag sfs 2010:800. See for an overview in English of the Swedish education system: https://www.skolverket.se/om-skolverket/andra-sprak/in-english/the-swedisheducation-system/an-overview-of-the-swedish-education-system-1.72184 last visited 07.04.2017. 212 Paragraph 5 Chapter 15 Skollag sfs 2010:800. 213 See Annex ii to Skollag sfs 2010:800 as well as Annex i and ii to the Gymnasieförordning sfs 2010:2039. 214 Paragraph 29–31 Chapter 16 Skollagen sfs 2010:800. 215 See also Paragraph 1 Chapter 1 Högskolelag sfs 1992:1434.

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areas.216 This in turn has consequences for the capacity to award master degrees: a higher education institute may in principle only award master degrees in those fields in which it is authorised to award a doctoral degree.217 Where it concerns first cycle programmes (bachelor), there is no distinction between the two types of institutes. In terms of degrees that may be pursued, the government sets, in very general terms, learning goals and skills acquisition requirements for the different degrees, which are divided into:218 – Högskoleexamen (120 ects); Diploma of Higher Education. – Kandidatexamen (180 ects); Bachelor of Science/Bachelor of Arts. – Yrkesexamen; ‘professional degrees’. This is a programme meant to prepare the student for a particular profession, such as sjuksköterska (nurse) or civilingenjör (‘Master of Science in Engineering’). It should be noted, however, that the existence of such a yrkesexamen does not automatically imply the existence of a corresponding regulated profession (of which there are relatively few in Sweden219). Theduration of these types of degree varies (e.g. the civilingenjörexamen is 300 ects). – Various bachelors of fine arts (can be at higher education diploma, bachelor or master level). – The Magisterexamen (60 ects, Master of arts/science) and the Masterexamen (120 ects, Master of arts/science) or the Magister/masterexamen of Fine Arts (60/120 ects). 4.3.2 Principles of Higher Education Funding Interestingly, the principles of higher education funding are not found in any specific law or decree. Rather, the relevant principles may be found in a ­series of interactions between the government and the Swedish parliament, and are documented in in Proposition 1992:93:1 – Frihet för kvalitet, Proposition 216 217 218 219

216 See paragraphs 11–13 Chapter 1 Högskolelag sfs 1992:1434. 217 Paragraph 5b Chapter 6 Högskoleförordningen sfs 1993:100. However, special permission to award master degrees without being able to award the corresponding doctoral degree can be obtained. 218 See Annex ii to Högskoleförordning sfs 1993:100. For a translation and terminology used, see Universitets- och högskolerådets föreskrifter och allmänna råd om översättning till engelska av svenska examina, uhrfs 2013:6 as amended by uhrfs 2014:3. 219 See paragraph 17 Chapter 2 Regeringsform 1974:152 which refers to the freedom to pursue an economic activity. See for a list of reglerade yrken: https://www.uhr.se/regleradeyrken/ last visited 07.04.2017.

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1992/93:169 om högre utbildning för ökad kompetens, and proposition 2009/10:139 Fokus på kunskap – kvalitet i den högre utbildningen. Relevant further laws are the Högskolelag220 (Law on higher education institutes) and the Högeskolförordning221 (Decree on higher educaton institutes), as well as the yearly regleringsbrev, which contain educational policy goals, performance benchmarks of higher education institutes and provisions as regards financing.222 The basic principle that underlies the financing approach, and the higher education system after the reform of the early 1990s more generally, is to ensure a greater autonomy for higher education institutes to carry out the tasks assigned to them, in particular as regards the content and scope of their activities as well as the (institutional) framework in which these activities take place.223 These tasks, in the first place, concern the provision of high quality education and the conduct of research.224 More broadly, however, the Swedish higher education institutes are tasked with promoting certain values such as sustainable development and progress, equality between men and women, an understanding of other countries and international society as a whole, and access to (higher) education for all persons.225 Broadly seen, two types of higher education institutes can be said to exist: the majority are statliga högskolor (state higher education institutes) which are public bodies and are fully subject to the högskolelag and högskoleförordning.226 The second type are enskilda utbildningsanordnare med examensrätt (higher education institutes with the right to award degrees227) which are private law bodies and can take a variety of legal forms.228 For the public bodies, the law provides that education must be provided free of charge to

220 221 222 223 224 225 226 227 228

220 sfs 1992:1434. 221 sfs 1993:100. 222 See for an extensive overview sou 2008:104, Självständiga lärosäten p. 110ff. See also sou 2005:48, Ett utvecklat resurstilldelningssystem för högskolans grundutbildning, pp. 45–49. The regleringsbrev are available at http://www.esv.se/statsliggaren/regleringsbrev/?RBID =17920 last visited 07.04.2017. These can also specify particular goals or instructions for higher education institutes, as illustrated by the regleringsbrev for Stockholm University in 2015: http://www.esv.se/Verktyg--stod/Statsliggaren/Regleringsbrev/?RBID=16766 last visited 07.04.2017. 223 Proposition 1992:93:1 Frihet för kvalitet, p. 68. 224 Paragraph 2–3, 6–10a Chapter 1 Högskolelag sfs 1992:1434. 225 Paragraph 5 Chapter 1 Högskolelag sfs 1992:1434. 226 See for a list Annex i to the Högeskoleförordning sfs 1993:100. 227 For the procedure, see Lag om tillstånd att utfärda vissa examina sfs 1993:792. 228 See for a list http://www.studera.nu/livet-som-student/lag-och-ratt-pa-hogskolan/enskil da-utbildningsanordnare/ last visited 07.04.2017. See further extensively for this type of higher education institute the analysis conducted by Statskontoret 2012:37, Olika men ändå lika. En uppföljning av stiftelseformens betydelse inom högskolan.

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Swedish citizens and (other) eu/eea nationals.229 Where it concerns private bodies with examensrätt, the agreement conferring such capacity230 usually stipulates the requirement of tuition free education to the same categories.231 As such, there is no real component of private financing of higher education institutes in Sweden. Rather, both types of bodies mentioned above receive government financing. In terms of financing, the budget (anslag) for the two types of higher education institutes is set out separately in the overarching state budget for that particular year. As will be seen, unlike both the Netherlands and the Flemish Community of Belgium, higher education institutes in Sweden are eligible to receive a fixed amount per student, which is set out in the relevant Regleringsbrev.232 Högskolor (meant the broad sense of government financed institutions) receive the following lines of funding: – A contribution towards the provision of education. – A contribution towards the conduct of research. – A variety of other budgetary contributions: these are used to ‘reward’ higher education institutes for special efforts made in the provision of higher education (e.g. special courses for which there is demand, such as remedial courses for teachers, courses in sign language etc.) and/or research, as well as contributions provided to higher education institutes that undertake special tasks (e.g. developing particular facilities for disabled students) or are making a particular effort to promote the quality of the provision of education.233 In addition, specific contributions exist for clinical (in particular medical) education and research.234 229 230 231 232 233 234

229 See Paragraph 4 Chapter 4 Högskolelag sfs 1992:1434. 230 The government is authorised to confer examensrätt on (new) education providers, see paragraph 6 jo. 2 Lag om tillstånd att utfärda vissa examina sfs 1993:792. 231 Högskoleverket 2008:37 R, Rättssäkerheten för studenter hos enskilda utbildningsanordnare med examensrätt, pp. 25–28. For tcn the situation is different: see Förordning om anmälningsavgift och studieavgift vid universitet och högskolor sfs 2010:543. 232 See Regleringsbrev för budgetåret 2017 avseende universitet och högskolor U2016/01219, 02223/UH, U2016/05494/BS(delvis), U2016/05633/UH. 233 The so-called ‘kvalitetspeng’. See Proposition 2016/17:1 Utgiftsområde 16 Utbildning och universitetsforskning, p. 303ff (budget number 2:64, Särskilda utgifter inom universitet och högskolor and 2:65, Särskilda medel till universitet och högskolor). 234 See Proposition 2016/17:1 Utgiftsområde 16 Utbildning och universitetsforskning, budgetnumber 2:66. See further also Proposition 2009/10:139 Fokus på kunskap – kvalitet i den högre utbildningen.

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4.3.2.1 Funding for Education As a basic point for departure, the yearly government budget will set out an overall ceiling (takbelopp) for each högskola separately – this represents the maximum amount of funding such an institute may claim from the state. In order to qualify for funding from this takbelopp, a högskola must in principle have:235 A. A student population. For each full-time student enrolled in a full academic year (helårsstudent) at the högskola, the institute receives an amount specified in the regleringsbrev (also referred to as ‘studentpeng’). The amount varies depending on the course followed (e.g. a student enrolled in a course in humanities entitles the institute to less funding than a course in medicine).236 B. Student performance. Each study credit obtained by a student enrolled at the higher education institute is added up and subsequently divided by 60 (the amount of study credits of a full academic year) – this is referred to as the helårsprestation. The product is then multiplied with the amount specified in the applicable regleringsbrev. If the amount of funding that a högskola is entitled to exceeds the budgetary ceiling, it is termed ‘overproduktion’. This claim may then be carried over to the next budgetary year and may be continued to be carried over as long as it does not exceed more than 10% of the takbelopp. It can then be used to claim additional funding in years in which there is more budgetary room (e.g. because the takbelopp was increased substantially or fewer students enrolled). In the case of underproduction (‘anslagssparande’), the difference between the funding that a högskola is entitled to and the takbelopp may also be carried over to the next budgetary year. ‘Savings’ so accumulated may also not exceed 10% of the takbelopp. In case of later overproduction, this reserve can then be claimed.237 235 236 237

235 sou 2005:48, Ett utvecklat resurstilldelningssystem för högskolans grundutbildning, pp. 51–52. 236 See for the amounts Regleringsbrev för budgetåret 2017 avseende universitet och högskolor U2016/01219, 02223/UH, U2016/05494/BS(delvis), U2016/05633/UH. 237 See further: L. Erikssons and U. Heyman, Resurser för utbildning och forskning, suhf Dnr 14/014 (2014) pp. 9–11.

