Freedom of Movement and Financial Aid for Students: Some Reflections on Grzelczyk and Fahmi and Esmoris-Cerdeiro Pinedo Amoris
| Author | Anne Pieter van der Mei |
| Published date | 01 September 2001 |
| Date | 01 September 2001 |
| DOI | http://doi.org/10.1023/A:1014779404898 |
| Subject Matter | Article |
European Journal of Social Security, Volume 3/3, 181-207,
200l.
©Kluwer Law International (KLI). Printed in the Netherlands.
ANNE
PIETER
VAN
DER
MEI*
181
Freedom
of
Movement and Financial
Aid
for
Students: Some Reflections on Grzelczyk and
Fahmi and Esmoris-Cerdeiro Pinedo Amoris
1. INTRODUCTION
On 13 February 1985 the Court
of
Justice
of
the European Communities (hereafter the
Court) established in Gravier the legal foundations
of
the free movement
of
students
within the European Community by holding that the conditions for access to vocation-
al training fall within the scope
of
the E(E)C Treaty and the non-discrimination provi-
sion contained in Article 12(1) EC (at the time Article 7 EEC).l The recognition
of
the
right to study in other Member States contributed significantly to the long-pursued pol-
icy objective
of
promoting student mobility within the Community- but Gravier did
not, and until now Community law does not guarantee that all Community citizens are
actually able to take up studies in other Member States.' In particular, students who
wish to follow an entire course
of
study in another Member State, and who thus fall out-
side the scope of the well-known Socrates-Erasmus programme, still face numerous
obstacles.t One of the most important
of
these involves financial aid for students. Three
years after Gravier, the Court ruled in Lair that students can only claim grants in the
*
2
3
4
Assistant Professor in European Union Law, Department ofInternational and European
Law, University
of
Maastricht, P.O.Box
616,6200
MD Maastricht, Netherlands. E-mail:
ap.vandermei@ir.unimaas.nl.
Case C-293/83 Gravier [1985] ECR 593. See further A.P. VAN
DER
MEl,Free Movement
of
Persons within the European Community -Cross-Border Access to Public Benefits
(Oxford, Hart Publishing, forthcoming) Chapter 5Section 4.1.
See e.g. Resolution
of
the Ministers
of
Education meeting within the Council
of
6 June
1974, published in Council
of
the European Communities -General Secretariat,
European Educational Statements (Luxembourg, 1987), in which it was stated that co-
operation in the field
of
education should be aimed at encouraging 'the freedom
of
movement and mobility
of
teachers, students and research workers'.
Indeed, since Gravier student mobility among the Member States has increased consid-
erably. See e.g.
GORDON/JALLADE,
"'Spontaneous" Student Mobility in the European
Union: A Statistical Survey', European Journal
of
Education, 1996, pp. 133-151.
See in particular the European Commission's Green Paper 'Education, Training,
Research: The Obstacles to Transnational Mobility' (Bull. EU, Suppl. 5/96 and
COM(96) 462 final).
EUROPEAN JOURNAL OF SOCIAL SECURITY
182
host State in as far as these are intended to cover tuition and enrohnent fees and that,
'at the present stage of development of Community law,' grants covering maintenance
costs fall outside the scope
of
Community
1aw.
5As a rule, nationa11aw does not confer
upon Community students a right to a maintenance grant with the result that the costs
of food, accommodation and travel have to be borne by the students themselves and/or
by their parents. For many students, in particular those from low-income families, this
often means that they are unable to study in another Member State.
.However,
recent
case
law.
suggests that studying abroad may become arealis-
tic option for many of these students. Firstly, in
Grzelczykf
the Court has moved
away from the Lair decision that Community students cannot rely on Article 12(1)
EC in order to claim maintenance grants and recognised that students, under certain
conditions, can rely on Article 12(1) EC in order to claim social assistance benefits
in the State where they are studying. Secondly, and this is arguably more important
for students, the case law
of
the Court suggests that Community law may provide for
a right to export student grants. In a series
of
judgments concerning the free move-
ment
of
workers the Court has ruled that Member States must award children
of
workers a student grant for studies in other Member States whenever they give their
nationals that privilege. In the most recent case, Fahmi and Esmoris-Cerdeiro
Pinedo Amoris,7the Court was asked whether the children
of
Community workers
can claim grants for studying in other Member States when the host State does not
provide grants for its own nationals. Although the Court avoided answering the
question, the case law, at the very least, does not exclude the possibility that chil-
dren of Community workers, and possibly all Community citizens, may be able to
derive an independent right to export student grants from Community law.
This article puts Grzelczyk and Fahmi in theirlega1-historica1 context, analyses
the rulings and argnes that student mobility should not be promoted by extending
students' claims to financial aid in the State of education but rather by the recogni-
tion of a right to export student grants.
2. GRZELCZYK:
THE
RIGHT TO
FINANCIAL
AIDIN THE STATE OF EDUCATION
2.1 Case Law prior to the Grzelczyk decision
For a proper understanding
of
Grzelczyk it is necessary to go back to Brown and Lair
(referred to above). Both judgments concerned Community citizens who had moved
5 Case C-39/86 Lair [1988] ECR 3161 at 14-15.
6 Judgment
of
20 September 2001 in Case C-184/99 Grzelczyk, not yet reported. The text
of
the judgment is available on http://www.curia.eu.int/jurisp.
7 Judgment
of
27 March 2001 in Case C-33/99 Fahmi and Esmoris-Cerdeiro Pinedo
Amaris, not yet reported. For the text
ofthe
judgment see http://www.curia.eu.int/jurisp.
EUROPEAN JOURNAL OF SOCIAL SECURITY
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