30.4.2011

EN

Official Journal of the European Union

C 130/13

(Case C-75/11)

2011/C 130/23

Language of the case: German

Parties

Applicant: European Commission (represented by: V. Kreuschitz and D. Roussanov, Agents)

Defendant: Republic of Austria

Forms of order sought

—declare that the Republic of Austria has failed to fulfil its obligations under Article 18 TFEU in conjunction with Articles 20 and 21 TFEU and Article 24 of Directive 2004/38/EC (1) of the European Parliament and of the Council 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, by granting reduced fares on means of public transport in principle only to students in respect of whom Austrian family assistance is granted;

—order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Union citizens have the right to move freely within the territory of the Member States subject to the conditions and limits defined by the Treaties and by the measures adopted thereunder. In so far as Union citizens exercise that right they must in principle be treated in the same way as citizens of the host Member State.

The linkage of the fare reduction for students at issue in the present dispute to the receipt of family assistance in Austria is by nature such as to disadvantage nationals of other Members States compared to Austrian citizens and therefore infringes the principle of equal treatment of Union citizens and a Member State’s own nationals.

Contrary to the view of the Austrian Government, the price reduction does not constitute a contribution in kind to compensate for family burdens, as it is clearly a benefit which can be claimed only by matriculated students at a college or university.

The unequal treatment of students whose parents cannot claim Austrian family assistance is also not covered by the exception contained in Article 24(2) of Directive 2004/38, according to which a host Member State may in certain circumstances refuse to grant aid for studies consisting in student grants or student loans to students from other Member States.

Exceptions from the equality principle must be interpreted strictly. Therefore reduced travel fares for students cannot be regarded as aid for studies consisting in student grants or student loans. The exclusion of students whose parents do not receive Austrian family assistance from the fare reduction at issue in the present case therefore infringes European Union law.

(1) OJ 2004 L 158, p. 77.