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4.3.2.2 Funding for Research Direct support238 from the Swedish state for research in the higher education institutes has two main components:239 – Basfinansiering (general research funding): the basresurs. – Prestationsbaserat finansiering (performance-based research funding). The principles of the current system were introduced in 2008 and first applied in the budgetary cycle 2009–2012. It works as follows: in 2009 the State set an overall level of funding to be divided among the higher education institutes. First, all higher education institutes240 are entitled to the basfinansiering which is tied to the number of helårstudenter that the institute has: this is to ensure a link between the research profile of a högskola and the education it provides.241 This basic research contribution was at 8000 Swedish Krona (around €840) per helårsstudent per year with the number of helårstudenter in 2007 as a reference point.242 After the basfinansiering is deducted from the overall amount, the remaining funding is divided among the higher education institutes based on their performance on two indicators: their relative share in the number of publications and citations thereof and the relative share in obtaining external funding (e.g. research grants and the like).243 Each performance indicator weighs 50%.244 This, together, constitutes the basic division / reference point. From the budgetary year 2010 onwards, any increased funding for research as compared to the overall budgetary amount available in 2009 was based on 238 239 240 241 242 243 244

238 As opposed to support indirectly, e.g. from national research councils or state funded private bodies. 239 See sou 2007:81, Resurser för kvalitet, p. 296. 240 With the exception of higher education institutes which are specialised in providing education and research arts, music and the like, as well as the Swedish Defence Academy (Försvarshögskolan): the government considered that these institutes do not have sufficient ‘critical mass’ to participate in the system as introduced in 2009, see proposition 2008/09:50, Ett lyft för forskning och innovation, p. 54. Research in these institutes is instead financed by means of a lump sum, see Proposition 2008/09, Ett lyft för forskning och innovation, p. 57. 241 Proposition 2008/09:50, Ett lyft för forskning och innovation, p. 54. 242 Ibid. 243 For an extensive description of this system, see sou 2007:81, Resurser för kvalitet, pp. 295–312. 244 Proposition 2008/09:50, Ett lyft för forskning och innovation, 55.

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the performance indicators set out above. In addition, from that year onwards, 10% of the funding to which the higher education institute was entitled in the previous year (initially: 2009) according to the performance criteria was up for redistribution, with the key again being the share in the performance indicators.245 In essence, therefore, in 2010 each higher education institute was entitled to the funding received in 2009, corrected by two mechanisms: 1. 2.

Any new resources for research funding foreseen in 2010 was divided among these higher education institutes based on their relative share in the performance indicators. 10% of the resources allotted to all higher education institutes in 2009 on the basis of the performance indicators was added and then divided again in 2010 among these higher education institutes based on their relative share in the performance indicators.

From 2011 onwards, the system continues, with the difference that the redistribution between the higher education institutes is now arrived at by adding the amount that each institute received in the 2010 redistribution cycle, and increasing it by 10% of each of higher education’s share in the new resources allotted in 2010 (and so on).246 Finally, for the budgetary cycle 2013–2016 (extended to 2017–2019),247 the above system is modified in the following manner: 1. The basfinansiering of 8000 Swedish Krona per helårsstudent per year is retained, but the reference point for the number of students for this budgetary cycle is the average amount of helårstudenter in the period 2007–2011.248 2. The part of the resources allotted to higher education institutes based on performance indicators which is up for redistribution is increased to 20% from 2014 onwards. Thus, 20% of the funding received based on

245 246 247 248

245 For this indicator, the three-year average of the higher education institutes’ performance as regards the indicators is taken to avoid large fluctuations: Proposition 2008/09, Ett lyft för forskning och innovation, 58. 246 Proposition 2008/09:50, Ett lyft för forskning och innovation, 58. 247 In Proposition 2016/17:50, Kunskap i samverkan – för samhällets utmaningar och stärkt konkurrenskraft, p. 57 the government has proposed to extend the current system to the budgetary years 2017–2019, pending further review of the system. 248 Proposition 2012/13:30, Forskning och innovation, p. 58. In addition, all higher education institutes also receive a one-off increase in funding amounting to 1% of the anslag.

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­ erformance indicators in 2013 will be added and then distributed among p the higher education institutes based on their share in the performance indicators. After 2014, the previous amount up for redistribution will again be added, and increased with 20% of each of higher education’s share in the new resources allotted in 2014 (and so on).249 4.3.3 Principles of Funding Student Participation: The Studiestödslag The Studiestödslag250 (law on study support), supplemented by the Studiestödsförordning251 (decree on study support) sets out the framework as regards the conditions under which individuals are eligible for maintenance grants for study purposes, the composition of the grant so received and the provisions for repayment.252 Studiemedel (csnfs 2001:1). The overarching term used, studiestöd (support for studies) is composed of two subcomponents: the studiehjälp (study aid) and studiemedel (study allowances). The former is support provided to pupils between the ages of 16 and 20 and primarily meant to promote participation in upper secondary education (gymnasiehögskola);253 the latter is in principle capable of being claimed by all adults from age 20 onwards pursuing a wide range of educational pursuits, including studies at högskola or at the university level.254 The preparatory documents indicate that the main goal of the studiestöd system is to ensure that each citizen has the opportunity to enjoy good education without being hindered by gender, socio-economic background or other obstacles.255 The support so granted is considered an investment in society: (attainment of) education is seen as a means to promote the personal development of participants, allowing them to participate fully in an increasingly complex society; to further active citizenship and develop capacity for independent and critical inquiry, and to generally ensure economic, social and cultural progress.256 For our purposes, the focus of the next section will lie on the rules for eligibility for studiemedel for a course of study at a högskola or university. 249 250 251 252 253 254 255 256

249 250 251 252 253

Proposition 2012/13:30, Forskning och innovation, p. 57. sfs 1999:1395. sfs 2000:655. See in addition Centrala studiestödsnämdens föreskrifter allmänna råd om beviljning av See Chapter 2 Studiestödslag sfs 1999:1395 and sou 2013:52 Modernisering av studiehjälpen, p. 88. See further: http://www.regeringen.se/sb/d/13589 last visited 07.04.2017. 254 Proposition 1999/2000:10 Ett reformerat studiestödssystem, pp. 78–79. 255 Ibid, p. 65. 256 Ibid, p. 65.

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4.3.3.1 The Rules for Eligibility There are four main criteria that have to be fulfilled for an applicant to have a grundläggande rätt (the basic right) to studiemedel. The relevant authority for examining whether these conditions have been fulfilled is the Centrala Studiestödsnämnden (Central student grant authority; csn).257 Educational requirements. The applicant must be enrolled in a form of education eligible to receive studiemedel.258 The range of educational pursuits that are covered are broad: it includes all state supported higher education institutes at högskola or at the university level, as well as several specialised forms of education (in particular theological courses offered by various christian institutes, but also e.g. courses offered at polishögskolan).259 Also, courses offered at higher education institutes in another eu/eea Member State or Switzerland are eligible for studiemedel insofar these courses last at least three weeks and are pursued fulltime or part-time amounting to at least 50% of fulltime.260 The course in which a student is enrolled in abroad must be of sufficient quality, to be assessed by Universitetsrådet/högeskolerådet.261 Finally, in order to be eligible for portable student grants, the applicant must be eligible for student grants in general (grundläggande rätt)262 and in principle have resided in Sweden for two years in the last five years prior to the application or be able to prove that he or she has a genuine link with Sweden through other factors (such as a period of schooling, Swedish language capabilities, family links etc.).263 257 258 259 260 261 262 263

257 Paragraph 2, Chapter 1 Studiestödslag sfs 1999:1395. 258 Paragraph 2, Chapter 3 Studiestödslag sfs 1999:1395. 259 See Annex A and B to Studiestödsförordning sfs 2000:655. Whereas the focus here is on education at the tertiary education level, for completeness sake it should be noted that other forms of upper secondary education and/or vocational training are also eligible for studiemedel, see further Paragraph 2, second indent, Chapter 3 Studiestödslag sfs 1999:1395. 260 Paragraph 24 Chapter 3 Studiestödsförordning sfs 2000:655. See below. 261 Paragraph 21 Chapter 3 Studiestödsförordning sfs 2000:655. These institutions are government institutions which carry out a range of functions such as managing the centralised admissions system, provision of information about higher education courses and evaluation of foreign diploma’s. See further Förordning med instruktion för Universitetsoch högskolerådet sfs 2012:811. 262 See paragraph 21a Chapter 3 Studiestödsförordning sfs 2000:655. 263 Paragraph 23 Chapter Studiestödslag sfs 1999:1395, csn ställningstagande 2013-12-02 Tillämpning bosättningskravet, Dnr. 2013-113-9290.

