Komentarz (w j. angielskim) autorstwa Evy-Marii Thierjung do pytania prejudycjalnego zadanego TSUE przez niemiecki Federalny Trybunał Konstytucyjny w sprawie możliwości korzystania ze stypendium edukacyjnego („Ausbildungsförderung”) i regulacji jakie wprowadziły przepisy krajowe ograniczające tę korzyść do jednego roku dla obywateli, którzy odbywają swoje studia za granicą i w chwili rozpoczęcia studiów krócej niż trzy lata mieszkają na terytorium kraju. 

Reference for a preliminary ruling from the Verwaltungsgericht Karlsruhe  (Germany) lodged on 24. November 2011 1)


Language of the case:             German
Referring court:                 Verwaltungsgericht Karlsruhe
Parties in the main proceedings:     Claimant: Philipp Seeberger
Defendant: Studentenwerk Heidelberg



1. State of facts:
The claimant, a student of the Ruprechts-Karl University Heidelberg (Germany), applied to Studentenwerk Heidelberg, the local organisation providing social, financial and cultural services to students which is, according to §40 (2) BAföG 2), also in charge for the allowance of educational or training grant (Bundesausbildungsförderung), for this study finance.
The defendant rejected his application and drew the issued negative answer upon the provision of  §16 (3) BAföG in conjunction with §5 (2) point 3 BAföG 3).
§16 (3), read together with §5 (2) point 3 BAföG, provides that a student, who has his permanent residence in Germany and would like to receive an educational grant under this law for studying abroad in another Member State or in Switzerland can be a beneficent of this students’ allowance for longer than one year only under the condition that before leaving the country for education, he had have his permanent residency in Germany for at least three years. The applicant does not fulfil this condition.

The claimant challenged the decision of Studentenwerk Heidelberg before the Verwaltungsgericht Karlsruhe claiming that a provision which bars a student from his eligibility to receive an educational grant, because he has exercised his right to freedom of movement is not in compliance with European Union law..
With regard to this Verwaltungsgericht Karlsruhe referred to the ECJ with the following preliminary question:
    “Does European Union law preclude national legislation which denies an
 education or training grant for studies in another Member State solely on the
 grounds that the student, who has exercised the right to freedom of movement,
 has not,  at the commencement of the studies, had his permanent residence in his
 Member State of origin for the latest three years?” 4)

In order to find out which answer to this question will be likely given by the ECJ a deeper analysis is necessary.


2. The hitherto existing case law
The case law established by the ECJ relating to actions of EU citizens, who pursue educational courses in states other than those of their nationality, can be divided into three groups as far as the subject matter is regarded.

The fist group comprises cases dealing with national provisions referring to the access to vocational training and, connected with this, issues of the right of residence. 5)
In this field, the ECJ very early, in Gravier in 1985, ruled that since access to vocational training is likely to promote free movement of persons, the conditions of access to vocational training fell within the scope of the Treaty and therefore have to be in compliance with the requirement of non-discrimination on grounds of nationality with respect to Art.12 EC. 6) This decision of the ECJ requiring from the Member States to treat all students of the EU on an equal footing in conditions of access to vocational training, had enormous financial consequences for the Member States.

Therefore, the Court decided to limit them, firstly, by interpreting that only grants intended to cover charges relating specifically to access to vocational training are covered by the prohibition of discrimination 7) and later on by allowing to subject the right of residence for the duration of the studies to the possession of sufficient resources and comprehensive sickness insurance 8,9).   The reasoning of ECJ was to prevent that the students become a burden on the state social assistance.

Then, with the case Grzelczyk 10), a turning point can be made out.
This case one of the first in the second group, which can be distinguish among the case law concerning rights of students under EU law. Cases, which fall within this partition deal with actions of students, who are EU citizens and claim certain social advantages from their host states.

In Grzelczyk the ECJ held that due to the introduction of the EU citizenship to the Treaty and adding a new chapter devoted to education and vocational training, maintenance grants for students fall now within the scope of application of the Treaty 11) and, what follows, within the scope of the prohibition of discrimination on grounds of nationality. Having this in mind, the judgment in this case prohibited national provisions precluding access to social security for EU nationals pursuing studies in another Member States solely on the ground of nationality as contrary to Art.18 and Art.21 (1) TfEU.

In relation to the Students’ Residence Directive 12), which had excluded any right to payment of maintenance grants and imposed relevant conditions of sufficient resources and sickness insurance, the ECJ states that there can no preclusion for access of students to social security benefits be found 13). Guided by the preamble of the Directive, the Court, contrary to its previous case law, claims that the Member States may be expected to carry a reasonable burden and they have “to accept a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary”.

The outcome of the case, which followed, Bidar 14), was factually the same. In this case, ECJ had to cope with the new Directive 2004/38 on the Rights of Free Movement and Residence for EU Citizen and their Families, which exactly as its precursors 15), contains a provision excluding any right to payment of maintenance grants and imposed relevant conditions of sufficient resources and sickness insurance. Here, ECJ expounds that in situations, where Member States had made use of the possibility to restrict eligibility for students’ allowance for EU nationals from other Member States laid down in Art.24 (2) of this Directive, students may rely on Art.21 TfEU together with Art.18 TfEU to claim a right of equal access to maintenance grants with national students.

