Professional activity can lead to eligibility for study grants for EEA-students

12. May 2019
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Won by the ÖH: A student from the EEA region is treated equally to Austrian students due to his employment alongside his studies and receives study grants for his Master’s studies.

Student R would like to inform himself about the possibilities of support during his master studies in Austria in a counseling interview at the Department for Social Policy of the Austrian National Union of Students (ÖH). In the meantime, R has been living in Austria for three years and has already been able to successfully complete his bachelor’s degree, which he studied at an international distance learning university, in the minimum study time.

In a conversation with the responsible lawyers of the ÖH, R is recommended to apply for a student grant. R started working alongside his studies soon after moving to Austria. Since then, R has been completely self-financing his life and studies in Austria. His parents live in the home country and cannot support him due to their low income. For the first two years, R worked part-time at 10 hours per week; for the last few months before starting his master’s degree, he worked full-time at another company; and since starting his master’s degree, he has worked at 8 hours per week, earning just below the marginal earnings threshold.

R follows the advice of the ÖH advisors and applies for a student grant for his master’s degree in the winter semester of 2018. He also attaches a detailed statement to his application to explain why he believes that he should be placed on an equal footing with Austrian students in terms of entitlement to study grants. However, after only a short time, a negative decision is issued by the study grant authority. In it, the authority does not address the comments in the opinion at all. The reasoning merely states that R does not have Austrian citizenship and that the equal opportunity requirements under the Student Support Act (StudFG) are not met.

Student R again seeks counseling at the ÖH’s Department for Social Policy. This supports him in filing an appeal against the negative decision. With regard to the entitlement to study grants, students from the EEA area are to be treated in the same way as students with Austrian citizenship if, among other things, they qualify as “migrant workers” under European law – i.e. if they are working as European citizens in another Member State. The European Court of Justice (ECJ) has already ruled that this term may not be interpreted narrowly by the member states. An employee within the meaning of European law is anyone who carries out an actual and genuine activity, which is not only to be assessed as completely subordinate and insignificant, for another person according to his or her instructions in return for remuneration. Whether these criteria are met must be examined on a case-by-case basis.

There are already several court decisions according to which a limited amount of remuneration for the activity or limited weekly working hours do not preclude a person from being recognized as an employee under European law. Furthermore, the ECJ has stated that, in assessing this legal question, it is irrelevant whether or not the person entered the Member State at the time of entry with the intention of pursuing employment.

About two months after filing the appeal, R receives a new notice. The study grant authority awards him the study grant for his master’s degree. Thus, he was able to convince the authority that he qualified as a migrant worker.

Won by the ÖH: A student from the EEA region is treated equally to Austrian students due to his employment alongside his studies and receives study grants for his Master’s studies.

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