Action brought on 12 May 2014 — European Commission v Kingdom of the Netherlands
(Case C-233/14)
Language of the case: Dutch
Parties
Applicant: European Commission (represented by: M. van Beek and C. Gheorghiu, Agents)
Defendant: Kingdom of the Netherlands
Form of order sought
The Commission claims that the Court should:
declare that, by restricting access to public transport passes with preferential fares for students who pursue their studies in the Netherlands to Netherlands students who are enrolled in private and public educational establishments in the Netherlands and to students from other Member States who are economically active or have obtained a permanent right of residence in the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 18 TFEU (in conjunction with Articles 20 TFEU and 21 TFEU), and Article 24(2) of Directive 2004/38/EC 1 of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States;
order the Kingdom of the Netherlands to pay the costs.
Pleas in law and main arguments
1. While Netherlands students can benefit from public transport passes for students (the OV-studentenkaart) (‘the student public transport pass’) with which they are able to travel for free or at a reduced fare on public transport in the Netherlands, students from other Member States who are not economically active in the Netherlands or have not obtained a permanent right of residence there must pay the full fare.
2. The Commission is of the opinion that the Netherlands legislation results in direct discrimination based on nationality, given that EU citizens who are not Dutch are treated less favourably than Dutch persons. The Netherlands has thus failed to fulfil its obligations under Article 18 TFEU in conjunction with Articles 20 TFEU and 21 TFEU.
3. Next, there is indirect discrimination based on nationality if a national measure, although worded in neutral terms, works to the disadvantage of a much higher percentage of certain persons, unless that difference in treatment is justified by objective factors unrelated to any discrimination on grounds of nationality.
4. Since, in the context of the Erasmus programme, there are more foreign students studying in the Netherlands than Netherlands students, who have opted to pursue their complete course of study abroad, and since, instead of a student public transport pass, a monthly ‘portable funding for studies’ of EUR 89.13 (2013 rate) is granted to the latter group of students, it is only ultimately foreign students in Netherlands who receive no form of financial benefit or no advantage in the form of the student public transport pass. In the Commission’s submission, this constitutes an indirect form of discrimination on the basis of Article 24 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
5. Since the Netherlands has thus far failed to adopt all measures to bring to an end the difference of treatment of which foreign students are the subject in relation to the possibility of claiming entitlement to the student public transport pass, the Commission concludes that the Netherlands has failed to fulfil its obligations under Article 18 TFEU (in conjunction with Articles 20 TFEU and 21 TFEU), and Article 24(2) of Directive 2004/38/EC.
____________1 Directive of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).