Home Education Higher Education Institutions in the EU: Between Competition and Public Service
Traditionally, national public services were based on nationality and territoriality. These traditional settings changed through European integration. According to the free movement provisions, economically active citizens of other Member States have to be treated as nationals, which, inter alia, allows them to take part in their host state’s education system and makes them eligible for benefits (further below in Sect. 2.3.2). With the introduction of Union Citizenship, free movement and the prohibition of discrimination were then extended to all Union Citizens.
Union Citizenship and HEIs
According to Article 21 TFEU every Union Citizen has the right to reside wherever he or she wishes within the EU and Article 18 TFEU provides that a Union Citizen legally residing in the territory of another Member State has the right to equal treatment. However, this is subject to Directive 2004/38/EC, which gives Member States the right to deny residency if the Union Citizen does not have sufficient resources and health insurance (Article 7(b) and (c)) and would thus become ‘an unreasonable burden’ on the host state. A line of CJEU case law broadened the latter somewhat in that the financial independence of the economically inactive EU migrant does not have to cover absolutely every circumstance, as a certain amount of solidarity from the host state can be expected and such limited reliance on the host state’s finances does not give the host state the right to deny residency. When it comes to equal treatment, the lawfully residing EU migrant
(and his or her family members) can generally expect equal treatment, but this can be limited through secondary law (in particular Article 24 of Directive 2004/38). Outside such limitations, unless there is a ‘real link’ to the host state’s society, Union Citizenship provides the right to equal treatment regarding access to social benefits without the security of residency rights.  Indeed, in Dano and Alimanovic10 the Court allowed for Member States to combine the criteria for residency and access to social benefits (and to rely on general rules rather than individual assessment) to deny access to social benefits. 
In Gravier12 the Court applied this general line that residency and equal treatment for EU migrants should be ensured without creating ‘an unreasonable burden’ on the host state in field of higher education. Here it developed the approach (now to be found in Article 24(2) Directive 2004/38) that no discrimination is allowed in any area connected to access to higher education (e.g. entry grades, fees), but the eligibility to additional support (e.g. maintenance grants) can be limited to permanent residents.
A similar approach is taken towards the home state and the exportation of grants; generally no territoriality requirement can be imposed unless either the increased number of potential benefit recipients would provide an unreasonable burden or no ‘real link’ to the home state exists anymore. The two approaches are regarded as cumulative and interactive in that the migrant’s home state is supposed to support him or her until his or her ties to the host state are close enough to allow benefits to be granted there. The latter argument was posited as the way forward in the field of educational mobility.
Overall, Member States have eagerly tried to retain control over more social policy areas. In health (Article 168 TFEU), education (Article 165 seq TFEU) and social security (Article 151 seq TFEU) the EU has only limited competences. In the field of education, the Member States avoided the supranational mode of harmonisation and during the negotiations for the Treaty of Lisbon much emphasis was placed on the principle of conferral of competences and the principle of subsidiarity. The Court’s (earlier) judgements on EU citizenship have thus been criticised for interfering with national welfare systems which are particularly sensitive areas closely related to national finances. Additionally, the Court’s case to case approach makes this area of law somewhat unpredictable. Even if one disagrees with this criticism and instead finds the Court’s overall approach to be reasonable, appearing as it does, to strike a balance between upholding the free movement of citizens and the concerns of the Member States, the cases discussed in the following demonstrate that the citizenship provisions, under certain circumstances, can in fact lead to significant spill-over into national HEI policies.
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