Your ref Our ref Date: 11/

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1 EFTA Surveillance Authority Rue Belliard 35 B-1040 Brussels Your ref Our ref Date: 11/ Information concerning support for studies for frontier workers and their family members in Norway, and for Norwegian nationals and their family members The Norwegian Ministry of Education and Research refers to the EFTA Surveillance Authority's request for information of 17 June Regarding frontier workers and their family members : l. Please explain the aim sought by the national provisions at issue separately as regards frontier workers and their family members. One of the central aims of the Norwegian system for student support is to contribute to supply the Norwegian society and employment market with workers of competence, cf. the Study Financing Act 1. This is the aim sought by the provisions at issue, both for frontier workers and their family members. The requirements for financing of studies abroad are important tools to achieve the aim of the Study Financing Act. It is legitimate to want to ensure that the recipients of support will make use of their education in the Norwegian employment market. 2. Please explain why the measures chosen are considered by the Norwegian Government appropriate with regard to the aim sought? The Norwegian Government consider the measures appropriate because we are of the opinion that the criteria for support under the new rules will make it likely that the student will settle Postal address Office address Telephone* Department of Our officer PO Box 8119 Dep Kirkeg * Administrative and Economic Affairs Ellen Smogeli Oslo Vat no. postmottak@kd.dep.no

2 and work in Norway after completing the studies. In our opinion the objective criteria are central factors when assessing the extent of the connection to the Norwegian society. A certain period of working as a frontier worker in Norway and proficiency in the Norwegian language will make it more likely that the student will settle in Norway and become integrated in the Norwegian labor market after completing his or her studies, even if those studies were undertaken abroad. For a family member of a frontier worker, the same considerations apply: If the parent has worked in Norway for a certain period of time, and the applicant him- or herself has been living close to Norway and is proficient in the Norwegian language, it is more likely that the student will work in Norway after completing the studies. In this way the measures are appropriate for attaining the objective of supplying the Norwegian society and employment market with workers of competence. Why the Norwegian Government has opted: 3.1. for the requirements of having worked for at least five years in Norway and being proficient in the Norwegian language as regards frontier workers, and 3.2. for the requirements of work of a frontier worker for at least five years in Norway, of the applicant's residence in another Nordic country during this period and of his proficiency in the Norwegian language (as regards family members of frontier workers), to the exclusion of all other criteria? Why, in the view of the Norwegian Government, there are no less restrictive measures with regard to the aim sought? The Norwegian Government must emphasize that the measures do not exclude other criteria. As the Authority is aware of, the applicant may be eligible for support if he or she has a connection to Norway which is considered to be equivalent to the situations covered by the objective criteria. Under this assessment, there are no restrictions on the relevant factors. In our opinion, a combination of objective criteria and a discretionary assessment is an effective system to safeguard the aims sought by the regulation.. The objective criteria are transparent and predictable, and will secure equal treatment for the large part of the students who fulfil the criteria. The discretionary assessment is applied in all cases where the objective criteria are not met. This will ensure that all relevant factors in the individual situation will be considered. The measures will not exclude other factors which may be representative for a person's connection to the Norwegian society. The necessary level of connection may exist through fulfilment of the objective criteria or of other factors that represent an equivalent connection. If one of the objective criteria is partly fulfilled, and other factors of connection exists, the applicant may be eligible for support. If the applicant is a child of a frontier worker in Norway who has worked there for two years, and the applicant has lived in a neighboring country and has some knowledge of the Norwegian language, he may be eligible for support if he e.g. has lived in Norway for a period of time, has other family there, or other factors which affect the connection in the individual case. If the applicant is a frontier worker who has worked in Norway for one year and does not speak Norwegian, the other factors of connection will have to be stronger to make the applicant eligible for support. The Norwegian Government consider it demanding to describe these different situations and possible factors of connection in an exhaustive manner. Page 2

