Students & the EU - what rights do we have?

source: Debating Europe

by Jeanne Gallien, 7 minutes

 Since 1992, the Maastricht Treaty has established the free movement of goods, services, capital, and persons. Travelling to the territory of another Member State is a great opportunity for young people to develop themselves, boost their future professional opportunities, learn from others, make contacts, and complement their culture. In an ever-changing world, the need to adapt and be mobile is even more relevant for today's youth. However, as a French student studying in the Netherlands, I realized that many students, including myself, were not aware of their rights under EU law. We are all aware of our national citizenship, but few know much about their European citizenship, which was introduced in 1992 and is now codified in Art. 20 (1) TFEU that reads:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

This article aims to inform young people about their rights given by European citizenship in higher education, which may encourage them to consider a period of study abroad. For this reason, it will solely focus on EU nationals and not on third-country nationals. 

To provide guidance and make these complex terms more understandable, an example of a German student named Alix, wishing to start her bachelor's degree in European Studies in Maastricht, starting in September 2022 will be used.

 Right to free movement

Article 18 TFEU states that “any discrimination on grounds of nationality shall be prohibited.” It means that everyone should be treated the same, irrespective of their nationality and that any direct or indirect discrimination, is forbidden. Direct discrimination occurs when people are discriminated against because of their nationality, that is, when a national and a foreign student are treated differently in law and fact. Indirect discrimination occurs when, nationals and foreign students are treated equally in law but in fact, the foreign person must deal with an extra burden. In the case law Commission v Austria C-147/03, students had to provide evidence of a diploma and show that they would have satisfied entrance to their home-country university. The court ruled that this requirement is likely to affect nationals of other Member States more than nationals of the Member State concerned so that the difference in treatment established by that national rule entails indirect discrimination contrary to the principle of non-discrimination on grounds of nationality contained in Article 18 TFEU. 

However, this type of discrimination can sometimes be justified by justification laid down in cases Bressol C-73/08 and Commission v Austria C-147/03, as long as the measure is proportionate. It must be suitable to achieve the aim, meaning that there is no less restrictive measure able to do it.

In the case where Alix would like to study in another Member State in the EU (the Netherlands), she should not face obstacles that run counter to the principle of equal treatment. She must not be refused access to university purely based on her nationality; she must be subject to the same acceptance criteria to which all nationals are entitled.

Source: Debating Europe

Residence rights of students

Let us assume that Alix has been accepted into her university in the Netherlands and, she is looking for housing. She is wondering whether she has the right to reside in the Netherlands, or if she should apply for a visa.

Articles 20 and, more specifically, 21 TFEU highlight that any citizen of the Union shall enjoy the right of free movement. Article 21(1) TFEU reads:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States”.

This provision is further elaborated in Directive 2004/38/EC which expands the treaty provisions and lays down specific conditions and limitations. To take advantage of the benefits of the Directive, Alix must satisfy its personal and material scope. The personal scope corresponds to the beneficiaries of the Directive. Article 3(1) states that “This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.” Alix is an EU citizen moving from Germany to the Netherlands, thus the personal scope is fulfilled. Moving on, the material scope is what the Directive covers substantively. It provides for the conditions of lawful residence. The Directive does not cover wholly internal situations but only when there is a cross-border element. This is also fulfilled, as Alix wishes to cross the German-Dutch border in to study in the Netherlands, a country which is not the Member State of her nationality. Therefore, as an EU citizen wishing to study in another Member State, she can rely on this Directive.

If a student wants to stay in another Member State for three months, article 6(1) states that a Union citizen shall enjoy the right of residence on the territory of another Member State for the period of three months without conditions other than a valid identity document.

If a student wants to stay in another Member State between three months and 5 years, which is the most common situation for the students, they can rely on article 7(1)(c) of the directive. They need to fulfil certain conditions:

• Be enrolled in a private or public establishment, accredited, or financed by the host Member State;

• Have comprehensive sickness insurance cover in the host Member State and must inform the relevant national authorities in line with the national rule, and

• Have enough resources not to become a burden on the social assistance system of the host Member State.

If a student wants to stay in another Member state for more than 5 years, article 16 applies. A student who has registered legally for a continuous period of 5 years in the host Member State can acquire the right to live there permanently and be treated the same way as a national.

Source: Maastricht University

Eligibility for benefits

Assuming that Alix is enrolled at a university and knows that she can legally reside in the Netherlands, she is wondering if she is eligible for any study benefits.

The financial benefit from the home Member State 

Many Member States provide loans or grants to help their own students with their living costs when studying. Under the current law, the choice to grant such aid lies with the Member States. If they decide to do so, they must not restrict or discourage a student from exercising their right to free movement within the European Union (Thiele Menes C-220/12).

The financial aid from the host Member State 

The issue of financial aid from the host Member State (the State to which a student moves) is explained in Directive 2004/38/EC. This Directive explicitly excludes maintenance grants and loans from the principle of equal treatment. Article 24 states that host Member States are not obliged to extend social assistance, to grant maintenance aid for studies, including vocational training constituting student grants or student loans to students prior to the acquisition of the right of permanent residence, equivalent to 5 years residence.

Conclusion 

Summing up the above considerations and applying them to the case of Alix, she is now aware of her rights under EU law. She knows that she has as much chance as nationals to be accepted in a school in another EU country. She can also reside lawfully in that Member State where she is studying. However, most likely she will not receive financial aid from the host country, the Netherlands. She will have to ask her home Member State Germany if she is eligible for benefits.

This article was inspired by the EU Law II course given in the second year of the European Studies bachelor programme at Maastricht University, coordinated by Dr Andrea Broderick.