C-152/82

the BELGIAN STATE, represented b y t h e Minister of N a t i o n a l E d u c a t i o n a n d French C u l t u r e ,

and

ASBL INSTITUT SUPÉRIEUR D E SCIENCES HUMAINES APPLIQUÉES — ECOLE OUVRIÈRE SUPÉRIEURE [ H i g h e r Institute of Applied Social Sciences — H i g h e r School of L a b o u r Studies], Anderlecht,

on t h e interpretation of Articles 7 a n d 48 of t h e T r e a t y , R e g u l a t i o n N o 1612/68 of t h e Council of 15 O c t o b e r 1968 o n freedom of m o v e m e n t for workers within t h e C o m m u n i t y (Official J o u r n a l , English Special Edition 1968 (II), p . 475) a n d Articles 12 a n d 13 of the P r o t o c o l o n t h e Privileges and Immunities of the E u r o p e a n Communities,

FORCHERI v BELGIUM

T H E C O U R T (Fourth C h a m b e r )

The detailed rules for applying the fee Mrs Forcheri, an Italian national, is the for foreign students in establishments of wife of an official of the Commission of further education such as the above- the European Communities working in mentioned Institut Supérieur are Brussels. She attended a course of in- determined by circulars from the struction for three years at the Institut Ministry of National Education. Ac- Supérieur de Sciences Humaines Ap- cording to a circular of 8 June 1978 in pliquées, Brussels, which mostly trains its force at the material time the fee for students to become social workers. When foreign students was not required from she enrolled at the beginning of the Belgian, Luxembourg and (subject to 1979/80 and 1980/81 academic years certain conditions, in particular coming Mrs Forcheri had to pay an additional from frontier areas) French students or enrolment fee described as "fee for from the children of foreign workers foreign students". resident in Belgium, foreign officials

JUDGMENT OF 13. 7. 1983 — CASE 152/82

For the 1979/80 academic year the fee for foreign students at the École Ouvrière Supérieure amounted to BFR 19 995 which was added to the BFR 6 000 required from all students as 1. In view in particular of the principle academic fees. For 1980/81 it amounted of non-discrimination between to BFR 21 723. At the beginning of the nationals of Member States of the 1979/80 and 1980/81 academic years the European Cummunity, a principle Institut Supérieur de Sciences Humaines embodied inter alia in Article 7 of the Appliquées took the view that Mrs EEC Treaty and, in the context of Forcheri came into none of the classes of freedom of movement for workers, in students exempt from the fee for foreign Articles 48 and 49 of the EEC Treaty, students pursuant to the circulars in of Article 12 of Regulation (EEC) N o force and required her to pay the fee. 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) N o 312/76 of 9 February 1976, and of Article 12 of the Proto- col on the Privileges and Immunities of the European Communities, is it By letter dated 7 May 1980 in answer to lawful under Community law for a request from Mr Forcheri for an expla- students who are spouses of officials nation the private office of the Minister of the European Communities, are for National Education stated that Mrs nationals of a Member State and Forcheri could not enjoy exemption from reside in Belgium because their the fee for foreign students as the wife of spouses must reside there by reason of an official of the European Communities their employment by one of the since that privilege was granted only in institutions of the European cases where the student's spouse was in Communities to be required in paid employment and paid taxes to the Belgium to pay the enrolment fee for Belgian Treasury which was not the foreign students, when Belgian and case for officials of the European Luxembourg students are not subject Communities. to that requirement?

