Essay: Case C-158/07, Jacqueline Förster v. IB-GROEP

From September 2000 German national Ms Förster was granted a maintenance grant from the IB-Group (‘the administrative body enforcing Dutch legislation relating to financing of studies’) because she was regarded as a ‘worker’ within the meaning of article 45 TFEU and, consequently, should be treated the same as Dutch students regarding maintenance grants (art. 7(2) Regulation 1621/68).

Between July and December 2003 she wasn’t a paid employee and thus not considered a worker, therefore her grant was annulled and she was asked to refund the received amount.

The Alkmaar District Court decided primarily that Förster wasn’t a worker during the second half of 2003 and secondly because she had not been integrated in Dutch Society she also wasn’t entitled to the maintenance grant. Förster appealed at the Higher Social Security Court (HSSC) claiming primarily that she was sufficiently integrated and alternatively that she should be regarded as a worker.

Relevant legal questions

The HSSC referred questions to the European Court of Justice for a preliminary ruling. They questioned:

  • Whether and under which circumstances a student, being a national of one Member State and traveling to another Member State to study, can rely on article 18 TFEU (the prohibition of discrimination based on nationality) to obtain a maintenance grant?
    Whether the application of a prior residence of five years to nationals of other Member States can be regarded as compatible with article 18 TFEU and, if so, if it’s necessary to take into account other criteria regarding a certain degree of integration into the society of the Member State?

Answer of the European Court of Justice (ECJ)

Article 18 TFEU as a basis for obtaining a maintenance grant

The ECJ decided in 2005 regarding social benefits that a not-economically active EU citizen could rely on article 18 TFEU when this person has been a lawful resident in the host Member State for a certain time. Therefor a student, being a lawful resident in another Member State, falls within the scope of application of article 18 TFEU for the purpose of obtaining a maintenance grant. This means that awarding of the maintenance grants should be done in observance of the rules that apply to EU citizens, e.g. the fundamental principle of equal treatment as stated in the first part of article 18 TFEU. The host Member State should thus give the same maintenance grants to nationals of other Member States as given to its own nationals.

Certain degree of integration

The ECJ recognised in a previous case that the host State could require a certain degree of integration as a requirement for a maintenance grant. The Dutch legislator establish rules stating that a student, with the nationality of an EU Member State, can qualify for a maintenance grant if, prior to the application, he/she has been lawfully resident in the Netherlands for an uninterrupted period of at least five years. The ECJ decided that this ‘five years requirement’ is justified and proportionate for the purpose of guaranteeing that the applicant for the maintenance grant is integrated into the society of the Netherlands.
Analysis of case law, implications and application

Because Ms Förster wasn’t seen as a worker, het maintenance grant was annulled. In the Förster case the ECJ decided that the requirement of five years of uninterrupted residence was appropriate to determine that the applicant had integrated enough in the host Member State en thus could be entitled a maintenance grant. The Förster case often refers to the Bidar case.

C-209/03 Bidar

Before the Bidar-case the ECJ stated in the C-39/86 Lair-case that to some extend grants to cover fees and registration fall within the scope of article 18 TFEU, but the ECJ excluded maintenance and training grants from the scope of the article. In the Bidar-case the ECJ changed this statement. As a result of the development of EU law, citizenship of the EU was introduced into the TFEU and a chapter devoted to education and vocational training was added. The ECJ stated that with regard of the Trojani-case ‘a citizen of the Union who is not economically active may rely on the first paragraph of article 18 TFEU where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit’.

Concluding, the ECJ stated in the Bidar-case that because of the developments since judgments like Lair that, for the purposes of prohibition of discrimination, article 18 TFEU is applicable for students obtaining assistance, whether in the form of a subsidised loan or a grant, intended to cover his maintenance costs, where those students are lawfully resident in another member state.

Back to the Förster-case

In the present case the ECJ concludes, with the Bidar-case in mind, ‘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 an unreasonable burden’. Thus, it would be legitimate for a Member State to demand that a student who is lawfully resident in another Member State should demonstrate a certain degree of integration into society of that State by residing in the host Member State for a certain period of time, in this case five years. This criterion is regarded proportionate according to the Collins-Case.

The judgement in the Förster-case relieves the Member States of assessing case to case if a non-national student who is a EU citizen is ‘sufficiently integrated’. This five years requirement is much easier to maintain for a host Member State and will prevent non-national students of becoming a burden for the Host Member state.

The more recent case

In the 2009 C-123/08 Wolzenburg-case , five years uninterrupted residence for non-Dutch EU citizens was required for a Dutch residence permit for an indefinite period, while this requirement was not set for Dutch nationals, and thus questioned to be in accordance with article 18 TFEU. The ECJ stated that this five years requirement is proportioned to obtain the objectives set out in the applicable Dutch law. The ECJ thus stated that the Dutch legislation is not contrary to article 18 TFEU.

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