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Age requirements. Studiemedel can be applied for by a person almost throughout his or her active adult life: from the second half of the calendar year in which the person is 20 years old until the calendar year in which the student turns 56.264 Nationality requirements. Persons with the Swedish nationality are ipso facto eligible to receive studiestöd.265 Under certain conditions, eligibility is extended to applicants with a nationality of another eu Member State who are then treated as if they were Swedish nationals for the purpose of the Studiestödslag and implementing legislation.266 Chapter 1 of the Studiestödslag provides that the following categories are so harmonised: – eu workers or self-employed persons, and their family members, who, on the basis of eu law, can claim equal treatment with Swedish nationals as regards social advantages.267 – Migrant eu citizens, and/or their family members that are joining or accompanying them, with a right to permanent residence and who, on the basis of eu law, can claim equal treatment with Swedish nationals as regards social advantages.268 For the definition as to who constitutes a ‘family member’ for the purposes of claiming studiestöd, reference is made to the Utlänningslag269 (Law on aliens) which in turn in essence refers to the categories listed in Articles 2 (2) and 3 (2) Directive 2004/38.270 Engagement requirements: full or part-time studies. Finally, in order to be eligible for studiemedel, the applicant must follow courses amounting to at least 50% of full-time studies and which last for a period of at least three weeks.271 264 265 266 267 268 269 270 271

264 265 266 267 268 269 270

Paragraph 3 Chapter 3 Studiestödslag sfs 1999:1395. Paragraph 4 Chapter 3 Studiestödslag sfs 1999:1395. Paragraph 4–5 Chapter 1 Studiestödslag sfs 1999:1395. Paragraph 4 Chapter 1 Studiestödslag sfs 1999:1395. Paragraph 5 Chapter 1 Studiestödslag sfs 1999:1395. sfs 2005:716. Paragraph 2, Chapter 3a Utlänningslag sfs 2005:716. Note, under Swedish law it is also possible for an eu citizen who lives together, or is married, with a Swedish national to get access to studiestöd after two years (without either having to be economically active), see: http://service.csn.se/CSNOrder/GemensammaFiler/Blanketter/4146A.pdf last visited 07.04.2017. 271 Paragraph 5 Chapter 3 Studiestödslag sfs 1999:1395. In practice this comes down to a study load of at least 0,75 ects per week: paragraph 4 Chapter 3 Studiestödsförordning sfs 2000:655.

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Exceptions to this rule exist in case of illness and/or where the person has to take time off from studies in order to care for a child or close family member.272 4.3.3.2 The Studiestöd System In order to understand the system, the following legend is helpful. One academic year is divided into two terms of study. The academic year consists of 60 högskolepoäng (study credits), divided over 40 weeks of study (at 1,5 högeskolepoäng per week). Holiday periods are not counted nor subsidised. Studiemedel is composed of studiebidrag (a grant) and studielån (a loan).273 It is allotted to a student, who fulfils the conditions set out above, for a period of 240 weeks of full time274 studies (equalling six years of full time study).275 In case of exceptional circumstances/reasons, this period may be extended.276 The student is in principle free to dispose of these weeks as he or she sees fit. However, in order to promote study progress, the study performance of the student (‘prövning av studieresultat’) may be taken into account before a request for (new) studiemedel is granted.277 The system works as follows. There are in essence three stages and each stage looks to ‘past performance’ to determine whether or not studiemedel will be granted.278 1.

Initial enrolment: where the student first enrols in a course offered at a higher education institute (högskola/university), he or she will be granted­ studiemedel on the basis of the number of study terms he or she subscribes to. For example, where a student subscribes to two terms (equalling one academic year / 40 weeks) he or she will receive 40 weeks of studiemedel. No ‘study performance test’ is applied at this stage.

272 273 274 275 276 277 278

272 Paragraph 24 Chapter 3 Studiestödslag sfs 1999:1395. See further Article 26–32 h Chapter 3 Studiestödsförordning sfs 2000:655. 273 Paragraph 1 Chapter 3 Studiestödslag sfs 1999:1395. 274 For the approach as regards part-time studies, see paragraph 10 Chapter 3 Studiestödslag sfs 1999:1395. 275 Paragraph 8 Chapter 3 Studiestödslag sfs 1999:1395. Note, however, that students over the age of 40 can be awarded another 40 weeks of studiemedel if there are special reasons (särskilda skäl). However, at the same time, from age 47 onwards, the period in which a student may claim studiemedel in the form of a studielån is reduced; see paragraph 9 Chapter 3 Studiestödslag. 276 Paragraph 8, fifth indent, Chapter 3 Studiestödslag sfs 1999:1395. 277 Paragraph 6 Chapter 3 Studiestödslag sfs 1999:1395 and paragraph 5 Chapter 3 Studiestödsförordning sfs 2000:655. 278 See further paragraph 5, Chapter 3 Studiestödsförordning sfs 2000:655.

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3.

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Second stage enrolment. When the student subsequently applies for studiemedel for the next set of terms (e.g. for the second academic year), the ‘first stage study performance test’ will be applied: a student will only receive new studiemedel if he or she obtained at least 62, 5% of the study credits subscribed to during his first application for studiemedel. Third stage enrolment. Any new request for studiemedel, after a student has completed at least 40 weeks of studies with studiemedel, will only be granted if 75% of study credits were obtained during the previous period of study for which studiemedel were requested.

The application for studiemedel is lodged at the csn. The student grant amounts that may be claimed are set relative to the ‘prisbasbelopp’; a basic reference number set yearly,279 which is used to calculate the value of various claims as regards social benefits.280 For the year 2017, it has been set at 44800 Swedish Krona (€4715).281 Table 4.7 Student grant and loan amounts in Sweden

Basic support

2017

Studiemedel282

Maximum283 5,59% of the prisbasbelopp per week: 2504,32 Swedish Krona (€263,54) Maximum 1,59%285 of the prisbasbelopp per week: 712,32 (€74,96) Maximum 4% of the prisbasbelopp per week: 1792 Swedish Krona (€188,58) €878,47

Of which studiebidrag284 Of which studielån Per month, in Euro (40 x max weekly budget / 12). 279 280 281 282 283 284 285

279 The base number, 36 396 Swedish Krona, was set in 1997 and is in essence adjusted for inflation. 280 Paragraph 7 Chapter 2 Socialförsäkringsbalk sfs 2010:110. 281 Förordning om prisbasbelopp och förhöjt prisbasbelopp för år 2017 sfs 2016:863. 282 Paragraph 11 Chapter 3 Studiestödslag sfs 1999:1395. 283 The maximum is adjusted based on whether the student engages in full or part-time studies. 284 Paragraph 12 Chapter 3 Studiestödslag sfs 1999:1395. 285 For completeness sake it should be mentioned that where the student in question is enrolled in upper secondary education (for which he or she could have received studiehjälp

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This basic grant is available to all students irrespective of family circumstances and the like. Income of the student will also not be taken into account, unless his or her earnings exceed the so-called ‘fribelopp’, set at 193,71% of the prisbasbelopp for one term (20 weeks of study) for a full-time student.286 In such cases, the maximum amount of studiemedel that can be claimed will be reduced.287 The Studiestödslag also provides for certain supplementary grants and loans which are available to students who qualify for, and have obtained, the basic studiemedel:288 – Students with children under 18 receive additional funding in the form of a grant: for the first child 0,33% of the prisbasbelopp per week; for the second child 0,22%; and for the third child, and any children thereafter, 0,11%.289 – Students from 25 years of age onwards can be eligible for a supplementary loan (tillägslån) amounting to 1,98% of prisbasbeloppet per week.290 Currently this loan is primarily restricted to those individuals who had an income (from work or self-employment;291 or from replacement parent income, föräldrapenning292) to the amount of 415% of the prisbasbelopp293 in the calendar year preceding the year in which the student enrols in a course of study. Such a supplementary loan is only provided to students who study in Sweden, in another eu/eea Member State or Switzerland.294 286 287 288 289 290 291 292 293 294

286 287 288 289 290 291 292 293

294

between the ages of 16–20) at age 25 or above, the maximum percentage of studibidrag is higher: 3,70%. See Paragraph 13 Chapter 3 Studiestödslag sfs 1999:1395 and Paragraph 9 Chapter 3 sfs 2000:655. The higher percentage can also be accorded to students younger than 25 years old, as well as students enrolled in tertiary education in case of special circumstances. For the former, see Paragraph 9a Chapter 3 Studiestödsförordning sfs 2000:655; the latter has currently not been implemented. Paragraph 17(1) Chapter 3 Studiestödslag sfs 1999:1395. Paragraph 17, third indent, Chapter 3 Studiestödslag sfs 1999:1395. See Chapters 6–8 Centrala studiestödsnämdens föreskrifter allmänna råd om beviljning av Studiemedel (csnfs 2001:1). Paragraph 13a–13b Chapter 3 Studiestödslag sfs 1999:1395 jo. Paragraph 11a Chapter 3 Studiestödsförordning sfs 2000:655. Paragraph 14 Chapter 3 Studiestödslag sfs 1999:1395. See further Proposition 1999/2000:10 Ett reformerat studiestödssystem, p. 86. Paragraph 12, first indent, Chapter 3 Studiestödsförordning sfs 2000:655. Paragraph 12, second indent, Chapter 3 Studiestödsförordning sfs 2000:655. The relevant reference amount is the prisbasbelopp of the year in which the individual in question enrols in a course of study: Paragraph 12, first indent, Chapter 3 Studiestödsförordning sfs 2000:655. Paragraph 12, third indent, Chapter 3 Studiestödsförordning sfs 2000:655.

