Case Comment: Giersch and Others (C-20/12)

Michèle Finck, University of Oxford

In February, Eutopialaw featured an analysis of Advocate General Mengozzi’s opinion in the Elodie Giersch case. Giersch concerns the question of whether a Luxembourg law that makes funding for higher education conditional upon residence in the Grand Duchy constitutes discrimination on the basis of nationality.

The effect of the national law was to exclude from its benefit the children of frontier workers from Belgium, Germany and France that currently make up around 44% of Luxembourg’s workforce. The Advocate General recognized that the measure indirectly discriminates between domestic and foreign workers. Still, he argued that such discrimination could be justified as it was aimed at increasing the number of Luxembourgers with a higher education degree in order to transform the Luxembourg economy into a knowledge-based economy.  This approach not only contrasted with earlier case law, such as Gravier or Commission v Austria but further raised the fundamental question of how concerns for a national economy (Luxembourg’s future economy) can justify derogations from the European Union’s internal market imperatives.  In my analysis of Advocate General Mengozzi’s opinion, I have argued that the concern for a single economy of a Member State can be placed into the current tendency to allocate increased respect to national peculiarities even if this entails the fragmentation of EU law.

Last week, the CJEU took a different approach to the issue. In its judgment issued on 20 June, the Luxembourg measure was declared incompatible with EU law. While the CJEU recognized that the Luxembourg legislation pursues a legitimate objective, namely the increase of Luxembourg residents with higher education degrees, it held that the current system extends beyond what is necessary to attain that objective. The Court qualified the financial aid measure as a social advantage that must be granted to migrant workers under the same condition as those applying to national workers. Equal treatment must be extended to those migrant workers whose residence remains in a different Member States, such as Luxembourg’s frontier workers. According to the CJEU’s judgment, the residence condition constitutes indirect discrimination on grounds of nationality as it operates mainly to the detriment of nationals of other Member States while benefitting Luxembourgers.

Case Comment: AG’s Opinion in Giersch & Others (C-20/12)

Michèle Finck, University of Oxford

The reference for a preliminary ruling brought by the Administrative Court of Luxembourg in the Elodie Giersch matter essentially concerns the question of whether a recent Luxembourg law that makes funding of higher education studies conditional upon residence in Luxembourg is compatible with European Union law, more specifically the requirement of non-discrimination on the basis of nationality. The aid can be received for studies undertaken within Luxembourg but also anywhere else.

The law is particularly controversial as it excludes from its benefit the children of frontier workers who travel every day from Belgium, Germany and France to the Grand Duchy to work. Currently, around 44% of those employed in Luxembourg are frontier workers. Over 600 applicants had brought proceedings before the national court after they had been refused financial aid. They argued that the fact that they were treated differently from the children of workers residing in Luxembourg constitutes an infringement of the principle of free movement of persons.