Wichtiger Hinweis

    Gemäß der geltenden Sächsischen Corona-Schutz-Verordnung dürfen Personengruppen, die das Gebäude betreten möchten und Angehörige verschiedener Hausstände umfassen, maximal aus 11 Personen bestehen (§ 2 Abs. 2 Nr. 2 SächsCoronaSchVO).

Judgment of 17 July 2019 -
BVerwG 5 C 8.18ECLI:DE:BVerwG:2019:170719U5C8.18.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 17 July 2019 - 5 C 8.18 - para. 16.

Compatibility of the minimum period of education or training in accordance with section 5 (2) third sentence BAföG (now section 5 (2) second sentence BAföG) with the right of free movement and residence under EU law

Headnote

The minimum period of residence relating to attendance at a particular education or training establishment referred to in section 5 (2) third sentence first half-sentence BAföG is not compatible with the right of free movement and residence under EU law and does not apply to attendance at education or training establishments in EU Member States.

  • Sources of law
    Code of Administrative Court ProcedureVwGO, Verwaltungsgerichtsordnungsections 144 (4), 154 (2)
    Federal Education and Training Assistance Act, old versionBAföG a.F., Bundesausbildungsförderungsgesetz, alte Fassungsections 2, 5 (2) first sentence no. 3 and third sentence first and second half-sentence, (4)
    Treaty on the Functioning of the European Union (TFEU)articles 20 (2) (a), 21 (1), 165 (2) second indent

Summary of the facts

The parties are in dispute as to whether the claimant is eligible for an education or training grant under the Federal Education and Training Assistance Act (BAföG, Bundesausbildungsförderungsgesetz) for study visits to Brussels (Belgium) and Tilburg (Netherlands) as part of a master's degree programme at an English university.

From 1 September 2010 until the end of September 2011, the claimant was studying for a master's degree Polis European Urban Cultures at Manchester Metropolitan University. The defendant authority refused his application for an education or training grant for study visits of two months each to Brussels and Tilburg which he completed as part of this programme of studies because the minimum period of education or training under section 5 (2) third sentence BAföG was not fulfilled.

After unsuccessful action before the Administrative Court (Verwaltungsgericht), the Higher Administrative Court (Oberverwaltungsgericht) amended the judgment and obliged the defendant to approve the claimant's application for an education or training grant for the two study visits as provided for under the law. 

The defendant's appeal on points of law was unsuccessful.

Reasons (abridged)

7 (...) In its result compatible with federal law (section 144 (4) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)), the Higher Administrative Court found that the claimant was eligible for an education or training grant for the two-month study visits completed in Brussels (...) and Tilburg (...) in accordance with section 5 (2) first sentence no. 3 BAföG in the version promulgated on 6 June 1983 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 645, 1680), last amended by article 2a of the Act of 20 December 2008 (BGBl. I p. 2846), and, for the time after 28 October 2010, in the version promulgated on 7 December 2010 (BGBl. I p. 1952).

8 Under section 5 (2) first sentence no. 3 BAföG, students or trainees who have their permanent residence in Germany are awarded an education or training grant to attend an education or training establishment abroad if education or training is taken up or continued at an education or training establishment in a Member State of the European Union or in Switzerland. It is rightly not disputed between the parties that the education or training the claimant received during his study visits to Brussels and Tilburg was eligible for assistance within this meaning and that the other formal and substantive requirements for the payment of an education or training grant under the Federal Education and Training Assistance Act were fulfilled. The only matter of dispute is whether the minimum period of education or training under section 5 (2) third sentence first half-sentence BAföG is fulfilled.

9 Contrary to the Higher Administrative Court's view, the claimant's study visits to Brussels and Tilburg, each of two months' duration, do not fulfil the minimum period of education or training requirement pursuant to section 5 (2) third sentence first half-sentence BAföG (1.). Nevertheless, the claimant is eligible for an education or training grant under section 5 (2) first sentence no. 3 BAföG. Section 5 (2) third sentence first half-sentence BAföG is not applicable to education or training at an education or training establishment in a Member State of the European Union due to the primacy of EU law. The provision is not compatible with the right of free movement and residence provided for in article 20 (2) (a), article 21 (1) of the Treaty on the Functioning of the European - TFEU - in the version promulgated on 9 May 2008 (OJ C 115 p. 47 and BGBl. II 2008 p. 1038 <1054>; in force for the Federal Republic of Germany since 1 December 2009, BGBl. II p. 1223) (2.).