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– Finally, a student can apply for a merkostnadslån (a loan intended to cover additional/special costs);295 this is relatively broadly applicable and can include loans to cover expensive purchases necessary for the studies (in particular musical instruments) but in particular also loans to cover costs as a result of studying abroad (e.g. travel costs, payment of tuition fees or insurance premiums).296 The part of studiemedel which constitutes a loan (either general or the specific categories mentioned here) accrue interest from the moment of first provision; the interest rate is calculated based on the cost of the Swedish state to obtain capital on the market averaged over three years.297 Payment takes place over a period of 25 years or until the person in question turns 60 after which any remaining debt is cancelled.298 Monthly instalments are calculated based on the size of the debt, the (remaining) repayment time and the interest rate; the overall yearly amount is in principle increased by two percent each year.299 4.4

The Tertiary Education System of the United Kingdom (England): Issues of Financing and Student Grants300

4.4.1 Background: The Organisation of the Education Sector In the English system, the primary school cycle lasts six years and is attended by pupils aged beteen five and eleven years. The secondary school cycle lasts from eleven to sixteen301 and is normally completed by means of taking a series of exams which lead to a General Certificate of Secondary Education (gsce).302 Students can choose in which subjects they take exams, although English, 295 296 297 298 299 300 301 302

295 Paragraph 15, Chapter 3 Studiestödslag sfs 1999:1395. See further Proposition 1999/2000:10 Ett reformerat studiestödssystem, p. 87. 296 See Chapter 8 Centrala studiestödsnämdens föreskrifter allmänna råd om beviljning av Studiemedel (csnfs 2001:1) for the different varieties. 297 See Paragraph 1 Chapter 4 Studiestödslag sfs 1999:1395 and http://www.csn.se/aterbetala /hur-mycket-ska-du-betala/ranta-lanekostnad last visited 07.04.2017. 298 Paragraph 4 Chapter 4 Studiestödslag sfs 1999:1395. 299 See Paragraph 8 Chapter 4 Studiestödslag sfs 1999:1395. 300 See for an overview of the relevant legislation relating to education https://webgate .ec.europa.eu/fpfis/mwikis/eurydice/index.php/United-Kingdom-England:Legislation last visited 07.04.2017. 301 See Section 2(1) and 2(2) Education Act 1996 c. 56. 302 The educational programme followed by the pupil (known as the ‘national curriculum’) is, however, of a cross-cutting nature in that it is divided into four key stages. The first

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maths and science (as well as certain other courses) are mandatory.303 After the gsce, students can enrol in various ‘further education’304 options which include more vocationally oriented forms of education as well schools and/ or so-called ‘sixth form colleges’ which provide education preparing the pupil for university study. This stage is completed by obtaining secondary school leaving qualifications such as the Business and Technology Education Council (btec), General Certificate of Education Applied Level (gce Applied Level) or General Certification of Education Advanced Level (gce Advanced Level).305 With the Further and Higher Education Act 1992,306 the divide (still observable e.g. in the Netherlands) between universities and polytechnics was removed; the English higher education landscape thus boasts a wide variety of higher education institutes providing various forms of education,307 ranging from ‘foundation degrees’ which are usually two year programmes tailored towards a particular profession or the development of a particular skill, to more generalist bachelor degrees (usually awarded in the ‘honours’ variant – meaning­ that the student successfully completed a dissertation) lasting between three and four years.308 An overall list of bodies that may award higher education degrees may be found in the Education (Recognised Bodies) (England)­

303 304 305 306 307 308

303 304

305

306 307 308

three key stages specify a fixed curriculum to be taught in all state schools; the fourth stage provides for a core, foundation and elective part. See Section 82ff Education Act 2002/32. The national qualifications are awarded by private bodies under the supervision of the Office of Qualifications and Examinations Regulation following the Education Act 2011 c. 21. See Section 82ff Education Act 2002 c. 32. See for a definition Section  2(3)(a) Education Act 1996 c. 56. See also: ‘further education’ Halbury’s Laws of England, Volume 35 (LexisNexis Butterworths, 2011), para. 22 and Halbury’s Laws of England, Volume 36 (LexisNexis Butterworths, 2011), para. 729 and references. See the entry United Kingdom (England), Assessment in General Upper Secondary Education on Eurypedia available at https://webgate.ec.europa.eu/fpfis/mwikis/eurydice/index .php/United-Kingdom-England:Assessment_in_General_Upper_Secondary_Education last visited 07.04.2017. C. 13. See Halbury’s Laws of England, Volume 36 (LexisNexis Butterworths, 2011), para. 809, 881 and references. See United Kingdom (England), First Cycle Programmes on Eurypedia available at: https://webgate.ec.europa.eu/fpfis/mwikis/eurydice/index.php/United-KingdomEngland:First_Cycle_Programmes last visited 07.04.2017. Academic standards to be achieved in this regard can be found on the website of the Quality Assurance Agency for Higher Education: http://www.qaa.ac.uk/assuring-standards-and-quality/the-qualitycode last visited 07.04.2017.

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Order 2013.309 Entry requirements for different programmes vary, with most bachelor programmes requiring the completion of a minimum number of gce Advanced Levels and a certain amount of gcse levels.310 After this so-called undergraduate level, a wide variety of post-graduate courses leading to a master degree (normally between one and two years) are available. 4.4.2 Principles of Higher Education Funding The United Kingdom lacks a single, overall higher education code;311 rather it is a composite from various sources including the Higher Education Act 2004, the Education Reform Act 1988 and the Further and Higher Education Act 1992. The provisions on higher education funding find their basis in Article 65 of the Further and Higher Education Act 1992, which specifies that the Higher Education Funding Council for England312 may provide funding to higher education institutes for the purpose of enabling the latter to provide education or to conduct research and connected areas. Higher education institutes so eligible313 are universities,314 institutions conducted by a higher education corporation315 or designated institutions.316 These are the publicly funded institutes. Beyond that a wide range of privately financed higher education institutes exist that can award degrees in their own right (recognised bodies) or can provide courses which lead to degrees awarded by such recognised bodies (these course 309 310 311 312 313 314 315 316

309 No. 2992. The Privy Council is in charge of designating the bodies so capable of awarding degrees, see Section 76 Further and Higher Education Act 1992 c. 13. 310 Ibid. 311 D. Farrington, ‘Great Britain’, in C. Russo (ed.), Handbook of Comparative Higher Education Law, (Rowman and Littlefield, 2013), p. 138. 312 Section 62 Further and Higher Education Act 1992. 313 Section 65(5) Further and Higher Education Act 1992. 314 Not comprehensively defined anywhere. The title ‘university’ can be awarded by the Privy Council on the basis of Section 77 Further and Higher Education Act 1992. Classically, universities have been established in England by papal grant or charter, but more recently by Royal Charter or Act of Parliament; see Halbury’s Laws of England, Volume 36 (LexisNexis Butterworths, 2011), para. 814. 315 Higher education corporations are a class of higher education institutes that came into being with the Education Reform Act 1988 c. 40 in which the higher education institutions maintained by local authorities were recast as higher education corporations. See Section 120ff Education Reform Act 1988 and Halbury’s Laws of England, Volume 36 (LexisNexis Butterworths, 2011), para. 835ff. 316 The Secretary of State may designate institutions to be eligible to receive public funding where these institutions provide higher education courses and where the provision of such courses constitutes the main educational activity (constituting 55% of full-time enrolments), see Section 129 Education Reform Act 1988.

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providers are termed ‘listed bodies’).317 The line between publicly and privately financed institutions is not fixed and institutions from either ‘side’ may cross over to the other. No particular ‘mission’ for higher education institutes as such seems to be connected with the receipt of such funds in the applicable legislation, unlike the countries examined previously. The Framework agreement between the Department for Business, Skills and Innovation and the hefce confirms that the latter has latitude in how it organises its task of supporting teaching and research in the higher education institutes, although it contains some instruction.318 The hefce is meant to dispense its tasks of funding and supervision with a view to enforcing quality in higher education (including using funding as leverage against non-complying institutes),319 fair and broad access for students from all layers of society and to protect public interest in higher education.320 However, it should be noted at this stage already that public funding is no longer the main source of income for higher education institutes: with the increase in tuition fees introduced first in September 2012 (see below), the greatest proportion of funding for higher education institutes now comes from student’s (prospective) resources, facilitated through the provision of government loans.321 The oecd estimates that, for the uk as a whole, 70% of resources spent on tertiary education are private.322 4.4.2.1 Private Funding: Tuition Fees There is a relative freedom of higher education institutes situated in England to set their tuition fees. The Higher Education Act 2004 only specifies a ­maximum

317 318 319 320 321 322

317 See Section  216 Education Reform Act 1988, as well as Education (Recognised Bodies) (England) Order 2013/2992 for a list of recognised bodies and Education (Listed Bodies) (England) Order 2013/2993 respectively. 318 Framework Document between the Secretary of State for Business Innovation and Skills and the Higher Education Funding Council of England of 18th December 2012, p. 2, available at http://www.hefce.ac.uk/media/hefce/content/about/introduction/ workinginpartnership/ourrelationshiptogovernment/frameowrk_doc_2012.pdf last visited 07.04.2017. 319 Which is, however, under the new tuition-fee funded system somewhat threatened, see Times Higher Education, Hefce treads warily amid dated legal framework, of 25 April 2013. 320 Framework Document between the Secretary of State for Business Innovation and Skills and the Higher Education Funding Council of England of 18th December 2012, p. 4, 11–12. 321 hefce, Guide to funding 2016–17: How hefce allocates its funds, (hefce, 2016), pp. 3–4, 14. 322 oecd, Education at a Glance 2014: oecd indicators, (oecd PUBLISHING, 2014), p. 236.

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(termed ‘higher amount’) where it concerns undergraduate (termed first degrees) courses – all (publicly funded) higher education institutes are allowed to charge the maximum as long as they agree fair access (e.g. for students from disadvantaged backgrounds).323 Currently, this is set at £9000 per academic year (about €10364).324 There is no fee limit imposed on postgraduate courses. The reasoning of the Browne review of the higher education system was that for such courses the benefits are mainly private in nature and an overall cap as such unnecessary.325 Only qualified persons, however, benefit from the maximum cap on fees. These are defined by the Schedule to the Student Fees (Qualifying Courses and Persons) (England) Regulations 2007/778. Union citizens, referred to as ‘ecnationals’ (including, according the definition in Article 1 of the Schedule, uk citizens) are qualifying persons when enrolled in a course if:326 – They have been ordinarily resident in the eea/Switzerland for three years preceding the first day of the first academic year of the course. – This three-year residence was not wholly or mainly for the purpose of receiving full-time education.327 4.4.2.2 Public Funding: hefce Contributions for Education Each year the government provides the hefce with a fixed budget which is then divided among the higher education institutes according to the ­funding framework set out by the hefce, the main the principles of which are set 323 324 325 326 327

323 See Section 33 jo. Section 24 Higher Education Act 2004 c. 8. See for example the London School of Economics and Political Science Access Agreement 2015–2016 available at: http:// www.lse.ac.uk/study/undergraduate/informationForTeachersAndSchools/widening Participation/pdfs/AccessAgreement2015.pdf last visited 07.04.2017. 324 Section 4 Higher Education (Higher Amount) (England) Regulations 2010, No. 3020. 325 J. Browne, Securing a sustainable future for higher education: An independent review of higher education funding and student finance (urn 10/1208), p. 55 available at: https:// www.gov.uk/government/uploads/system/uploads/attachment_data/file/422565/bis10-1208-securing-sustainable-higher-education-browne-report.pdf last visited 07.04.2017. 326 See Section 9 Schedule 1 to the the Student Fees (Qualifying Courses and Persons) (England) Regulations 2007 No. 778. 327 Some specific provisions are made for family members of uk citizens who have exercised their free movement rights and resided in another Member State under Article 7(1) of Directive 2004/38; these family members do not need to comply with the three year rule. Neither do family members of other eu citizens where the eu citizen him or herself resided in the eea/Switzerland for three years prior to enrolment, see paragraph 2 of Section 9 Schedule 1 to the the Student Fees (Qualifying Courses and Persons) (England) Regulations 2007.