The Court subjected this right solely to one condition – the beneficent has to demonstrate a certain degree of integration into the society of that state.
With this ruling, ECJ effectively side-lined the restrictive provisions of the Directive 16).
In the case Morgan and Bucher 17) ECJ decided that the necessary degree of integration should be satisfied, when the applicant had been raised and completed school in the country, where he now applies for allowance for students.

In fact, this case actually created a third group of cases concerning actions of students, who are EU citizens and challenge decisions of state authorities claiming national discrimination, because in this legal dispute the defendant was not the host state, but the Member state of origin of the applicants.

In this case the two German students successfully argued against the German law of educational or training grant (Bundesausbildungsförderung), in particular against § 5 (1) and (2) BAföG, which had limited the availability of study finance abroad in another Member State to students who had already completed one year in the same field of study in Germany. The ECJ declared this provisions as not in compliance with the rights of these students stipulated in Art.20 and 21 TfEU.

After this decision the whole law of educational or training grant (Bundesausbildungsförderung) was worked over and then amended, the new version being in force since December 2010. The latest changes were made in December 2011.

Summing up, it may be pointed out that the introduction of EU citizenship had an enormous impact on the rights of students under EU law, while making the Community law not only applicable to issues of equal access to vocational training and the right of residence, but also to allowance for students.

Consequently, the Court obliged the Member States to legislate in this area with regard to the requirement of non-discrimination on grounds of nationality and moreover, granting an autonomous right derived from Art.18 and Art.21 TfEU of equal access to maintenance grants.

By doing so, the ECJ in large parts laid aside any restrictions from the Directive 2004/38 and the Treaty limiting this right.
The only condition to be met by the student is a sufficient integration in the society of the Member State from which he or she demands allowance.


3. Interpretation of the case and assumptions concerning ECJ’s answer
The given case constitutes a part of the long chain of rulings and it has to be viewed and evaluated in their light.

While the applicant is claiming for the same education or training grant as the two German students in Morgan and Bucher from the Member State of his origin, this lawsuit has to be allocated in the third group of cases, where the defendant is not the host state, but the state of origin.

Therefore, the crucial factor for reference is going to be exactly this case.
At first, it has to be stated that a national provision as the one at stake, which subjects the education or training grant for students abroad for the period longer than one year to the condition that they had before leaving their permanent residence at least for the last three years in Germany, has an impact on the decision whether to execute the right of free movement granted by the Treaty or not.

Exactly in the same way as the provision in Morgan and Bucher one can claim that it is “liable, on account of the personal inconvenience, additional cost and possible delays which it entails, to discourage citizens of the Union from leaving the Federal Republic of Germany in order to pursue studies in another Member State and thus from availing themselves of their freedom to move and reside in that Member State” 18) as conferred by Art.21 (1) TfEU. That is a way such as “a restriction can be justified in the light of Community law only if it is based on objective considerations of public interest independent of the nationality of the person concerned and if it is proportionate to the legitimate objective pursued by the national law”19) . In respect to the case law, in fact the only justifiable ground would be the attempt of the German Government by this provision to guarantee a sufficient “link between the students concerned and its society in general as well as its education system” 20) in order to ensure that the beneficents do not become an unreasonable burden which could lead to a general reduction in study allowances granted in the Member State of origin.

But in the ongoing case the same argument can be brought forward as in Morgan and Bucher: the degree of integration must be regarded as satisfied by the fact that the applicant was raised in Germany.

Also to argument that due to the absence of coordinating provisions between Member States so far as concerns education or training grants provision like this are necessary to diminish the risk of duplication of entitlements can be rejected. This provision in no way intended to prevent grants of the same nature by the host state. Additionally  §21 (3) BAföG contains a provision, which aims to take into account, in the calculation of the relevant income for the purposes of applying that law, any education form of allowance for students. Therefore, this provision cannot be regarded as appropriate or necessary to ensure that those grants are not duplicated.

Any other reasonable grounds on which this provision cannot, also with regard to Morgan and Bucher, be found.
Thus, following the reasoning in the previous cases, this provision has to be declared as being in breach of Community Law.

Altogether, assuming that the ECJ will still not pay much attention to the restrictions anchored in the Treaty in Art.21 (1) TfEU and in the Directive 2004/38 and following the reasoning outlined in Morgan and Bucher, while not qualifying this provision as necessary to ensure a sufficient degree of integration in the society of the state who is the addressor of the request for allowance, one may reckon that the ECJ will claim this provision as prohibited by European Law.

Also this new version of the Federal Law on the encouragement of education and training is going to be regarded as limitating the genuine right of free movement granted by the EU citizenship.

The answer given by the Court to the preliminary ruling hence will be that national legislation which denies an education or training grant for students in another Member State solely on the ground that the student, who has exercised the right to freedom of movement, has to, at the commencement of the studies, had his permanent residence in his Member State of origin for at least three years is precluded by the European Union law.