Table of Contents: I. Introduction. – II. The perplexing extension of “sufficient links” tests to frontier workers’ social advantages. – II.1. A questionable but minor initial development. – II.2. A problematic extension to student finance. – II.3. A clear break with established case law and secondary law. – III. A contentious “investor’s approach” to social advantages. – III.1. Questionable legitimacy. – III.2. Questionable workability. – IV. A problematic case law caused by the absence of ambitious legislative reforms. – IV.1. The uncertain development of a specific status for frontier workers. – IV.2. A consequence of Member States’ adaptation to Union citizen rights. – IV.3. The need for legislative reform.
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 EU, 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 Art. 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 Article 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 economically inactive citizens, as well as in insufficient legislative intervention at EU level.
Keywords: free movement of workers – frontier workers – Union citizenship – discrimination – student finance – social advantages.
* Maître de conférences, University of Nantes, firstname.lastname@example.org.