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out in the Guide to funding 2016–17.328 For the year 2016–17, the budget is set at £3674 million.329 Three main pillars of funding exist: funding for teaching activities, research activities, and miscellaneous funding seeking to promote knowledge exchange, facility development and innovation. Funding for teaching activities330 mainly follows the (number of) student(s), with main adjustments made for the cost of the subject funded (e.g. medicine courses versus ‘classroom subjects’) and smaller corrections allocated to emphasise particular priorities such as student opportunity (e.g. disabled or parttime students) or as compensation for costs of operating in London.331 As a result of the changes in 2012, the hefce role has changed from providing general teaching funding to more specific allocations. The approach is as follows: 1.

2.

328 329 330 331 332 333 334

Division of subjects into different ‘price groups’ (A, B, C1, C2, and D) ranging from high cost (students enrolled in medical degrees) to low cost degrees (classroom-based subjects, e.g. the humanities). A correction is further made for postgraduate (taught) degrees, which receive additional funding (as students are not eligible for student loans for such degrees, see below). As such, for an undergraduate student in price group A, 10000 per student is allocated, and 11000 for a student in a postgraduate degree. In contrast, for classroom-based subjects, higher education institutes receive no funds for students either at undergraduate or postgraduate level.332 These figures are then multiplied by ‘full-time equivalent student numbers’ (ftes) that a higher education has in each price group, based on data of the previous year. In turn, the number arrived at may be multiplied by a scaling factor (so as to ensure that the hefce does not exceed its budget).333 For the determination of the ftes, only uk citizens and non-uk eu citizens are taken into account – third-country nationals are excluded.334

328 hefce, Guide to funding 2016–17, (hefce, 2016), available at: http://www.hefce.ac.uk/ pubs/year/2016/201607/ last visited 07.04.2017. 329 Ibid, p. 3. 330 The focus here is on the funding system which is based on the changes from 2012 onwards; so-called ‘new regime’ students which pay high(er) tuition fees than their pre-2012 (‘old regime’ students) colleagues. 331 hefce, Guide to funding 2016–17: How hefce allocates its funds, (hefce, 2016), pp. 5–6. 332 Ibid, p. 17. 333 Ibid, pp. 17–18. 334 Ibid, p. 15.

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Finally, an institution may qualify for additional targeted allocations based on the efforts it undertakes to promote access of disabled or disadvantaged students,335 facilities it provides for part-time students, its participation in the Erasmus scheme and its location (e.g. a London-based university). These allocations take place on a pro-rata basis, e.g. a fixed amount per ftes receiving a Disabled Student’s Allowance studying at an institution.

4.4.2.3 Public Funding: hefce Contributions for Research Funding for research follows the researcher. The system is relatively clear cut: funding is provided pro rata to the number of active full-time equivalent researchers in each of the institutions studied multiplied by the proportion of research produced which reaches a certain quality threshold determined in accordance with the Research Excellence Framework.336 Generally seen, the higher the quality, the greater the funding attracted. The number arrived at is then adjusted for the relative cost of research in that particular area (e.g. laboratory research and clinical trials have a higher weighting) and may be weighted further based on location (the London weighting) or particular policy priorities set by the government.337 Finally, higher education institutes can qualify for additional funding of various kinds which is referred to as miscellaneous funding. This can range from allocations for institutions successful at building bridges between academia and business or seeking to expand research facilities or to set up innovative research or teaching programmes.338 Principles of Funding Student Participation in Higher Education: The Student Support System of England339 The rules concerning maintenance grants for study purposes for students attending a course in England are set out in the Education (Student Support) R ­ egulations 2011 (hereafter the Regulations).340 The support thus provided applies to students in (some forms of) upper secondary and tertiary 4.4.3

335 336 337 338 339 340

335 336 337 338 339

Ibid, pp. 19–21. See generally http://www.ref.ac.uk/pubs/201401/ last visited 07.04.2017. hefce, Guide to funding 2016–17: How hefce allocates its funds, (hefce, 2016), p. 24ff. Ibid, pp. 28–31. The discussion here will focus on degrees provided at the undergraduate level / a ‘first degree’ within the meaning of Schedule 2 to the Education (Student Support) Regulations 2011. 340 S.I. 2011, no. 1986. See also Section  22 of the Teaching and Higher Education Act 1998 (c. 30).

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­education.341 The explanatory memorandum to the Regulations does not elaborate on the perceived purpose of the grants, however the Browne review indicates that student support should fulfil the dual function of ensuring broad participation and facilitating student investment in (their) higher education.342 The relevant authority administrating the overall scheme is the Student Loan Company.343 4.4.3.1 Rules of Eligibility Support to be provided under the Regulations is conditional on two main elements: having the status of ‘eligible student’ and being enrolled in a ‘designated course’.344 Special provisions apply to distance learning and part-time students, which will not be further discussed here.345 – Eligible students Unlike the other countries studied here, the Regulations do not provide automatic eligibility for student support for uk citizens.346 Rather, their access to student support is subject to the conditions set out in Article 2 of the E ­ ducation

341 342 343 344 345 346

341 See Section 22 of the Teaching and Higher Education Act 1998 (c. 30) which refers to ‘further education’ and ‘higher education’. See for a specification schedule 2 to the Education (Student Support) Regulations 2011. 342 As indicated by the principles of the reform it advocated, which was substantially adopted by the government. See J. Browne, Securing a sustainable future for higher education: An independent review of higher education funding and student finance (urn 10/1208), pp. 4–5. See further the government’s response: Higher Education, The Government’s response to Lord Browne’s Review, (Department for Business Innovation & Skills, 2011), available at: https://www.gov.uk/government/publications/higher-education-govern ment-response-to-lord-brownes-review last visited 07.04.2017. 343 See Section 22 jo. 23 Teaching and Higher Education Act 1998; see further http://www.slc .co.uk/about-us/remit.aspx last visited 07.04.2017. 344 Moreover, where it concerns the receipt of the maintenance loan, but not a tuition fee loan, the applicant should be under the age of 60: Section 69 Education (Student Support) Regulations 2011. 345 See for distance learning Part 10, and for the situation of part-time students Part 11 of the Education (Student Support) Regulations 2011. 346 The positions of British Overseas Territories’ citizens, British Overseas citizens and/or British nationals (and other categories, see https://www.gov.uk/types-of-british-national ity/overview last visited 07.04.2017) are not considered. The focus is on the British citizen, which is in addition an eu citizen. See also the Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’, oj [1983] C 23/1.

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(Student Support) Regulations 2011. Article 2(1) specifies that a person must fulfil the following cumulative conditions on the first day of the academic year of the course enrolled in. He or she must be: 1.

2. 3.

347 348 349 350 351 352 353 354

347 348 349 350

351

352

353

354

Settled in the United Kingdom.347 Article 33(2a) of the Immigration Act 1971348 specifies this to mean that ‘references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain’. uk citizens have the ‘right to abode’349 and thus fulfil this condition.350 Have his or her ordinary residence351 in England.352 Have had his or her ordinary residence for a period of three years in the United Kingdom preceding the first day of the first academic year of the course.353 However, where the person’s residence during any part of this three year period was wholly or mainly for the purpose of receiving fulltime education eligibility is excluded.354 Section 2(1)(a) Schedule 1 to the Education (Student Support) Regulations 2011. C. 71. Section 2(1)(a) Immigration Act 1971. See Section 1(1) Immigration Act 1971: ‘All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person’. In R v Barnet lbc ex parte Shah [1983] 2 A.C. 309, the House of Lords held that ‘ordinary residence was held to refer to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration’ (p. 344). Section  2(1)(b) Schedule 1 to the Education (Student Support) Regulations 2011. Section 1(4) Schedule 1 to the Education (Student Support) Regulations 2011 qualifies ordinary residence somewhat in that a person will also be considered an ordinary resident where the person would have been resident but for the fact that he or she, or a close family member (spouse/partner, parent or direct dependent ascendant), is or was temporarily employed outside of England. Section 2(1)(c) Schedule 1 to the Education (Student Support) Regulations 2011. The qualification in Section 1(4) Schedule 1 to the Education (Student Support) Regulations 2011 applies mutatis mutandis. Section 2(1)(d) Schedule 1 to the Education (Student Support) Regulations 2011. This subparagraph does not apply to persons whose ordinary residence is established in accordance with Section 1(4) Schedule 1 to the Education (Student Support) Regulations 2011 following Section 2(2) of the same Schedule.

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Article 8 provides a further specification for those uk citizens who have exercised their free movement rights. In that context, a uk citizen must: 1. 2. 3.

Be settled in the uk, and have been ordinarily resident in England and settled in the uk immediately prior to having departed the uk; and Have had his or her ordinary residence in the eea/Switzerland throughout a three-year period preceding the first day of the first academic year of the course enrolled into, while being ordinarily resident in the uk on the day on which the first term of the first academic year of the course begins.

