Luxembourg, Cour administrative , Arrêts n°s 35820C, 35848C et 35851C, 22.07.2015
State financial aid for higher education – beneficiary – child of a non-resident worker (frontier worker) – concept of child – non-discrimination – EU Regulation 492/2011, Art.7, para. 2; TFEU art. 45, para. 2. – Charter of Fundamental Rights of the European Union art 33, para. 1.
By a law of 26 July 2010, the law of 22 June 2000 on state aid for higher education had been changed in substance in that now only resident students and not their parents, as in the earlier system, became holders of a right to state financial aid for higher education under the special conditions provided for therein.
On the preliminary question asked by the administrative court of the Grand Duchy of Luxembourg, the Court of Justice of the European Union (CJEU), in a judgment of 20 June 2013 (case C-20/12), in view of non-discrimination, under the provisions of Article 7, paragraph 2 of Regulation (EEC) 1612/68, provision taken by Article 7, paragraph 2 of the EU regulations 492/2011, with a view to the integration of the student, child of a frontier worker, in relation to the society and the labour market of Luxembourg, the State of employment of the frontier worker, found a non-compliance with the law of 26 June 2010 relative to Article 7 paragraph 2 of Regulation (EEC) 1612/68 in relation to the child of a frontier worker providing his services in Luxembourg, to the extent that a sufficient connection is verified for this worker in relation to Luxembourg, the country where his parent had a job as a non-resident. By a law of 19 July 2013, an Article 2bis was introduced in the law of 22 June 2000 providing for the possibility of access to financial aid for higher education for a child of a frontier worker under the conditions laid down therein consisting in particular of a continuous period of employment of five years verified at the time of application for assistance.
Three students with rejected applications have appealed to the Administrative Court against the decisions of refusal of financial aid for higher education based each time on the basis that in relation to the reference frontier worker, the students in question were not bound by a legal parent-child relationship, in that it was every time their mother’s spouse who is not their father.
By respective judgments of 5 January 2015 (nos. 33791, 33950 and 34436 of the role), the court declared the appeals unfounded. In reaching this solution, it upheld the state view and analysed in substance the notion of children as referring to the existence of a legal parentchild relationship between the student and the reference frontier worker. The three students appealed to the Administrative Court against the three respective judgments of 5 January 2015.
By judgments of 22 July 2015, the Court was required to submit, before any further progress in question, a preliminary question to the Court of Justice of the European Union pertaining, on the background of the principles of non-discrimination, freedom of movement of workers and adequate connection of the non-resident student in relation to the State of employment of the reference frontier worker, in substance, to the question of the concept of child of a frontier worker authorised to seek as such financial aid from the State of employment of the reference frontier worker. The Court put forth in particular the question of whether the concept of child of a frontier worker was to be understood as equivalent to his “direct and first-generation descendant whose parentage is legally established in relation to his parent,” by emphasizing the parentchild relationship established between the student and the frontier worker, supposed to underpin the connecting link placed as a condition for obtaining the aid and by following the view of the State party adopted by the first panel of judges or, otherwise, by emphasising the fact that the frontier worker “continues to provide for student maintenance” without a legal parent-child relationship necessarily uniting him to the student, particularly by drawing a sufficient link of cohabitation, such as to combine it with one of the parents of the student in relation to whom a parent-child relationship is legally established and following the view expressed in appeal by the three students. In this second perspective, the Court asked the additional question, whether the contribution, by non-binding hypothesis, of the frontier worker, in case it is not exclusive, but parallel to that of the parent(s) associated by a legal parent-child relationship with the student and therefore bound in principle by a legal obligation to care for him, must meet certain consistency criteria.
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