10 1. The claimant's study visits to Brussels and Tilburg do not fulfil the minimum period of education or training requirement pursuant to section 5 (2) third sentence first half-sentence BAföG. Under this provision, education or training must have a minimum period of six months or one semester. The point of reference of the minimum period of education or training regulated in section 5 (2) third sentence first half-sentence BAföG is not the education or training as a whole or the total proportion of education or training spent abroad, but attendance at the particular education or training establishment abroad. This follows from the wording (a) and in particular from the systematic connection of the provision (b). Nothing else arises from the spirit and purpose deriving from the legislative history (c). Thus, attending education or training establishments in Brussels and Tilburg is not eligible for assistance (d).

16 According to this provision, the claimant's study visits to education or training establishments in Brussels and Tilburg, each of two months' duration, do not fulfil the minimum period of education or training requirement of six months or one semester as specified in section 5 (2) third sentence first half-sentence BAföG.

17 2. However, the claimant is eligible for an education or training grant for the study visits to Brussels and Tilburg under section 5 (2) first sentence no. 3 BAföG. The minimum period of residence relating to attendance at a particular education or training establishment referred to in section 5 (2) third sentence first half-sentence BAföG is not compatible with the right of free movement and residence provided for in EU law under article 20 (2) (a), article 21 (1) TFEU. Section 5 (2) third sentence BAföG constitutes a restriction of the right of free movement and residence under EU law (a), which cannot be justified according to the standards laid down by EU law (b). A preliminary ruling by the Court of Justice of the European Union (CJEU) under article 267 TFEU is not required (c). Section 5 (2) third sentence first half-sentence BAföG is not applicable, due to the precedence of EU law (d).

18 a) The minimum period of residence specified in section 5 (2) third sentence first half-sentence BAföG restricts the right of free movement and residence provided for in EU law under article 20 (2) (a), article 21 (1) TFEU. Under these provisions, every citizen of the Union and thus every German national has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. A Union citizen may also invoke this right vis-à-vis his or her Member State of origin. The Member States are responsible for the content of teaching and the organisation of their respective education systems under article 165 (1) TFEU. However, they must exercise this competence in compliance with EU law, in particular in compliance with the right of free movement and residence provided for in EU law under article 20 (2) (a), article 21 (1) TFEU.

19 If national legislation governing an education and training assistance system places certain nationals of the Member State concerned at a disadvantage simply because they exercise their freedom to go to another Member State as well as to freely move and to reside there, this constitutes a restriction of this right. The opportunities offered by article 20 (2) (a), article 21 (1) TFEU in respect of freedom of movement for citizens of the Union cannot be fully effective if a national of a Member State can be deterred from availing himself or herself of them by obstacles placed in the way of his or her stay in another Member State by legislation of his or her state of origin penalising the mere fact that he or she has used those opportunities. This particularly applies in the field of education in view of the objective pursued by article 165 (2) second indent TFEU of encouraging mobility of students and teachers. Consequently, where a Member State provides for an education or training assistance system which enables students or trainees to receive grants if they pursue studies or training in another Member State, it must ensure that the detailed rules for the award of those grants do not create an unjustified restriction of the right to move and reside within the territory of the Member States (see CJEU, judgment of 23 October 2007 - C-11/06 and C-12/06 [ECLI:EU:C:2007:626], Morgan and Bucher - para. 22 and 24 to 28 with further references; Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 16 May 2013 - 5 C 22.12 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 146, 294 para. 13 with further references).

20 Within the framework of this EU legislation, the requirement for assistance of section 5 (2) third sentence first half-sentence BAföG constitutes a restriction of the right of free movement and residence provided for in EU law. If legislation makes the award of a grant for education or training undertaken abroad subject to the condition of a minimum period of education or training, as is the case here, it constitutes a restriction within the meaning of article 21 TFEU if a grant would be awarded to an applicant in the same personal situation to undertake in Germany education or training equivalent to that which he or she pursued in another Member State (...), which is the case here. Such a requirement is likely to dissuade Union citizens, such as the claimant, from exercising their right to freedom of movement and residence in another Member State, given that they would receive an education or training grant for comparable education or training in Germany, but would only receive it for education or training in a Member State of the European Union upon fulfilment of the minimum period of education or training requirement for each education or training establishment attended. Moreover, the restrictive effects created by the minimum period of residence requirement are not too uncertain or too insignificant to constitute a restriction on the freedom of movement and residence (see CJEU, judgment of 24 October 2013 - C-275/12 [ECLI:EU:C:2013:684], Elrick - para. 28 to 29).