When these conditions are fulfilled, the student is considered eligible. However, where the person’s ordinary residence for the three-year period in eea/ Switzerland was wholly or mainly for the purposes of receiving of full-time education, the person must also have been resident for a period of three years in the eea or Switzerland for three years before that (three year) period of ordinary residence referred to under point 2 above (so six years in total). Article 6 of Schedule 1 to the Education (Student Support) Regulations 2011 provides that economically active eu citizens and their family members, so-called eea migrant workers and eea frontier workers,355 and their family members,356 are considered eligible students for the purpose of the Regulations. However, certain conditions are attached to this: – The (family member of the) eea357 migrant worker who applies for student support must, in addition to being a worker in the uk, have his or her ordinary residence in England on the first day of the first academic year of the course.358 – This ordinary residence criterion is not applied to an eea frontier worker,359 who is defined as the eu/eea/Swiss national who resides in another Member State of the eu but works in England. – Finally, for both categories, the condition is imposed that the eea migrant worker and/or the relevant family member applying for the grant must have

355 356 357 358 359

355 See for the definitions Section 1 Schedule 1 to the Education (Student Support) Regulations 2011. 356 Ibid. The definition of family member follows that of the ‘family member’ in the sense of Article 2(2) of Directive 2004/38. 357 Used as shorthand for eu, eea or Swiss nationals. 358 Section 6(1)(b) Schedule 1 to the Education (Student Support) Regulations 2011. 359 Section 6(2) Schedule 1 to the Education (Student Support) Regulations 2011.

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had their ordinary residence in the eea or Switzerland for a three-year period preceding the first day of the first academic year of the course. In addition, Article 7 provides that the child of the Union/eea or Swiss worker who can derive rights on the basis of what is now Article 10 of Regulation 492/2011 shall also be eligible, provided he or she is ordinarily resident in England­on the first day of the first academic year of the course and has been ordinarily resident in the eea/Switzerland for a three-year period preceding this first day. Following Article 9, economically inactive eu nationals and their family members are also considered eligible students when enrolled in a designated course if: – They have been ordinarily resident in the eea/Switzerland for three years preceding the first day of the first academic year of the course. – This three-year residence was not wholly or mainly for the purpose of receiving full-time education. If these conditions are met, the eu national is entitled to receive that part of the support that covers the tuition fees.360 In order to also be eligible for the loans or grants that cover maintenance costs, further conditions need be ­fulfilled.361 In such circumstances, the eu national (other than a uk citizen) is required to show that he or she is ordinarily resident in England on the first day of the first academic year of the course and has been ordinarily resident in the uk for a three-year period immediately preceding that first day.362 Where such residence, again, was wholly or mainly for the purpose of receiving full time education, the person must in addition show that he or she was ordinarily resident in the eea/Switzerland immediately prior to this three-year period.363 Schedule 2 of the Regulations lists the courses enrolment into which makes students eligible for student support – designated courses. These include first degrees (e.g. bachelor degrees offered at higher education institutes), ­foundation degrees and a variety of higher education certificates and 360 361 362 363

360 361 362 363

Section 38(3) and Section 69(3) Education (Student Support) Regulations 2011 a contrario. See Section 10 Schedule 1 to the Education (Student Support) Regulations 2011. Section 10(1)(a–c) Schedule 1 to the Education (Student Support) Regulations 2011. Section 10(1)(d) Schedule 1 to the Education (Student Support) Regulations 2011.

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­diplomas.364 No financial support is in principle provided for students attending postgraduate courses (e.g. leading to a masters degree).365 In addition, the course should in principle be full-time,366 covering at least an academic year367 and be provided by an ‘authority-funded’ educational institution.368 Eligibility for support granted under the Regulations ends at the end of the academic year in which the student completes the designated course.369 It should be noted that no portability of student grants for a full course of study abroad is foreseen – only students attending courses provided by higher education institutes receiving funding by the hefce are eligible.370 An exception, however, exists for mobility within the context of Erasmus exchange.371 4.4.3.2 The Student Support System372 In principle, as seen, once eligible, the student retains his or her eligibility for student support for the period until he completes his (undergraduate) degree. The basic support package that may be claimed during this period consists of: – A tuition fee loan. – A maintenance loan and/or maintenance grant for low income households. 364 365 366 367 368 369 370 371 372

364 See also https://www.gov.uk/student-finance/who-qualifies last visited 07.04.2017. 365 Some exceptions exist where it concerns degrees in education, social work or healthcare, see https://www.gov.uk/funding-for-postgraduate-study last visited 07.04.2017 and the definition of the terms ‘healthcare bursary’ and ‘higher education bursary’ in Section 2 Education (Student Support) Regulations 2011. Moreover, disabled persons who attend postgraduate courses may qualify for some additional support: Section  159 Education (Student Support) Regulations 2011. 366 Section 5(1)(b)(i) Education (Student Support) Regulations 2011. 367 Section 5(1)(c) Education (Student Support) Regulations 2011. See further ‘academic year’ as defined in Section 2 Education (Student Support) Regulations 2011. 368 Section  5(1)(d) jo. 5(7) Education (Student Support) Regulations 2011. See further the terms ‘authority-funded’, ‘private institution’, ‘public funds’ and ‘publicly funded’ as defined in Section 2 Education (Student Support) Regulations 2011. 369 Section 6(3) Education (Student Support) Regulations 2011. See Section 7 for situations in which the student transfers courses before completion. 370 Section 5(1)(d) jo. 5(7) Education (Student Support) Regulations 2011. 371 Section 5(1)(d)(3) jo. 5(7) Education (Student Support) Regulations 2011. 372 For our purposes, the system as in place for students starting on the 1st of September 2012 will be taken into account.

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The tuition fee loan is in principle designed to cover the full tuition charged by the higher education institute in England373 (up to a maximum of £9000374) per academic year (about €10575) and is subject to a time limitation: it is only available for the ordinary duration375 of the course plus one academic year.376 Any time spent (for which funding was received) on previous courses before the transfer to the present course is in principle subtracted from the available amount of academic years for which funding is made available.377 Moreover, it is only available in the full amount for students attending publicly funded courses. For students attending courses at a private institution a maximum loan of £6000 (€7050) applies.378 Finally, it cannot be claimed in connection with attendance in a course which leads to a degree equivalent or lower to a degree the student already possesses.379 This applies as a general rule to all types of degrees, including those a student may hold from an institution outside the United Kingdom: see the definition of ‘equivalent or lower qualification’ provided for in Article 2 Education (Student Support) Regulations 2011 jo. paragraph 5 of that Article. The maintenance loan is available to all eligible students under the age of 60 and may be claimed as long as the degree in connection with which the loan is requested is not equivalent or lower to a degree the student already possesses.380 The maximum amount that may be claimed varies from £4806 to £8432 (€5650 – €9907) depending on which category (A – D) the student belongs to.381 Relevant factors in assigning students to such categories are the 373 374 375 376 377 378 379 380 381

373 Section 23(2) Education (Student Support) Regulations 2011. 374 Section  23(3) Education (Student Support) Regulations 2011. Unless the circumstances in Section 24 Education (Student Support) Regulations 2011 apply (e.g. transfer from one course to another). 375 See Section 2 Education (Student Support) Regulations 2011. 376 Section 20 Education (Student Support) Regulations 2011. 377 Section 21 Education (Student Support) Regulations 2011. See Section 22 for exceptions concerning non-first degrees (e.g. upper secondary education). 378 Section 23(4) Education (Student Support) Regulations 2011. This does not apply if that institution provides that course on behalf of a publicly funded institution. 379 Section 13(1)(b) Education (Student Support) Regulations 2011. Exceptions exist in Section 13(2–4) Education (Student Support) Regulations 2011. 380 Section 69 (1)(a) Education (Student Support) Regulations 2011. Exceptions exist where the designated course leads to certain qualifications (such social worker) as mentioned in Section 69(2) Education (Student Support) Regulations 2011. 381 See Section 76 Education (Student Support) Regulations 2011. The amount also varies depending on whether it is the final year or not of the studies, see e.g. paragraph 3 and 9 of the previously mentioned Section.

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date of commencement of the studies, whether the student resides at home or not, or is abroad on an Erasmus exchange etc.382 The system determining how much a student can claim works as follows:383 – Where the student’s household income384 is greater than £42875, the student is entitled to the full loan amount minus £1 for every complete £9,90 that the household income exceeds this threshold. – Where the student’s household income is less that £42875, the student is entitled to take out the full maintenance loan minus (half the) maintenance grant received (see below). The maintenance grant is available to students whose household income is below £42641 (a special set of provisions applies to household incomes between £42641 and £42875385). The maximum amount that may be claimed is £3482 where the income is equal to or below £25000; scaling takes place for incomes between the upper and lower limit.386 In addition, it is a condition to receive this grant that the student for that year qualifies for a fee loan (meaning that if that fee loan is exhausted or the student is barred from receiving due to possession of an equivalent degree to the one enrolled in, no maintenance grants may be claimed).387 Beyond the basic package, additional support is available for disabled students and students with children or dependent spouses or parents.388 In addition, under certain circumstances travel grants are available to eligible students in courses of dentistry and medicine, and/or in connection with Erasmus exchange.389 In terms of repayment, the current system is based on an income contingent loan approach: students borrow, in essence, against their future income with the state acting as a bank. The interest accrual on the loans stands at the inflation index increased by up to 3% (4,6% total for the academic year 2016–17390). Annual repayment under the current, post 2012 reform system, is at a rate of

382 383 384 385 386 387 388 389 390

382 See Section 90 Education (Student Support) Regulations 2011. 383 Section 76 Education (Student Support) Regulations 2011. 384 See schedule 4 of the Education (Student Support) Regulations 2011. 385 See Section 76 (6) and (7) Education (Student Support) Regulations 2011. 386 Section 59(1) Education (Student Support) Regulations 2011. 387 Section 56(3) Education (Student Support) Regulations 2011. 388 Part 4, Chapter 4 Education (Student Support) Regulations 2011. 389 Part 4, Chapter 5 Education (Student Support) Regulations 2011. 390 See http://www.slc.co.uk/services/interest-rates.aspx last visited 07.04.2017.

