It is a small but painful hit that Luxembourg has just taken with the publication of a notice from the European Court of Justice.
The European Court had to decide whether the complaint lodged by a French student, the son of a frontier worker, was valid or not.
In September 2014, Nicolas, a French student, applied for student finance in Luxembourg, in order to fund a semester in Strasbourg. His application was motivated by the fact that his father was a frontier worker at the time and had been paying contributions in Luxembourg for 17 years between 1991 to 2014.
The only problem: an interruption of the contribution payments between 2008 and 2012. This was enough for the Ministry of Higher Education and Research to decline Nicolas’ application in November 2014, on the basis that Nicolas’ father had not paid any contributions for five years, in the seven years preceding his application.
The European Court of Justice had to decide whether that 5-year rule of contribution payments, the goal of which is to increase the number of residents with a degree in higher education, did not go too far in order to achieve the Luxembourg objective.
According to the Court’s notice, published on Wednesday 10th July, this aim to increase the rate of graduates among residents is ''susceptible to increasingly disadvantaging residents from other EU countries’’, as non-residents are generally not Luxembourgers. Thus, the distinction in the aim is an ''indirect discrimination based on nationality’’.
However, the Court states that an indirect discrimination needs to be ''objectively justified’’ in order to achieve what parties wish for and must not go ''further than necessary’’. It estimates that Luxembourg’s desire to increase its number of resident graduates can justify such a divergence but that the used means (the 5-year rule for contribution payments for the previous 7 years for non-resident applicants) go too far.
In the case of Nicolas and his father, who has paid contributions for 17 years, this rule prevents the ''complete appreciation of the links of this frontier worker with the Luxembourg job market’’.
Thus, to demand from a foreign student that his parents must have worked 5 of the 7 years preceding his application for student finance ''consists of a restriction which goes beyond what is necessary in order to achieve a legitimate objective’’. A notice which the Luxembourg Court necessarily has to respect when pronouncing its judgement, concerning the application of the French student.
