Higher Education within the European Union is a problematic affair. The Bologna accords have tried to create a structure within which it is easy for students to study wherever they want. There have been many cases that emphasize the role of the exchange of students within the European project to further integration. Yet Member States have a dual view of these developments. On the one hand, they benefit from young talent that comes to their country and from the talent they send (and which hopefully returns) to gather knowledge. On the other, higher education is a costly affair and there is the constant fear of actually subsidizing students whose home-nation's education system is failing or to expensive. This has lead to complex systems of student support which often have a 'sufficient link' component. The Court of Justice has taken a strict approach to these systems. Although, as in social policy, Member States are allowed to require a sufficient link for students to be granted benefits, this policy can not be arbitrary or discriminatory.
This piece will argue that a recent case against the Netherlands illustrates that the Court's conception of citizenship, foregoing in part the concept of nationality, is either to idealistic for its own good, or needs to be more rigorously enforced to truly solve issues of social polity. Be forewarned that the following is not so much a legal analysis, as it is the opinion of the author on this issue.
The Martens case
The recently decided Martens case deals with the so-called three-out-of-six rule (3-6 rule) that establishes which persons are eligible for Meeneembare Studie Financiering (MNSF) in the Netherlands. MNSF is the system that allows students to pursue a study outside of the Netherlands, but with the benefits of the prestatiebeurs system (the basic scholarship at the time whereby part of the grant does not need to be reimbursed by the student if a ECTS limit is reached) that they would have enjoyed had they chosen a study within The Netherlands. The 3-6 rule states that this possibility will only be open for those prospective students that have spent at least three out of the six years preceding their studies in The Netherlands. It is a basic solidarity clause. Within the European Union, social benefits are to a certain extent allowed to be limited to persons who have demonstrated a certain connection to the benefactor state, yet as this case will demonstrate, it is a thin line to tread.
Miss Martens has Dutch nationality as she is born in the Netherlands to Dutch parents, who when she is six moved to Belgium. Consequently, she has resided there until she finished her primary and secondary education. Her father has worked in Belgium since moving there in 1993, and only briefly had part-time employment in the Netherlands from 2006 till 2008. After finishing her secondary education, she chose the Netherlands Antilles University in Curaçao as her place of tertiary education. In her application for MNSF, she stated that she had fulfilled the 3-6 rule after which she received her student grants. During her studies, the Belgian government supported her parents, yet as Belgium does not have a system of student grants in place, she herself did not receive financial support from the Belgian state.
In 2010 it is established by the DUO that miss Martens had in fact not fulfilled the condition that she has lawfully resided in the Netherlands for three out of the preceding six years. As a result she was notified via a (delegated) decision by the Minister for Education that she was obliged to pay back the €19481.64 she had received. Miss Martens contested this decision, stating that this would go against her rights as the dependant of a cross border worker under Regulation 1612/68 and Article 45 TFEU. In earlier cases the Court had rejected such schemes and even explicitly the Dutch 3-6 rule, in case C-542/09 as discriminatory with regards to cross border workers. The Centrale Raad van Beroep however makes a preliminary reference as the status of Miss Martens is not clear. Surely, miss Martens father is no longer to be considered a cross border worker for the sake of the definition of the awarding of MSNF. The referring tribunal is aware of the judgment in C-542/09, but considers this case to fall outside of that scope.
The fall-out
The Martens case is not only interesting for the, somewhat more political, point that the author intends to make in the following section. The A-G and the Court come to the same result, yes this case fall under the scope of C-542/09 and is not allowed, but via completely different routes. Whereas A-G Sharpston goes to great length to clarify that time since the father has made use of his worker's rights should not be an issue in these questions as the point is that rules such as the one under contention, limit the rights of each person to move, reside and find gainful employment within the European Union. A Dutch national would be deterred to seek cross-border employment if this results in the loss of rights for his dependants, such as student grants. The point of Union citizenship was, in the A-G's opinion of a secondary nature.
The Court however, bases its conclusion completely on the status of Union citizenship. The 3-6 rule will have a negative effect on the rights of EU citizens to make use of their rights under Article 21(1) of the TFEU. Union law does not force Member States to create a system of financial support for students, yet when they do choose to do so, these rules should not infringe upon the inherent rights of Union citizens to make use of the freedoms ensured by the Treaty and Directive 2004/38. The 3-6 rule tries to establish a sufficient link between the Netherlands and the recipient of the grant, which is allowed (see C-220/12 Thiele Meneses ) yet it is disproportional. The Court is of the opinion that it: “[...]is [...] too exclusive because it does not make it possible to take account of other factors which may connect such a student to the Member State providing the benefit, such as the nationality of the student, his schooling, family, employment, language skills or the existence of other social and economic factors.”
The post-nation citizen
It was clear from the outset that the Netherlands would lose this case. There has been extensive case law on the free movement of students and, in all fairness, even though the former minister of education Halbe Zijlstra has argued that the 3-6 rule was drafted with European Law in mind, it is of a completely arbitrary nature. Yet it is the Court's firm wording on what grounds are allowed to confirm a sufficient link with the Member State that triggers the criticism of the author. It is the fact that the Court gives such primacy to the fundamental nature of European Citizenship which is becoming untenable in cases such as the one currently discussed.
The development of Citizenship is to a large extent logical given the place it has been given since the Lisbon Treaty and the ongoing enmeshing of the Member States. If we accept the fact that, within certain logical limits, every EU citizen is allowed to freely make use of the shared space that the Treaties have created within the outer border of the Union, it is clear that there is a need for the elimination of those concrete hindrances such as the threat of loss of nationality (C-135/08 Rottmann) or the expulsion of a third country national spouse (C-202/13 McCarthy). The fact that the Court allows the protection of the basic tenets of the social-democratic state through the sufficient link doctrine is logical. However, the current case illustrates the problems the Union faces in this phase of transition.
My point is as follows, if Union Citizenship is the fundamental nature of all who are awarded this status, than why is miss Martens so beholden to the Dutch State. Yes, she has Dutch citizenship, yet her link with her motherland is tenuous at best. It is only the fact that there is a system of student support that has created a new relationship between her and the Netherlands. If Union Citizenship is our fundamental status, the focal point of our rights to live and reside where we want, and if we accept that social support schemes need a sufficient link to the benefactor state to be granted, than why is there still such a focus on the original nationality? The reasoning of the Court is both impractical in its idealism, yet at the same time does not carry the point far enough. Miss Martens is for all intents and purposes linked to the Belgian state. Had she chosen to reside somewhere else, that choice to reside should have been sufficient to be awarded the benefits that come with the place of residence. In an era of true post-nation citizenship, what does the label of being 'Dutch' or 'Belgian' mean except as an indicator of heritage, not of rights. Had the Court truly chosen for EU citizenship, it would have tried to minimise the role that nationality plays in this discussion. Why should mere heritage play a role in the awarding of benefits, where factual link and the choice one makes to work and reside is of so much more importance. EU Member State citizenship is what gives us EU citizens our status, but in a shared legal space in which we are all free to work and reside where ever we want, this should be the only point of importance. Who pays for social benefits or education or any other social scheme should be the State with which you have a conscious connection, the State that benefits from that connection, not the one which you only think of when you hand over a passport while boarding.