Court condemns Dutch rule on funding for studies abroad
By Sophie Petitjean | Thursday 14 June 2012
A Dutch legislative measure which places a condition of residency on funding for studies abroad does not comply with EU law, the Court of Justice found, on 14 June. The European Commission brought the action against the Netherlands (Case C-542/09) saying that the ‘three out of six years rule’ constitutes indirect discrimination against migrant workers and members of their families. The court found that the Dutch rule does not comply with the Treaty on the Functioning of the EU (TFEU) and EU legislation on freedom of movement for workers. It also rejected the Dutch government’s argument that this measure constitutes an overriding reason relating to the public interest.
Under Dutch law, students who wish to receive funding to study at a higher education institution abroad must have legally resided in the Netherlands for at least three years in a row before starting their studies. This ‘three out of six years’ condition applies irrespective of the nationality of the student.
However, the court said that the TFEU and Regulation 1612/68 on the free circulation of workers within the EU (as modified by Regulation 2434/92) abolish any discrimination based on nationality towards workers in EU member states as regards employment, remuneration and other conditions of employment. The principle of equality of treatment prohibits measures that require a specified period of residence unless it is objectively justified. In that regard, the court rejected the Netherlands’ argument that the residence requirement is necessary in order to avoid an unreasonable financial burden.
Furthermore, the court said that the argument of promoting the mobility of students is too exclusive; by imposing specific residence periods in the territory of the member state concerned, the ‘three out of six years’ condition grants the most importance to an element which is not necessarily the sole element representative of the actual degree of attachment between the concerned party and that member state. Therefore, the court concluded that the Netherlands has failed to establish that the residence requirement does not go beyond what is necessary to attain the objective sought by that legislation. Consequently, it found that the residency condition is contrary to EU law, as it will create inequality in the treatement of workers from the Netherlands and migrant workers residing in the Netherlands, or employed there as frontier workers.
The Netherlands should now comply with the judgement without delay. In the case of non-respect of requirements, the court can bring further action seeking financial penalties.