The European Court of Justice (ECJ) has ruled that the residence conditions for access to financial aid from the Luxembourg Government for higher education are discriminatory.

In response to an appeal made by Nicolas Aubriet, the son of a French cross-border worker employed in Luxembourg, the ECJ has ruled that the methods for calculating the minimum duration of activity in the Grand Duchy required for the awarding of financial aid to non-resident students go against EU law.

The current requirements set by the Luxembourgish Ministry of Education include the calculation of a minimum term of five years over a reference period of seven years. However, the ECJ has concluded that such calculations do not offer a complete assessment of the existence of a possible connection with the labour market.

In the case of Nicolas Aubriet, the student currently resides with his father, Bruno Aubriet, in a French town close to the French-Luxembourg border. Bruno Aubriet, a cross-border worker, was employed in Luxembourg from October 1991 until September 2014, with an interruption between January 2008 and December 2012. Nicolas Aubriet requested, as a non-resident student, financial aid from the Luxembourg State for his studies in Strasbourg for the winter 2014/2015 academic semester. At the time of the application, his father had been a taxpayer in Luxembourg and had contributed to the State social security scheme for more than 17 years.

Nevertheless, in November 2014, the Luxembourg Minister of Higher Education and Research refused to grant this request for financial assistance on the basis of the non-observance of the minimum working hours requirement during the reference period provided for in the Luxembourg law on State financial assistance for higher education. Indeed, when the application for financial assistance for higher education was submitted on 29 September 2014, Bruno Aubriet had not worked in Luxembourg for five years during a reference period of seven years prior to the application.

Nicolas Aubriet appealed, with the help of the Luxembourgish trade union ALEBA, to the Luxembourg Administrative Court against the decision of the Minister. The Luxembourg court then asked the ECJ whether the condition of being children of workers who have been employed or have worked in Luxembourg for at least five years during the reference period of seven years at the end of the the date of the application for financial aid is necessary to achieve the objective claimed by the Luxembourg legislator to contribute to increasing the proportion of persons holding a higher education diploma.

In its judgement of 10 July 2019, the ECJ stated that the case is an extension of two other cases concerning the Luxembourg State and that it raises the question of the compatibility of Luxembourg law with the EU principle of equal treatment. It went on to point out that the principle of equal treatment prohibits not only direct discrimination based on nationality, but also all indirect forms of discrimination which, by applying other criteria of distinction, lead to the same result.

The ECJ pointed out that Luxembourgish legislation contains a distinction based on residence, which may be used to the detriment of nationals of other Member States, since non-residents are most often non-nationals and this distinction constitutes a indirect discrimination on grounds of nationality which can only be admitted if it is objectively justified.

The objective invoked by Luxembourgish law and aimed at significantly increasing the share of residents holding a higher education diploma in Luxembourg was thus considered a legitimate objective capable of justifying indirect discrimination on the basis of nationality. It was therefore necessary to investigate whether the introduction of a seven-year reference period preceding the application for financial assistance to calculate the five-year minimum working period does not go beyond what is necessary to reach the sought objective.

However, in view of the situation of Bruno Aubriet who had, in the years preceding his son's request for financial assistance, been in a permanent position in Luxembourg for a significant period of time, significantly longer than minimum period of five years, the ECJ has noted that taking into account only the activity carried out in Luxembourg by the cross-border worker during a reference period of seven years preceding the application for financial aid is not sufficient to fully appreciate the importance of his links with the Luxembourg labour market, particularly where he has already been employed for a significant period of time before the reference period.

The ECJ has therefore concluded that a rule such as that provided for by Luxembourgish law entails a restriction that goes beyond what is necessary to achieve the legitimate objective of increasing the number of graduates of higher education within the resident population.