The Pernicious Influence of Citizenship Rights on Workers’ Rights in the EU – The Case of Student Finance

Abstract

A series of rulings by the Court of Justice, dating back to 2007, have seamlessly introduced an inequality between frontier workers and migrant workers within the European Union, especially in terms of access to social advantages. This series of precedents culminated in December 2016, in two rulings in which the Court of Justice accepted the validity of Luxembourgish rules relying on tests based on the duration of work in that Member State in order to determine who, among frontier workers, could benefit from portable funding to help their children to pursue higher education abroad. The lack of justification for this development of the case law concerning frontier workers is made all the more surprising by the fact that it is clearly contra legem. Both previous case law and secondary law have always held that frontier workers are workers exercising their freedom of movement under Article 45 TFEU, who should benefit from equal treatment. The potential scope of this new restriction to frontier workers’ rights under freedom of movement remains to be determined. This paper argues that these rulings are not only contra legem but also that they are based on highly questionable lines of reasoning, and that the explanation for this development can be found in the influence of Member States’ gradual adaptation to rules granting equal treatment to certain workers.