R (Bidar) v London Borough of Ealing

Brief : 110038

Delivery Time : 16/04/2006

Title: Critically analyse the European Court of Justice ruling in Case C-209/03 The Queen (on the application of Dany Bidar) v London Borough of Ealing & Secretary of State for Education and Skills , nyr (5 March 2005).

Focus on (a) the extent of the rights conferred by European citizenship and (b) the implications, if any, for Member States’ competence and their ability to make welfare benefits conditional.”

ANSWER

Introduction: the creation and recognition of the EU citizen

Article 18 (formerly Article 8a) of the Treaty of Rome sets down the following fundamental provision:

“1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”

The association of states which is now known as the European Union began life as the European Economic Community (hereafter “EEC”) in 1957 under the authority of the Treaty of Rome. Originally, as its name suggests, scope of the EEC was exclusively economic in nature and rights were, generally speaking, restricted to economic competencies and spheres. That said however, from relatively early in the life of the EEC it became clear that its leading members desired a deeper and more comprehensive form of association between the states of Europe. This was largely motivated by a fear of further conflict on the European continent – after all two devastating World Wars in quick succession had ravaged Europe – and also prompted by a desire to combine economically to compete effectively on the world stage and a will to provide a higher standard of living and life for the peoples of Europe.

The Single European Act of 1987 took the first steps towards further integration but it was the Maastricht Treaty, formerly known as the Treaty on European Union of 1992^[1], which set in train the full process of deeper and closer integration. As part of these changes the European Economic Community was renamed the European Community. This seems like a small matter but in fact it is submitted that the deletion of the word Economic from the title of the organisation was an important and progressive measure given that it demonstrated that the Community had developed beyond its exclusively economic horizons into broader areas of power and competence. It was at this point that the old concepts rooted in economic terminology and definition which had previously determined rights and liabilities under EC law began to be replaced by other concepts. In particular, as one significant part of these reforms, the jurisprudence on the principle and rights attached to the notion of free movement around the Community began to shift in emphasis away from workers and onto citizens within the Community. In turn, the European Community had by this time become one component part of the greater European Union, which possessed far broader scope and competencies, many of which are necessary to sustain the collective notion of EU citizenship in its fullest sense.^[2]

The Bidar Case

In March 2005, in The Queen (on the application of Dany Bidar) v London Borough of Ealing & Secretary of State for Education and Skills^[3] the European Court of Justice delivered a judgment on the English regulations for providing assistance for other European Union nationals studying in the UK with maintenance costs. The Court of Justice ruled that the said domestic provisions for giving maintenance grants were not compatible with EU law because they were subject to the student being “settled” in the United Kingdom. It was found to be not possible for a national of another member state, to acquire the status of a “settled” person in his or her capacity as a student.

The position in England and Wales^[4] is that UK students are entitled to assistance with maintenance costs in the form of student loans from the state. Such loans are set at a rate of interest lower than that typically available in the commercial sector and they fall due for repayment when the student in question commences work that pays over a certain threshold. The Court of Justice noted that students from other European Union member states are eligible for such loans if they qualified as “settled” in the United Kingdom and had been domiciled in the country for a period of at least three years before commencing the relevant course of study. However, it was found that it was not legally possible to achieve a “settled” status while a student.

The European Court of Justice has previously determined that, while students from other EU member states should be dealt with on the same basis as home nationals in regards to the payment of tuition fees, European Union law did not necessarily demand equal treatment between these respective groups in respect of study maintenance costs. It is submitted that the development of the notion and legal status of European Union citizenship has served to change the Court’s position and this jurisprudential shift has been both defined and cemented by the EU’s growing role in the sphere of training and education generally.^[5]

In Bidar the Court ruled:

“1. Assistance, whether in the form of subsidised loans or of grants, provided to students lawfully resident in the host Member State to cover their maintenance costs falls within the scope of application of the EC Treaty for the purposes of the prohibition of discrimination laid down in the first paragraph of Article 12 EC.

