Union Citizenship and the Legality of Durational Residence Requirements for Entitlement to Student Financial Aid
| Date | 01 December 2009 |
| Published date | 01 December 2009 |
| DOI | 10.1177/1023263X0901600405 |
| Subject Matter | Article |
16 MJ 4 (2009) 477
UNION CITIZENSHIP AND THE LEGALITY OF
DURATIONAL RESIDENCE REQUIREMENTS FOR
ENTITLEMENT TO STUDENT FINANCIAL AID
A.P. M*
ABSTRACT
e recent ruling in Förster demonstrates that Union citizenship is not a magic judicial tool
for ex panding citizens’ rights. e Court upheld a national rule that makes entitlement
to maintenance grants for economically inac tive nationals of other Member States
conditional upon ve years of prior residence on the nationa l territory. e Court did not
support its conclusion by pe rsuasive reasons . e r uling suggests that th e Court merely
accepted the ve-year residence requirement simply and only because the EU legislator
had authorized it. While there is in pr inciple nothing wrong with respecting legislative
choices, this contribution argues that the Court showed far too much deference to the EU
legislator. Förster constitutes an unneces sary step back on the road to a meaningful Union
citize nship.
Keywords: Union citizensh ip; free movement of students; durationa l residence
requirements; nationalit y discrimination
§1. INTRODUCTION
In November 2008, the European Court of Justice concluded in Förster 1 that Community
law does not object to a national rule t hat makes entitlement to maintena nce grants for
students and ot her economically inacti ve nationals of other Member St ates conditional
upon ve yea rs of prior residence on the national territory. e Cou rt regarded such a
* Lecturer, Depa rtment of Internationa l & European law, Maastr icht University.
1 C-158/07 Förster [2008] ECR I-0000. For a rst comment on the judgment see A. Schrauwen,
‘Verblijfsduur als Weerspiegel ing van ‘Een Zekere Mate van Integratie’: Transparantie versus
Proportiona liteit’, 3 Nederlands Tijd schri voor Europees Rec ht (2009), 77–83.
A.P. van der Mei
478 16 MJ 4 (2009)
requirement as a n appropriate means for ensuri ng that maintenance a id is reserved for
students who are suciently integ rated into the host State’s society.
At rst gla nce, this conclusion does not seem to be particularly controversia l. A few
years earlier, in Bidar,2 the Court had a lready indicated that it does not oppose a three -
year residence requirement for maintenance aid. at the Court in Förster permitted
application of a ve-year residence requirement may hardly come as a surprise. As the
Court pointed out, Ar ticle 24(2) of Directive 20 04/383 stipulates that Member States are
under no obligation to oer maintena nce aid to economically inactive Union citizens
who have not yet lived in their territor y for ve years and thus have not yet acquired
the right of permanent residence.4 Fur thermore, durational residence requirements for
student na ncial aid are primarily targeted aga inst Union citi zens who move to other
Member States for t he purpose of studyi ng there. Virtual ly anyone will ag ree that such
Union students5 should have no r ight to full st udy grants in t he host State. Aer all,
if Member States, and e specially those with comparatively better developed student
nancial a id systems, were obliged not only to admit such students to their colleges and
universities, but to award them fu ll study grants too, they might attract many students
from States where no, or les s developed, student grant systems exist. e abi lity of the
comparatively generous Member States to maintain student na ncial aid systems could
be aected, if not jeopa rdized.6
Upon a closer reading and analysis of Förster, however, questions arise. e durational
residence requirement in question does not only deprive Union students of maintenance
aid. It a lso denies aid to economically inactive Union citizens who have relocated their
principal home to another Member State, who as a rule w ill be f ully taxable there and
may de facto have integrated into that State’s society.7 In Förster t he Court rather loosely
stated t hat requiring ve years of prior residence to ensure that aid is granted only to
those who h ave shown a sucient degree of integration in t he host State cannot be
regarded as ‘excessive’. However, the ruli ng implies that economica lly inactive Union
citizens who are not Union students can en groupe be excluded f rom mai ntenance
grant schemes. W hat justies such a rather bold categorica l exclusion? How can this
be reconciled wit h previous case law in which the Court had ordered national courts to
2 Case C-209/03 Bidar [2005] ECR I-2119.
3 EC Directive 200 4/38/EC, [2004] OJ L 158/77.
4 See Articles 16 et seq., Di rective 2004/38/ EC, [2004] OJ L 158/77.
5 For the purposes of this c ontribution, Union students are de ned as Union citizens who prev iously fell
under Counc il Directive 93/96/EEC, [1993] OJ L 317 and are now covered by Art icle 7(1)(c), Directive
2004/38/EC , [2004] OJ L 158/77.
6 See further A.P. van der Mei, Free Movement of Persons within the European Community – Cross-Borde r
Access to Public B enets, (Hart Publ ishing, 2003), Chapter 5.
7 For the purpose s of this contribution, the category of ‘othe r’ economic ally inactive Union cit izens
involves Union cit izens who are not Union students (see not e 5 above), used to be covered by Council
Directive 90/36 4/EEC, [1990] OJ L 180 or Council Direct ive 90/365/EEC, [1990] OJ L 180, and now fall
under Artic le 7(1)(b) Directive 200 4/38/EC, [2004] OJ L 158/77.
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