Students, Free Movement, Discrimination and Restrictions: Case C-73/08

The Court of Justice has handed down an important and interesting judgment on the right of a member State to restrict the number of students coming from other member States. In its judgment in Case C-73/08 Nicolas Bressol and others v. Gouvernement de la Communauté française the Court held that a member State could restrict the number of students from other member States enrolling in certain medical and paramedical courses if such a restriction was justified in order to protect public health. In so doing the Court seems to back-track a bit on its previous case law on the free movement of students.

Here's the story. Belgium has an odd system which divides responsibility within the state for education between the "Flemish community" and the "French community". The French community, which provided well regarded higher education courses attractive to students from France, saw a significant increase in the number of students from other member States, in particular France, enrolling in its institutions of higher education, in particular in nine medical or paramedical courses. The French Community considered that too many students from France were attending classes in Belgium and adopted the decree of June 16 2006. That decree obliged universities and schools of higher education to limit the number of students not considered as resident in Belgium who may register for the first time in one of the over-subscribed nine medical or paramedical courses. The decree limits the total number of non-resident students, for each university and for each course, to 30 % of all enrollments in the preceding academic year. Once that percentage has been reached, the non-resident students are selected, with a view to their registration, by drawing lots.

A group of students sought annulment of the decree in the Belgian Constitutional Court. That Court referred a number of question to the Court of Justice for a preliminary ruling on the compatibility of the decree with EU law.

The Belgian court asked first whether EU law precludes legislation of a Member State which restricts the number of non-resident students who may enroll for the first time in medical and paramedical courses at higher education establishments, where that member State faces an influx of students from a neighboring member State and where the result of that situation is that too few students resident in the first member State graduate from those courses.

The Court of Justice held that Articles 18 and 21 TFEU preclude national legislation, such as that at issue in the main proceedings, which limits the number of non-resident students who may enroll for the first time in medical and paramedical courses at higher education establishments, unless - and this is the important bit - the referring court, having assessed all the relevant evidence submitted by the competent authorities, finds that that legislation is justified in the light of the objective of protection of public health.

The Court began by recalling that EU law allows the member States the power to organize their education systems and of vocational training – pursuant to Articles 165(1) and 166(1) TFEU – as they please But they must, when exercising that power, comply with EU law, in particular the provisions on the freedom to move and reside within the territory of the member States (Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I‑6849, paragraph 70, and Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I‑9161, paragraph 24). Thus the states are free to opt for an education system based on free access – without restriction on the number of students who may register – or for a system based on controlled access in which the students are selected. However, where they opt for one of those systems or for a combination of them, the rules of the chosen system must comply with European Union law and, in particular, the principle of non-discrimination on grounds of nationality.

The Court then continued by recalling the applicable provisions of the Treaty. Article 21(1) TFEU provides that every citizen of the Union shall have 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. Also, the Court’s case-law makes clear that every citizen of the Union may rely on Article 18 TFEU, which prohibits any discrimination on grounds of nationality, in all situations falling within the scope of EU law, those situations including the exercise of the freedom conferred by Article 21 TFEU to move and reside within the territory of the Member States (Case C-148/02 Garcia Avello [2003] ECR I‑11613, paragraph 24; Case C‑209/03 Bidar [2005] ECR I‑2119, paragraphs 32 and 33; and Case C‑158/07 Förster [2008] ECR I‑8507, paragraphs 36 and 37). Clearly, the prohibition of discrimination also covers situations concerning the conditions of access to vocational training, and that both higher education and university education constitute vocational training (Case C‑147/03 Commission v Austria [2005] ECR I-5969, paragraphs 32 and 33).

Consequently, the students in question in the main proceedings may rely on the right, enshrined in Articles 18 and 21 TFEU, to move and reside freely within the territory of a Member State, such as the Kingdom of Belgium, without being subject to direct or indirect discrimination on ground of their nationality.

Did the Belgian decree discriminate against the non Belgian residents ?

The Court confirmed that the non resident students were in fact discriminated against. The Court recalled that unless objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect nationals of other member States more than nationals of the host State and there is a consequent risk that it will place the former at a particular disadvantage (Case C-195/98 Österreichischer Gewerkschaftsbund [2000] ECR I-10497, paragraph 40). In the cases in the main proceedings, the decree of June 16 2006 provides that unrestricted access to the medical and paramedical courses covered by that decree is available only to resident students, that is those who satisfy both the requirement that their principal residence be in Belgium. The students who do not satisfy those conditions, by contrast, enjoy only restricted access to those institutions, since the total number of those students is in principle limited, for each university institution and for each course, to 30% of all enrollments in the preceding academic year. Once that percentage has been reached, the non-resident students are selected, with a view to their registration, by drawing lots.