2. The first paragraph of Article 12 EC must be interpreted as precluding national legislation which grants students the right to assistance covering their maintenance costs only if they are settled in the host Member State, while precluding a national of another Member State from obtaining the status of settled person as a student even if that national is lawfully resident and has received a substantial part of his secondary education in the host Member State and has consequently established a genuine link with the society of that State.”^[6]

It seems clear as a consequence of Bidar that the European Court has now concluded that help afforded to students resident in an EU member state which is designed to cover their maintenance costs, whether that assistance takes the form of a grant or a subsidised loan, falls to be addressed by the equality provisions of European Union law. Unequal treatment or discrimination will therefore require to be excused by objective justification.

That said, the Court of Justice conceded that member states could reasonably implement measures to guarantee that providing maintenance costs assistance for students from other EU member states does not become an excessive drain on the resources of the state which might negatively effect the overall level and quality of help which the state in question can afford. In so doing the Court noted that it was permissible for a member state to require students to demonstrate a certain degree of integration into, or tangible link with, the society of the state in question before falling responsible for supporting the said student in his or her studies.

EU Citizenship and entitlement to Welfare Benefits

As stated above, the traditional approach of European Community law and the consistent policy of the European Court has been to apportion free movement rights set down by the EC Treaty of Rome and subordinate EC legislation to economically active workers and their families. However, during the 1990s the European Court began shift the emphasis of its judgments in the context of free movement based on litigation. A case in point is Rudy Grzelczyk v Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve,^[7] in which a student was denied Belgian social security benefits on the grounds that he was a citizen of France. The European Court of Justice ruled that it was the claimant’s status as an EU citizen which entitled him to parity in treatment with that of Belgian citizens on these facts.

Article 39 of the Treaty of Rome specifies that economic activity is a prerequisite for protection but it was clear that Grzelczyk was neither economically active nor formally entitled to the relevant benefit under Belgian law. A purposive interpretation of European Union law was applied by the Court in order to insist that the claimant be treated in the same manner as a Belgian citizen due to his conceptual and now legal entitlement to such treatment by virtue of his citizenship of the European Union. The Court is well known for making such progressive rulings^[8] and has been instrumental in rolling back the frontiers of EC competence for decades in this fashion: see for example: Defrenne v Sabena^[9].

The Court resolved that European Union citizenship was by that point in time a crucial identifier and legal qualifier under EU law. The Court of Justice in Grzelczyk held that citizenship was:

“destined to be the fundamental status of nationals of the member states, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for”^[10].

This grand statement of policy and intent delivered by the Court has been restated on several occasions and must now be treated as an integral part of the EU legal superstructure. Indeed the Bidar case under review offered the Court of Justice a perfect opportunity to entrench this principle and it is submitted that the Court took full advantage of that in its judgment.

In the case Chen v. Secretary of State of the Home Department,^[11] the citizenship principle was again applied. A pregnant Chinese woman gave birth to a daughter after travelling to Ireland. The Irish Nationality laws provided that the baby became an Irish citizen and as a consequence she also became a citizen of the EU. An application was thereafter made for the pair to take up residence in the United Kingdom. Given that the baby was an EU citizen, the Court of Justice ruled that Article 18 EC granted the child and her mother the right to long term residence in the United Kingdom. However, mindful of the circumstances of the case the Court did stress that its rulings was made on the basis that neither party should burden the welfare state of the United Kingdom, although it is hard to see how in practice this stipulation could be policed.

Collins v. Secretary of State for Work & Pensions^[12] provoked consideration of the question as to whether the United Kingdom provision that the granting of a social security benefit depended on proof of “habitual residence” was in conflict with EU law. Collins, an Irish citizen, resided in the UK for a very short period in the1980s before moving to the United States of America. On his return to the United Kingdom, Collins was denied the social security benefit in question on the grounds that he did not qualify as habitually resident in the UK. The Court of Justice found that, as an EU citizen, the claimant was fully entitled to a right not to be discriminated against on the basis of his residence status and thus that he should be treated in similar fashion to ordinary UK citizens. It is submitted that Collins drives a coach and horses through the residence requirements that have for decades ring-fenced the welfare state and there are far reaching financial implications for the public purses of the UK and all member states.