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9% of every pound earned over 21000. If the loan is not repaid after 30 years, it is written off.391 4.5

Issues of eu Law: An Analysis

Both for ease of analysis as well as due to the distinction made in the case law of the Court of Justice between issues dealing with access to education and the conditions under which the free movement of students is exercised, the higher education funding principles and the ‘student funding’ conditions will be examined separately below. For that purpose, the four countries studied in detailed here will be the focal point; however where necessary or pertinent reference will also be made to the systems of other Member States. At the outset, an overall remark with regards to the legality of ‘renvoi clauses’.392 4.5.1 Renvoi Clauses: Importing eu Law without Defining How Both the system of funding higher education establishments and the student grant system of the Netherlands refer at several stages to Article 2.2 wsf 2000. It will be reminded that this article specifies a category of persons who fulfil the ‘nationality’ criterion: Dutch nationals, persons whose position must be harmonised with Dutch nationals on the basis of international/eu law and persons whose position is to be harmonised with Dutch nationals on the basis of national law. This article plays a pivotal role throughout: the question whether or not a person fulfils the nationality requirement is a basis both for determining the level of the tuition fee to be paid by the student, as well as for the question whether or not the enrolment of a student counts for higher education financing. Similarly, under the Wet studiefinanciering 2000, Article 2.2 wsf 2000 is one of the three essential requirements that need to be satisfied in order for an applicant to be eligible for student loans. However, notwithstanding its importance, it is very much undefined in nature. In particular, as regards its second limb, under which eu nationals also fall, it in essence simply states: ‘where persons are entitled to equal treatment on the basis of international/eu law (in the matters of student grants / higher education access issues), the position of those persons will be harmonised with

391 392

391 See C. Crawford and W. Jin, Payback time? Student debt and loan repayments: what will the 2012 reforms mean for graduates?, The Institute for Fiscal Studies Report R93 (2014), p. 7. See also https://www.gov.uk/student-finance/repayments last visited 07.04.2017. 392 My thanks go to professor Bruno de Witte for suggesting this term.

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Dutch nationals’. It thus seeks to import, wholesale and without specification, the case law defining the scope of equal treatment of Union citizens in matters of access to education and/or financial support for students. This means that the law provides no clear indication, either for the higher education institutes or for the students themselves, as to when and under what conditions eu citizens fulfil the nationality criterion for the purposes of funding (including who is to pay the higher tuition fee or not) and/or student loan eligibility. Rather, the (in)correct understanding of eu law and the case law of the Court, can only be gleaned indirectly, e.g. from the formulation of Article 3b Besluit Studiefinanciering 2000 a contrario (which gives some general indications) and the decision-making practice and website of the duo. Similar practices with various degree of specification of the relevant legal positions seems to exist in other Member States. The Austrian Studienförderungsgesetz provides that eu citizens will be treated equally to Austrian nationals where required by the relevant treaties;393 however the relevant student grant authority, the Studienbeihilfebehörde, does not provide detailed rules even online as to when exactly eu citizens are eligible ‘due to the complexity of the matter’.394 Finland395 also relies on a ‘renvoi’ approach, with no further indications in the law. However, some of basic indications on the website of the Finnish student grant authority suggest that it may be applying conditions in violation of eu law.396 As seen above, Belgium (Flanders) and Sweden have slightly more extensive provisions in the legislation itself, specifying that workers and their family members, as well as permanent residents, are eligible, but some of the modalities remain unclear (e.g. when is one a child of a Union worker, does the relevant authority apply Directive 2004/38 and/or Regulation 492/2011 with related case law?). This more extensive (but still incomplete) approach is also visible in Luxembourg, for example.397 More complete 393 394 395 396 397

393 § 2 jo. 4(1) Studienförderungsgesetz 1992, BGBl. Nr. 305/1992. 394 http://www.stipendium.at/studienfoerderung/studienbeihilfe/wer-hat-anspruch/ last visited 07.04.2017. 395 Paragraph 1 Chapter 1 of Opintotukilaki 1994/65. 396 http://www.kela.fi/web/sv/studiestod-for-vem last visited 07.04.2017. In particular, for student-worker status, Finland seems to require 18 hours of employment which far exceeds the 8–10 hours suggested by case law: Case C-444/93, Ursula Megner and Hildegard Scheffel v Innungskrankenkasse Vorderpfalz, now Innungskrankenkasse Rheinhessen-Pfalz, ecli:eu:C:1995:442, para. 18–20. 397 Article 3(2) Loi du 24 juillet 2014 concernant l’aide financière de l’Etat pour études supérieures, No. 139/2187.

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a­ pproaches, in which an attempt is made to set out the legal context in a more detailed fashion, can be seen in the Denmark,398 Germany399 and the United Kingdom (see above). There is an argument to be made that the use of such renvoi clauses, without further specification by the appropriate authorities as to their understanding of what (the case law of) eu law requires, does not comply with eu law. First, it will be reminded that it is settled case law of the Court that Member States are required to take into account the general principles of eu law, to which the principle of equal treatment belongs,400 when implementing their obligations under eu law. This follows from the principle of sincere cooperation set out in Article 4(3) teu.401 Particularly pertinent among these principles is the obligation of Member States to ensure that their chosen method of implementation secures sufficient legal certainty, which in view of the Court means that: (…) Member States must implement their obligations under Community law with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements flowing from that principle (…). Mere administrative practices, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State’s obligations under Community law, since they maintain, for the 398 399 400 401

398 Paragraph 2a Bekendtgørelse af lov om statens uddannelsesstøtte (su-loven), lbk no. 661 of 29th of June 2009 (as amended) and Paragraph 2–8 Bekendtgørelse om Statens Uddannelsesstøtte (su-bekendtgørelsen), bek no. 792 of 25th of June 2014. 399 See Article 8(1) Bundesausbildungsförderungsgesetz, 2010 BGBl. I S. 1952 and the Allgemeine Verwaltungsvorschriften zum BAföG, 1991 GMBl. S. 770 (as amended). It should be noted that the German legislation does not seem to include the position of ‘studentworker’ as eligible for student grants: only provisions as regards ex-workers are provided for. 400 Joined Cases 117/76 and 16/77, Albert Ruckdeschel & Co. and Hansa-Lagerhaus Ströh & Co. v Hauptzollamt Hamburg-St. Annen and Diamalt ag v Hauptzollamt Itzehoe, ecli:eu:C:1977:160, para. 7. See also, Case C-292/97, Kjell Karlsson and Others, ecli:eu:C:2000:202, para. 35–38. 401 Joined Cases C-480/00 to 482/00, C-484/00, C-489/00 to C-491/00 and C-497/00 to C-499/00, Ribaldi and others, ecli:eu:C:2004:179, para. 42–43. See further J.T. Lang, ‘Article 10 ec: The Most Important “General Principle” of Community Law’, in U. Bernitz et al. (eds.), General Principles of ec Law in a Process of Development, (Kluwer Law International, 2008), pp. 93–94.

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persons concerned, a state of uncertainty as regards the extent of their rights in an area governed by Community law (…).402 Secondly, it is necessary to establish which obligations exactly rest upon the Member State in this area. The basic point of departure is clear: as a general principle, eu law requires that Member States do not discriminate on grounds of nationality when it comes to, inter alia, access to higher education403 and as regards the entitlement to benefits such as student grants and/or loans.404 Any limitation on that principle of equal treatment, even if sanctioned (in a general sense) in the Court’s case law, must still be titled an ‘exception’/derogation. After all, the case law of the Court of Justice does not indicate that foreign students are in a different situation from domestic students – in such cases restricting access could be legitimate (no breach of the right of equal treatment) as it reflects differently situated persons. Instead, however, the case law focusses on weighing different interests against each other, allowing certain ‘objective considerations’ relating to the financial sustainability of student grant and/or loan systems, for example, to trump eu citizens’ access to these benefits under equal conditions to host Member State nationals. Should the backdrop of these considerations relating to these objective considerations change (as will be argued, it has for access to student support under the system in England), the principle of equal treatment regains its full force. The status of the limitations to equal treatment as an exception is an important qualification. Under eu law, derogations by Member States from rights derived from eu law must, apart from substantive standards, also fulfil certain procedural requirements. Consider for example the situation in the healthcare cases: whereas Member States are allowed to set up and/or maintain a system for prior authorisation for cross-border intra-mural care, which derogates from the general principle of free movement of services, the conditions under which such prior authorisation is granted and/or refused must be based on

402 403 404

objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’

402 Case C-313/99, Gerard Mulligan and Others v Minister for Agriculture and Food, Ireland et Attorney General, ecli:eu:C:2002:386, para. 47. 403 Case C-73/08, Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, ecli:eu:C:2010:1815, para. 29–33. 404 Case C-209/03, The Queen, on application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills, ecli:eu:C:2005:169, para. 30–47.