II — W r i t t e n o b s e r v a t i o n s sub- It should be remembered that Article 12 mitted to the C o u r t of Regulation No 1612/68 of the Council on freedom of movement for workers provides that: "The children of a national of a Member State who is or /. Observations submitted by Mr and Mrs has been employed in the territory of Forcheri another Member State shall be admitted to that State's general educational, apprenticeship and vocational training The plaintiffs in the main action contend courses under the same conditions as the that according to Community law it is nationals of that State, if such children unlawful to claim in Belgium payment of are residing in its territory." the fee for foreign students, to which Belgian and Luxembourg students are not subject, from students who, like The judgment making the reference Mrs Forcheri, are the spouses of officials was received at the Court Registry on of the European Communities, are 14 May 1982. nationals of a Member State and live in Belgium because their spouses must live there for their work in the service of the In accordance with Article 20 of the Communities. The requirement is in Protocol on the Statute of the Court of breach inter alia of the principle of non- Justice of the EEC written observations discrimination between nationals of were lodged on 23 July 1982 by Member States, contained in particular the Commission of the European Com- in Article 7 of the Treaty and, in the munities, represented by Claire Durand, sphere of free movement of workers, in a member of its Legal Department, Articles 48 and 49 of the Treaty and acting as Agent, on 30 July 1982 by Mr Article 12 of Regulation No 1612/68 of and Mrs Forcheri, assisted and the Council. represented by Edmond Lebrun of the Brussels Bar, and on 25 August 1982 by the Italian Republic, represented and According to the plaintiffs in the main assisted by Oscar Fiumara of the action freedom of movement, which is Avvocatura Generale dello Stato. an aspect of the principle of non-discrimi- nation, requires, as the preamble to the said regulation states, that obstacles to Upon hearing the report of the Judge- the mobility of workers should be Rapporteur and the views of the eliminated "in particular as regards the

worker's right to be joined by his family at issue also disregards the provisions of and the conditions for the integration of Article 12 of the Protocol on 'the that family into the host country." The Privileges and Immunities and that fee for foreign students is an obstacle to Luxembourg students are exempt from the integration into Belgium of the the fee for foreign students albeit family of a worker who is a national of a discrimination between the nationals of Member State of the Community and the various Member States is unlawful resides in Belgium. That is a fortiori the under Community law. case where the fee is demanded of the spouse of an official of the Communities who is bound by the terms of the Staff Regulations to live where he works or within such distance that he is not Alternatively the plaintiffs in the main impeded in carrying out his duties. action claim that the refusal to grant exemption from the fee on the basis that Mr Forcheri as an official of the European Communities does not pay taxes to the Belgian Treasury disregards Article 12 of Regulation No 1612/68 the second paragraph of Article 13 of mentions only the children of a national the Protocol on the Privileges and of a Member State but there is no doubt Immunities. According to that provision that the scope ratione materiae must be officials and other servants of the extended to all members of the family of Communities are exempt from national a worker who are students and in taxes on salaries, wages and emoluments particular to the spouse since the ratio paid by the Communities. Accordingly it legis is the integration of the family of would be a breach of that provision to the immigrant worker into the host deprive the spouse of a European official country in accordance with the of a benefit simply because the official requirements of the basic principle of does not pay national taxes on his non-discrimination between nationals of remuneration. the Member States. The Court has, moreover, already given a wide interpre- tation to Article 12 (Cases 9/74 Casa- grande [1974] ECR 773 and 32/75 Cristini [1975] ECR 1085). In addition, according to a report from the 2. Observations submitted by the Italian Committee on Education adopted by the Government Council on 27 June 1980, where enrolment fees are required in a Member State students from other countries of the Community cannot be charged more than the students from the Member State The Italian Government does not doubt in question (cf. Official Journal C 316, that Article 12 of Regulation No 3. 12. 1980, Commission's answer to 1612/68 must also apply to the spouse of Written Question No 1248/80 from the worker. In Case 76/72 Michel S. Mr Seal). [1973] ECR 457 the Court held that the scope of that article extended to measures in relation to the education of the handicapped although they were not specifically referred to there, since the Ex abundanti cautela the plaintiffs in the article did not exhaustively list all cases main action observe that the requirement which might arise but must be inter-

