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.
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.
Posted by: Václav Žalud | June 11, 2010 at 02:53 PM
I have to agree with the above statement with EU restrictions on Citizens.
Posted by: Delivery Driver Jobs | June 29, 2010 at 07:45 AM
Social networking site for Lawers, and Students preparing for Law exams
Posted by: hebrew | July 05, 2010 at 05:15 AM
HelloLaw.net: Social networking site for Lawers, and Students preparing for Law exams
Posted by: hellogate | July 20, 2010 at 05:21 AM
Looks like some progress is likely to be made!
Posted by: iTunes Generator | July 23, 2010 at 02:20 PM
I agree we need restrictions on this to stop such immigration
Posted by: Van Driver Jobs | July 28, 2010 at 02:17 PM
The rules need to be tougher hopefully this can happen
Posted by: clear plastic plates | August 02, 2010 at 05:33 AM
These laws need to change
Posted by: front fastening bra | August 23, 2010 at 10:58 AM
I think this is a great post. One thing that I find the most helpful is number five. Sometimes when I write, I just let the flow of the words and information come out so much that I loose the purpose. It’s only after editing when I realize what I’ve done.
Posted by: nike air max | August 29, 2010 at 08:34 PM
The real issue is will we all be here in 2012?
Posted by: Flymo Lawn Mowers | September 12, 2010 at 11:53 AM
Table is a history of over next-generation etermal gifts and all the quality and provides much-needed juicy couture to encourage and support the varieties of update juicy couture outlet. If we go shopping, or for that matter, I doubt you surf the Internet million millions of juicy couture handbags, not to mention a web page, all the necessary information, these almost forgotten project. No matter what happens, you won't be disappointed, because your juicy couture bags will reveal some of the most popular items have disappeared, from your daily life.
Posted by: juicy couture | September 12, 2010 at 10:56 PM
Lots of great information and inspiration, both of which we all need!b Keep 'em coming... you all do such a great job at such Concepts... can't tell you how much I, for one appreciate all you do!
Posted by: gucci belts | September 14, 2010 at 12:40 AM
you get to that position where you have it so you can throw
Posted by: new louis vuitton belt | September 28, 2010 at 08:18 AM
Getting jobs currently make the economy hard for the medium and poor classes
Posted by: Office Manager Jobs | October 10, 2010 at 08:36 AM
there is a lot of high paid jobs in the UK but I find that even if you have the skills and experience there is hundreds if not thousands looking for the same jobs
Posted by: Data Entry Job | October 10, 2010 at 08:38 AM
Great article. I have to use more of these ideas. Thanks.
Posted by: ghd | October 11, 2010 at 02:28 AM
took me a while to browse all the comments, but I really enjoyed the subject that you chose. It looked to be very helpful to me and I am sure to all the other people who have looked at this blog, It's always nice when your not only informed, but your also entertained! I'm positive you had fun writing this article. I'm going to grab your rss feed so I don't miss anything important that you guys may come up with in the future, Thanks..
Posted by: Business Promotion | October 14, 2010 at 03:10 AM
Hiya. Thanks for all the information. On a side note, how do you deal with all the spam you get on your website? My recent blog is getting attacked by random spammers and I have been spending a lot of time removing comments its simply not funny. . I get so exhaused combating spam that I feed I need to stop blogging completely.
Posted by: Business Promotion | October 16, 2010 at 07:49 AM
good stuff is taking place. i completely keep right here for method too long. your website is great! do not let anybody try to say otherwise!
Posted by: Online Marketing | October 20, 2010 at 03:19 AM
i liked the submit, i by no means discover exactly what i want, i'm looking out more particular particulars, i hope you possibly can make a second half
Posted by: Vitamins And Minerals | October 22, 2010 at 04:49 AM
imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden,
Posted by: ugg | October 24, 2010 at 06:54 PM
All I am New, I have been looking around this board for about a few hours as a guest. I found it extremely and it has helped out allot. I hope to hang around for abit and contribute.
Posted by: Internet Marketing | October 25, 2010 at 02:30 AM
Youve got style, class, bravado. I mean it. Please keep it up because without the internet is definitely lacking in intelligence.
Posted by: cheap wholesale clothing | October 25, 2010 at 06:04 AM
hey, nice blog and good submit, simply an recommendation, make it more personal, it's at all times more fascinating!
Posted by: Internet Marketing | October 27, 2010 at 04:12 AM
Finally, the report states 60% find it easier to locate “knowledge” on the Web than on internal systems. I used to ask this question when I spoke on social media and knowledge management and I never found a single audience member who said it was easier to find content within their organization than on the Web.
Posted by: Microsoft Office 2007 | October 27, 2010 at 06:53 PM