But was the discrimination justified?

The Court recalled that to be justified, the measure concerned must be appropriate for securing the attainment of the legitimate objective it pursues and must not go beyond what is necessary to attain it (Case C-527/06 Renneberg [2008] ECR I‑7735, paragraph 81, and Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I-0000, paragraph 25).

The Court found that the discriminatory measure was not justified by the need to reduce an excessive burden on the educational system. It also found that the justification advanced relating to the homogeneity of the system was in this case the same as that relating to the need to preserve the quality of the health system provided in the French Community. The Belgian government submitted that it was impossible to increase the total number of students taking the courses concerned and that the non resident are likely to return to their home states thus causing a shortage of qualified practitioners in Belgium.

The Court held that hat a difference in treatment based indirectly on nationality may be justified by the objective of maintaining a balanced high-quality medical service open to all, in so far as it contributes to achieving a high level of protection of health (Case C-169/07 Hartlauer [2009] ECR I-0000, paragraph 47). It stated as a matter of principle that it is for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent such legislation satisfies those conditions (Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 15, and Joined Cases C-4/02 and C-5/02 Schönheit and Becker [2003] ECR I‑12575, paragraph 82).

In order to assist the referring court, the Court of Justice noted that it cannot be ruled out that a reduction in the quality of training of future health professionals may ultimately impair the quality of care provided in the territory concerned, since the quality of the medical or paramedical service within a given area depends on the competence of the health professionals who carry out their activity there. It also cannot be ruled out that a limitation of the total number of students in the courses concerned – in particular with a view to ensuring the quality of training – may reduce, proportionately, the number of graduates prepared in the future to ensure the availability of the service in the territory concerned, which could then have an effect on the level of public health protection. A shortage of health professionals would cause serious problems for the protection of public health and that the prevention of that risk requires that a sufficient number of graduates establish themselves in that territory in order to carry out there one of the medical or paramedical occupations covered by the decree at issue in the main proceedings.

Consequently, the Court of Justice leaves it open to the national court to find that the discrimination can be justified relatively easily in this case and uphold the decree in question. In doing so, the Court seems more liberal than in its previous case law, presumably because the university courses lead to qualifications for health professionals.

One final and interesting point. The Court of Justice considered the preliminary reference in the light of primary, Treaty law. But it did also consider whether Directive 2004/38 of April 29 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory applied.

It held that it cannot be ruled out that the situation of some of the applicants in the main proceedings may be covered by Article 24(1) of Directive 2004/38, which applies to every citizen who resides in the territory of the host Member State in accordance with that directive for four reasons:
- first, the students in question in the main proceedings are citizens of the Union;
- second, the fact that they do not exercise any economic activity in Belgium is irrelevant, since Directive 2004/38 applies to all citizens of the Union irrespective of whether they exercise an economic activity as an employee or as a self-employed person in the territory of another Member State or whether they do not exercise any economic activity there;
- third, it cannot be ruled out that some of the applicants concerned in the main proceedings already resided in Belgium before deciding that they would like to enrol in one of the courses concerned,
- fourth, Directive 2004/38 applies ratione temporis to the cases in the main proceedings. The member States were obliged, first, to implement that directive before April30 2006. Second, the decree at issue in the main proceedings was adopted after that date, on 16 June 2006. In addition, it is common ground that the students in question in the main proceedings applied for enrollment in the institutions of higher education concerned for the academic year 2006/07, and that their enrollment was refused on the basis of that decree. Their request must therefore have been refused after April 30 2006.

However, as the Court was not in possession of all the facts which would enable it to hold that the situation of the applicants in the main proceedings also falls within Article 24(1) of Directive 2004/38, it held that it is for the referring Belgian court to assess whether that provision actually applies in the cases in the main proceedings.

Comments

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I would be very interested in getting to know whether the referring court eventually justifies the restriction in the light of the objective of protection of public health. For me it seems that Belgian arguments are a little bit exaggerated. I would really like to see, how many French students who studied in Belgium actually go back to France to work and further how much this amount actually impairs the Belgium national healthcare system.

The judgment is interesting, because it is one of the few cases where the restriction on free movement of EU citizens could be justified. But since the Belgian rule seems to be prima facie indirect discrimination, the proportionality test should be, in my opinion, relatively strict.

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