3 With regard to the level of connection, either through fulfilment of the objective criteria or of other factors that lead to an equivalent connection, the Norwegian Government has observed that the share of EEA-citizens who is settled in Norway after they have received support for higher education abroad, is lower than the share of Norwegian citizens in the same situation, particularly for EEA-students who have studied in their home country. Several investigations show that a stable share of about 85 percent of Norwegian nationals who have studied abroad have returned to Norway within about five years after graduation. An investigation over a period of three years showed that for EEA nationals studying in another country than their home country, the share was between 67 and 85 percent. For EEA nationals studying in their home country, the share of return was between 50 and 75 percent. This means that there is reason to require a level of connection to Norway similar to the level represented by the earlier provisions. The aim for the Norwegian Government is to establish whether the student has a certain level of connection to Norway, and that it is likely that the student will work in Norway after completing the studies. It is not an aim in itself to limit the access to student support. 4. How the Norwegian Government justifies, in particular, the residence requirement in another Nordic country with regard to Article 4 EEA prohibiting any discrimination on grounds of nationality? The Norwegian Government is of the opinion that if a student has resided in a country close to Norway, it is more likely that the student settle and work in Norway after completing the studies, compared to a situation where the student has resided in a country further away from Norway. In C-20/12 Giersch, the Court of Justice stated that a "sufficient attachment of the student in question with the Grand Duchy such as to make it possible to conclude that that probability exists may also be derived from the fact that that student resides alone or with his parents in a Member State which borders upon the Grand Duchy of Luxembourg and that, for a significant period of time, his parents have worked in Luxembourg and live near to that Member State." 1 The Nordic countries (Denmark, Finland, Iceland, Norway, Sweden, and the Faroe Islands, Greenland, and Åland) are geographical neighbors. Residence in a country which borders upon the Member State is mentioned by the court as a fact which may affect the attachment to that state. The Nordic countries also have close cultural and historical ties, and Nordic cooperation is one of the world s most extensive forms of regional collaboration. The Norwegian Government is therefor of the opinion that residence in one of the Nordic countries will affect the student's decision on where to settle after completing higher education. The Norwegian Government do not consider this as discrimination on grounds of nationality. Where the student has lived, regardless of the nationality of the student, is a factor in the process of deciding whether the student has the necessary level of connection to Norway. We opted for the criteria "Nordic countries", and are of the opinion that wording like e.g. "neighboring country" og "country with strong historical and cultural ties to Norway" would 1 Paragraph 78 Page 3

4 cover the same area. To ensure the principles of transparence and predictability, we opted for the clearest wording. Regarding Norwegian nationals who have exercised their free movement rights in another EEA State and their family members: 5. How the criteria for support under the new rules are compatible with judgments of the Court of Justice of the European Union in Prinz, C-523/11 and C-585/l1, and B. Martens, C-359/13, where the Court stated, in essence, with regard to nationals who have exercised their free movement rights in another EEA State that a sufficient degree of integration should be established by taking into account such factors as the nationality of the student, his schooling, family, employment, language skills or the existence of other social and economic factors, as well as the employment of the family members on whom the student depends in the EEA State providing the benefit? In our opinion, the criteria for support for Norwegian nationals who have exercised their free movement rights are compatible with the mentioned judgments of the Court of Justice, and with other judgments. The objective criteria includes periods of schooling, family connections and language skills as mentioned by the Court of Justice. In addition to this, recent period of residence is included in the objective criteria. In other cases, it is recognized by the Court that residence is an appropriate measure which may make it more likely that the student will settle in the country and become integrated in its labor market after completing his of her studies 2. The nationality of the student, his or her employment or employment of family members on whom the student depends, are all factors which will be taken into consideration under the discretional assessment as described above. The Norwegian Government does not consider the examples from the Court of Justice in the mentioned cases as an exhaustive list of relevant factors. Other factors may also be decisive under the Norwegian regulation, e.g. regular holidays in Norway, whether the student or a family member owns property in Norway etc. As the Court stated in C-220/12 Thiele Meneses 3 and C-359/13 Martens 4, the Member States enjoy a broad discretion in deciding which criteria are to be used when assessing the extent of the connection with the society of the Member State concerned. 6. Would the student support be given under the Norwegian rules at issue in an analogous situation as the situation examined in judgment in B. Martens, C-359/13, where a national of an EEA State moves to another EEA State with his family to take up an employment there and, while being resident in that another EEA State, works in his State of nationality as a frontier worker for, in total, two years, and where his daughter who applies for support has not attended school in her State of nationality? Would the support be given if the national of an EEA State has not worked as a frontier worker in his State of nationality after having moved his 2 C-20/12 Giersch, paragraph 67 3 Paragraph 37 4 Paragraph 38 Page 4

5 residence to another EEA State? The question as we understand it regards a situation where a Norwegian national moves to another EEA State with his family and, while being resident in that another EEA State, works in Norway as a frontier worker for, in total, two years, and his daughter (a Norwegian national) who applies for support has not attended school in Norway. In this situation, the objective criteria for family members of frontier workers, or the general objective criteria (period of residence, school, family in Norway), are not fulfilled. Other factors which affect the actual connection to Norway in the individual case may, however, lead to a right to student support. Such factors may be regular holidays or other periods of stay in Norway, family ties, property in Norway or any other factor present in the individual case. If the parent has moved to another EEA State to take up employment there and has not worked as a frontier worker in Norway, the applicant is not considered a family member of a frontier worker in Norway. Right to student support will depend on the fulfillment of the objective criteria of prior residence, period of attending school in Norway, family connection, or of other factors of connection under the discretionary assessment. 7. For how long the student support is accorded if an applicant fulfils one of the criteria under the new rules, i. e. whether the support is accorded, for example, for one academic year or for the whole study programme? Student support is accorded for one academic year for all students, both in Norway and abroad, without regard to the grounds for the eligibility. Yours sincerely, Lars Petter Flåtten Deputy Director General Ellen Smogeli Senior Adviser This document has been signed electronically. Page 5