Conclusions

The cases discussed demonstrate that Bidar does not stand alone but as part of a wider picture of legal development. The right of EU citizenship set down in Art 18 EC, is now being teleologically applied by the European Court in the context of entitlement to welfare state support so as to supplement and build on the free movement rights hitherto available only to workers. As a consequence of these changes the vast body of legislation and case law on free movement should now be read as both subject and subordinate to Article 18. It is submitted that the legal concept of “EU worker” is now highly susceptible to replacement by the concept of “EU citizen” and that one of the key ramifications of this is that the member states of the Union must be prepared to take a broader and more flexible view as to the nature and modus operandi of their domestic welfare provisions.^[13] It is concluded that it is no longer lawful under the EU legal matrix, to restrict entitlement to state benefits on grounds of nationality or residence in such a way as to discriminate against citizens of other member states either directly or indirectly. The Court of Justice has demonstrated an ability and an intention to take the broad and EU-centred view and treat EU citizenship as dominant over its domestic equivalent. EU citizenship in this sense means that every EU citizen must be treated as a citizen of every member state, and while causing potential difficulties and creating additional burdens for the member states, in particular in the field of state welfare benefits, this development must surely be celebrated as guaranteeing a huge increase in the number and quality of individual rights enjoyed by the people of the European Union.

It is likely that Bidar and the body of jurisprudence from which it derives is the beginning and not the end of the story. It seems almost inevitable that future decisions will further extend and enhance the package of rights associated with EU citizenship and the European Court will surely continue to receive the support and encouragement of the Commission and Parliament to this end. It is very much in the interests of the greater project of European integration to empower the concept of EU citizenship. However, sceptical Member States, and those with the most to lose (or contribute – depending on your point of view) in particular in regard to the new EU focus imposed on state welfare mechanisms, may put a brake on further progress. The future of EU citizenship is thus likely to depend more on broader political issues and consensus than it does on the pro-action of the Court of Justice. If Bidar is to prove to be a landmark rather than a footnote then it will be necessary to move forward with the agreement of a grand majority and not just the enthusiastic.

THE END

WORD COUNT : 2512 (excluding footnotes)

BIBLIOGRAPHY

Dougan M., “Fees, grants, loans and dole cheques: who covers the costs of migrant education within the EU?” (2005) 42 CMLR 943

Weatherill, S. Cases and Materials on EU Law, (Oxford University Press: 2004)

White, R., “Free movement, Equal treatment, and Citizenship of the Union” (2005) 54 ICLQ 885

Steiner & Woods, Textbook on EC Law (Oxford University Press: 2003)

Barnard, C, “EU citizenship and the principle of solidarity” in Dougan and Spaventa (eds) Social welfare and EU law (Hart, 2005)

Official Journal of the European Union: http://europa.eu.int/eurlex/lex/LexUriServ/site/en/oj/2005/c_132/c_13220050528en00080008.pdf

Europa: Gateway to the European Union: http://europa.eu.int/index_en.htm

Treaty of Rome (consolidated version)

EC Legislation 2005-2006, Foster (2005) Blackstones Statutes

1

^[1] See for full text: http://europa.eu.int/eur-lex/lex/en/treaties/dat/11997E/htm/11997E.html#0173010078

^[2] See for comment: Craig & De Burca, EU law Text, Cases and Materials (Oxford University Press: 2003), Chapter 1.

^[3] Case C-209/03.

^[4] A different situation applies in Scotland/

^[5] For an insightful overview see: Dougan M., “Fees, grants, loans and dole cheques: who covers the costs of migrant education within the EU?” (2005) 42 CMLR 943.

^[6] http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2005/c_132/c_13220050528en00080008.pdf.

^[7] Case C-184/99.

^[8] As discussed in White, R., “Free movement, Equal treatment, and Citizenship of the Union” (2005) 54 ICLQ 885.

^[9] Case 43/75 [1976] ECR 455.

^[10] Para. 31.

^[11] Case C-200/01.

^[12] Case C-138/02.

^[13] For an insightful overview see: Barnard, C, “EU citizenship and the principle of solidarity” in Dougan and Spaventa (eds) Social welfare and EU law (Hart, 2005).