21 b) The restriction of the right of free movement and residence provided for in EU law by the minimum period of education or training requirement under section 5 (2) third sentence first half-sentence BAföG is not justified. Under EU law, that would require the restriction of the right of free movement and residence to be based on objective considerations of public interest independent of the nationality of the persons concerned and to be proportionate to the legitimate objective pursued by the provisions of national law. That requires the restriction of the right of free movement and residence to be suitable for securing the attainment of the permissible ("legitimate") objective under EU law and not to go beyond what is necessary in order to attain that objective (see CJEU, judgments of 23 October 2007 - C-11/06 and C-12/06 - para. 33 and of 24 October 2013 - C-275/12 - para. 30 with further references). The Higher Administrative Court rightly held that this was not the case.

22 aa) Insofar as the legislature was aiming to use the minimum period of education or training in accordance with section 5 (2) third sentence first half-sentence BAföG to ensure that the student or trainee can become acquainted with the language, country and people of the state of stay (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 11/5961 p. 19), as evidenced by the legislative material, it links the education or training assistance with a benefit that extends beyond the education or training itself. Such added value of education or training abroad in comparison with education or training in Germany is not a legitimate purpose within the meaning of EU law, but unjustified discrimination. National law thus makes education or training assistance for a cross-border case dependent on more stringent requirements than for a purely domestic case, thus treating the former less favourably than the latter, for which sufficient public interest grounds are not discernible (see BVerwG, judgment of 16 May 2013 - 5 C 22.12 - BVerwGE 146, 294 para. 21 et seq.)

23 bb) There is equally no justification for restricting the right of free movement and residence in the light of the further purpose of the minimum period of education or training to guarantee completion of useful partial education or training within the usual education or training period at the foreign education or training establishment (BT-Drs. 14/4731 p. 31). Assuring the quality of education or training is a legitimate objective within the meaning of EU law. Irrespective of the nature and content of the education or training, the requirement of a minimum period of education or training within the meaning of section 5 (2) third sentence first half-sentence BAföG, however, appears to be devoid of any link to the standard of the selected education or training if education or training which does not satisfy that requirement, but which is undertaken in Germany, is subsidised. Thus, if only on account of a lack of consistency with the provisions of EU law, it is not likely to guarantee the quality of the education or training (see CJEU, judgment of 24 October 2013 - C-275/12 - para. 32 et seq.).

24 c) Without referral to the Court of Justice of the European Union, the Senate can decide that the right of free movement and residence as guaranteed by EU law precludes the application of national law. The standard under EU law for assuming a restriction of the right of free movement and residence under article 20 (2) (a), article 21 (1) TFEU and its justification - as shown - can already be clearly and unambiguously inferred from the previous case-law of the Court of Justice of the European Union ("acte clair"), particularly also in respect of national education or training assistance provisions, so as to leave no scope for any reasonable doubt (see CJEU, judgment of 6 October 1982 - C-283/81 [ECLI:EU:C:1982:335], Cilfit and others - para. 16 and 21). The question to be differentiated from this as to whether the national provision of section 5 (2) third sentence first half-sentence BAföG and its application actually serves the objectives which might justify it and whether the restriction it imposes on the right of free movement and residence provided for in EU law does not appear disproportionate in the light of those objectives is to be decided by the national court (established case-law of the CJEU, see e.g. judgment of 3 June 2010 - C-258/08 [ECLI:EU:C:2010:308], Ladbrokes - para. 22 with further references; see also BVerwG, judgments of 26 October 1995 - 2 C 18.94 - (...), of 24 November 2010 - 8 C 15.09 - (...) and of 16 May 2013 - 5 C 22.12 - BVerwGE 146, 294 para. 27 et seq.).

25 d) The incompatibility of national law with article 20 (2) (a), article 21 (1) TFEU leads to a prohibition on the application of section 5 (2) third sentence first half-sentence BAföG due to a lack of any possible interpretation in conformity with EU law insofar as the assistance is for attendance at an education or training establishment in a European Union Member State. An interpretation in conformity with EU law reaches its limits in the wording of the respective provision and the clearly recognisable intention of the legislature (see BVerwG, judgment of 25 November 2004 - 2 C 49.03 - BVerwGE 122, 244 <249>). As shown under 1. above, approval of an education or training grant in accordance with the wording of section 5 (2) third sentence first half-sentence BAföG and the intention of the legislature deriving from the systematic connection and the explanatory memorandum is always subject to attendance for at least one semester or six months at an individual education or training establishment located abroad. According to the established case-law of the Court of Justice of the European Union, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law, is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently (see CJEU, judgment of 26 February 2013 - C-617/10 [ECLI:EU:C:2013:105], Aklagaren/Fransson - (...); BVerwG, judgment of 16 May 2013 - 5 C 22.12 - BVerwGE 146, 294 para. 27 et seqq.).