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d­ iscretion, so that it is not used arbitrarily. Such a system must furthermore be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant authorisation must also be capable of being challenged in judicial or ­quasi-judicial proceedings.405 Similarly, in Collins (concerning a claim for equal treatment as regards a jobseeker’s allowance) and Förster (concerning access to student grants of a Union citizen), the Court emphasised that derogations from the general principle of non-discrimination on grounds of nationality under Article 18 tfeu must fulfil certain procedural preconditions. Where a Member State employs a residence criterion in order to establish a genuine link between the Union citizen claiming a certain benefit and the host Member State, the application of that requirement must rest ‘on clear criteria known in advance and provision must be made for the possibility of a means of redress of a judicial nature’.406 From the forgoing it is submitted here that where a Member State seeks to, in essence, import eu law, and the Court’s judgments interpreting that law, wholesale into its domestic legal system by means of a renvoi clause, it must set out its understanding of that law in a manner that complies with the principle of legal certainty. This is especially important here since most eu Member States seek to rely on the derogations sanctioned by the Court in that case law. The various legislators seem to be of the view that ‘equal treatment – justified exceptions=what is required by eu law’.407 Moreover, the requirement as suggested here would not unduly burden the Member State. In Förster the Court considered a beleidsregel (policy rule) of the relevant administrative authority (binding upon it, and published in an official gazette) to satisfy the requirements of legal certainty.408 405 406 407 408

405 Case C-372/04, The Queen, on the application of: Yvonne Watts v Bedford Primary Care Trust and Secretary of State for Health, ecli:eu:C:2006:325, para. 116. 406 Case C-138/02, Collins v. Secretary of State for Work and Pensions, ecli:eu:C:2004:172, para. 72, Case C-158/07, Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep, ecli:eu:C:2008:630, para. 56. See further also: Joined Cases C-197/11 and C-203/11, Eric Libert a.o and All Projects & Developments nv and Others v Vlaamse Regering, ecli:eu:C:2013:288, para. 57–58. 407 See e.g. The discussion accompanying the law implementing Directive 2004/38 in the Netherlands: Kamerstukken ii 2005/06, 30493, nr. 3 p. 5ff. 408 Case C-158/07, Förster, ecli:eu:C:2008:630, para. 57.

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An example of such a comprehensive policy rule could be the German Allgemeine Verwaltungsvorschriften zum BAföG, which sets out the main ­considerations for persons to be considered ‘workers’ and the like, to be applied by the administrative authorities.409 In contrast, such a comprehensive (public) policy rule does not exist currently in the Netherlands. The Besluit Studiefinanciering only sets out in very general and in very basic terms who is entitled to student grants (and thus not necessarily covers the issue of higher education funding).410 There is also a policy rule which sets out the understanding of who constitutes a ‘worker’ for the purposes of receiving student grants (see more on this below).411 The website of the duo, finally, provides additional information, but such a source cannot be considered to fulfil the requisite requirements of legal certainty (the information is general and easily changeable) set out above. Overall, therefore, the end result is a patchwork affair combining a variety of sources. In such a context, a renvoi clause is employed both for the purposes of higher education funding as well as for the eligibility of individuals for student grants breaches Article 4(3) teu jo. Article 18 tfeu. Similar reasoning can apply to the other countries studied, such as Belgium (Flanders) and Sweden. For the uk (England), in addition to relatively extensive provisions of Schedule 1 to the Education (Student Support) Regulations 2011, there exists a ‘practioners’ guide with detailed information on assessing eligibility. Whereas this makes monitoring the practice of the Student Loan Company easier, it does not quite fulfil the requisite legal certainty requirements. In fact, a disclaimer is added to the document that This guidance is designed to assist with the interpretation of the Student Support Regulations as they stand at the time of publication. It does not cover every aspect of student support nor does it constitute legal advice or a definitive statement of the law. As such, compliance with eu law even in the context of the Education (Student Support) Regulations 2011 is doubtful. 409 410 411

409 Allgemeine Verwaltungsvorschrift zum Bundesausbildungsförderungsgesetz (BAföGVwV 1991) 15.10.1991 (GMBl. S. 770), as amended. 410 See Article 3a and 3b bsf 2000. 411 Beleidsregel van de Minister van Onderwijs, Cultuur en Wetenschap van 13 December 2012, nr. HO&S/463528, inzake het controlebeleid migrerend werknemerschap op grond van artikel 2.2, eerste lid, onder b, van de Wet studiefinanciering 2000, Stcrt. 2013, 6218.

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Conditions of Access to Higher Education and Higher Education Funding Principles: Compatibility with eu Law As a general principle, Member States are free to organise their higher education system, including the financing thereof, in accordance with their desired educational philosophy and their views as to the respective roles of state, market and individual therein. However, when exercising this competence, Member States must have due regard to eu law.412 In particular, Member States may not discriminate either directly or indirectly against foreign students with a nationality of one of the Member States, nor otherwise hinder their access. Similarly, it may not put its own nationals at a disadvantage due to the fact of them having exercised free movement rights.

4.5.2

4.5.2.1 Belgium and Sweden: A Lack of Access Issues For Belgium (Flanders) no particular issues are flagged at this stage. Similarly, as identified above, Sweden charges no tuition fee and the financing of higher education institutes makes no distinction between students with a Swedish nationality and students with a nationality from other Member States of the eu. No particular access issues are flagged at this stage either. 4.5.2.2 The Netherlands: Tuition Fees and the Residence Rule For the Netherlands, no particular issues are to be flagged at this stage with the demise of the woonplaatsvereiste. Until the 1st of September 2013,413 Article 7.45a (1)(b) whw required students to live in the Netherlands, Belgium, Luxembourg, or in the German Länder of Bremen, Lower Saxony or North-Rhine Westphalia if they wanted to be eligible for the lower wettelijk collegegeld. Otherwise they had to pay the (much higher) instellingscollegegeld. Such a residence criterium is indirectly discriminatory on grounds of nationality as Dutch nationals (and/or certain eu citizens) are more likely to fulfil this requirement than others. After a complaint by eu-activist Ger Essers, the Commission started an infringement procedure, claiming a breach of Article 18 tfeu. However, the case never made it past the written stage as the Netherlands gave in and changed the relevant law.414 412 413 414

412 Case C-73/08, Bressol, ecli:eu:C:2010:1815, para. 28–29. 413 The old text can still be found on this link: http://wetten.overheid.nl/BWBR0005682/ volledig/geldigheidsdatum_30-08-2013 last visited 07.04.2017. 414 See the Kamerbrief Minister van Onderwijs, Cultuur en Wetenschap aan de Tweede Kamer, Vervallen woonplaatsvereiste in collegegeldbepaling hoger onderwijs, Kamerstukken ii 2012/13, 31288, nr. 326. The relevant legislation removing this woonplaatsvereisteiste is

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Notwithstanding, it is important to complete the legal reasoning even in the absence of a Court judgment. After all, there is an argument to be made that students should in principle be able to reclaim tuition fees paid on the basis of the application of a rule in violation of eu law (here: the difference between the instellingscollegegeld and the wettelijke collegegeld). The imposition of such a clearly indirectly discriminatory measure by the Netherlands can hardly have been considered ‘in good faith’ and thus there seems little reason to limit the temporal effects of the interpretation of eu law.415 The Netherlands would probably have tried to justify the rule by claiming it was necessary in order to combat fraud in relation to higher education funding. In 2001 some hogescholen had made use of various constructions in order to artificially increase their student numbers (known as the ‘ghost student’ or spookstudent phenomenon) with a view to laying claim to a greater part of the higher education budget (see above for the system applied).416 It is, however, unlikely that this ground for justification would have been accepted for the following reasons. Applying the standard set by Bressol, the Netherlands would first have to show a real, current risk for the fraud by higher education institutes across the board. A difficult task, since the original issue concerned mostly certain hogescholen (and not the universities) and even in 2001 was relatively limited in scope (and the ‘foreign ghost student’ in particular was a limited phenomenon and only a part of the larger problem).417 Secondly, it is doubtful whether the rule would have been considered suitable; after all it was never the students that committed the fraud, but rather the the institutions at which they studied. As such, the burden rested on the wrong party. Finally, also in terms of proportionality, the measure does not pass 415 416 417

the Wet van 10 juli 2013 tot wijziging van de Wet op het hoger onderwijs en wetenschappelijk onderzoek en enkele andere wetten in verband met de uitvoering van diverse maatregelen, aangekondigd in de Strategische Agenda Hoger onderwijs, Onderzoek en Wetenschap (Wet Kwaliteit in verscheidenheid hoger onderwijs), Stb. 2013, 298. 415 See for the conditions under which the Court is normally willing to consider limiting the temporal effects of its judgments: C. Waldhoff, ‘Recent developments relating to the ­retroactive effect of decisions of the ecj’, 46(1) Common Market Law Review (2009) 173, p. 174. See also Case 309/85, Bruno Barra v État belge et Ville de Liège, ecli:eu:C:1988:42, in which the Court seemed unwilling (admittedly for procedural reasons) to limit the temporal effect of its judgment in Gravier. 416 See the response by the then assistant director of the department for Higher Education and Study Finance of the Ministry for Education, Culture and Science in Transfer: http:// issuu.com/transfer_nuffic/docs/120307_nuf_transfer_06_web/7 last visited 07.04.2017. 417 See extensively in this regard R. Louw, Het Nederlands hoger onderwijsrecht, (Leiden University Press, 2011) pp. 133–138.

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­ uster: strict application would lead to situations of students having to pay m exorbitant amounts of tuition fees simply because they may have trouble finding a place to live in the first few months of their study. In addition, students were also forced to maintain a place of residence in the countries listed despite the fact that full-time attendance might not have been necessary, for example because the student only needed to complete one more course or had to write their thesis. Finally, less restrictive measures achieving the same goal could easily be imagined, such as a centralised registration process (already present in the form of ‘studielink’) which requires proof of identity or something in that order with a view to eliminating ‘ghost students’.418 The recent ruling in Sopora419 does not change that statement. In that case, the Court considered the legality of the Dutch 30% rule, which provides a tax break for those workers who resided more than 150 kilometers from the Dutch border prior to taking up employment in the Netherlands (hereafter: the >150 km category). The tax break was granted in order to compensate workers for the costs of having to relocate (at least part of the week) to the Netherlands. The Court was asked whether this rule breached Article 45 tfeu in that its workers who lived outside the Netherlands but at a distance of less than 150 kilometres (hereafter the 150 category versus the