preted in a broad sense and in the light resources makes it impossible to contem- of the considerations which led to the plate discrimination to the detriment of adoption of the regulation, especially the Community officials resulting directly need referred to in the fifth recital to from the fact that they are not required ensure conditions for the integration of to contribute to national public expenses. the worker's family into the host In view of the choice between national country. and Community taxation and of the obligation to avoid double taxation the second was chosen in order to ensure greater independence for officials of the Communities. Even though the Community legislature may not, when drafting the regulation in question, have thought of the position of officials of the Communities, the Italian Government considers that the same principles and the same provisions in the 3. Observations submitted by the Com- regulation must be applied to persons mission working for the Communities, especially if they are Community nationals; they clearly are in paid employment in the territory of a Member State in accordance with the Community rules As a preliminary the Commission states which as such are directly applicable in that on 22 September 1978 it sent the the territory of the State in question. It is Council (Document COM(78) 468 final) moreover unacceptable that European a number of proposals for the officials should be placed in a less elimination of obstacles to the mobility favourable position than that of any of students at university level, one of other employed person who is a national which concerned a restriction on the of a Member State. Equality of treat- number of admissions. As regards the ment, which derives directly from the financial aspects of that question the general principle of Anicie 7 of the proposal was to the effect that where Treaty even independently and outside fees for study were required in a the scope of Regulation No 1612/68 is a Member State, fees which students from logical and inescapable premise of other countries of the Community were the Protocol on the Privileges and required to pay must not be higher than Immunities which in consequence is those applicable in the case of national confined (in Article 12 et seq.) to laying students. down certain rules regarding officials and servants of the Communities with the object of confirming their inde- pendence and mobility and governing certain special aspects of their position. In its resolution of 27 June 1980 with reference to the Commission's proposal the Council introduced a reservation with regard to the principle of equality as regards the financial aspects, to the effect that in cases where measures The doubt expressed in the second restricting numbers or other factors question put by the national court is cause a substantial disequilibrium in the incomprehensible. The position of the movement of students a Member State Communities in relation to the national may take appropriate measures to ensure legal systems and their system of that the effects of this disequilibrium

Article 12 of the Protocol on the Privileges and Immunities, which provides that: "In the territory of each Member State and whatever their nationality, officials and other servants of the Communities s h a l l . . . (b) together with their spouses and dependent The Commission observes that the members of their families, not be subject conditions for integration of the family to immigration restrictions or to into the society of the host country formalities for the registration of aliens", involve opportunities available not only covers two concepts which are re-echoed for the children of the worker, as several times in Community law: that of expressly stated in Article 12 of Regu- the family unit and the principle of the lation No 1612/68, but also for the recruitment of officials on the widest spouse accompanying the worker, to geographical basis. The question must acquire or perfect training in a career. therefore arise whether in particular the The conditions for access to education conditions for integrating an official's available for the spouse in another family into the Member State where he is Member State may easily lead the required to reside are not likely to affect worker to forego employment in another the freedom of the Communities to Member State or to decide to leave such choose and recruit officials on the widest employment to return to his country of possible geographical basis and more origin! They may therefore constitute an particularly whether conditions for obstacle to mobility should they be admission to educational facilities for discriminatory. members of the family of the official and

which are discriminatory on the basis of nationality or fiscal domicile" (Case nationality are not likely to restrict 32/67 Van Leeuwen [1968] ECR 43). the number of potential candidates Although it is true that Community according to country and even to affect officials do not contribute to the general the stability of the staff of the budget of the State in which their place Communities. Such a measure would of employment is situated on the same create moreover an appreciable differ- terms and to the same extent as other ence in treatment contrary to the taxpayers of the same State the reason is principle of equality of treatment of that it would have seemed wrong that officials. because of the presence of the institutions the host country should draw unjustified revenue from charging taxes on salaries paid to officials by the said institutions from contributions paid by all the Member States. That does not however mean that the officials of the Communities do not contribute to the As Case 208/80, Lord Bruce of general budget of the host State. Donington [1981] ECR 2205 establishes, Indirectly through the intermediary of the obligation imposed on Member taxes paid by the officials to the States by Article 5 of the Treaty to Communities and directly by their facilitate the achievement of the presence on the territory of that country Community's tasks "includes the duty they in fact contribute to the revenue of not to take measures which are likely to the State. interfere with the internal functioning of the institutions of the Community". Further, even though educational policy is not as such within the area covered by the Treaty, the principle of non-dis- crimination embodied in Article 7 of the Treaty may be applied to a measure relating thereto when the issue is the Moreover it is right to observe that the exercise of Community functions, in the measure in question in the present case present case the very running of the does not subject women of Belgian or institutions. Luxembourg nationality who are wives of officials working in Belgium to the fee for foreign students. However, their husbands contribute to the general budget of the Belgian State to the same extent as the officials whose wives are not of one of those two nationalities but who are subject to the fee; nor do those As regards the second question the officials pay national taxes on their Commission refers in the first place salaries. The Commission also recalls to the objective of Article 13 of the that notwithstanding that tax exemption Protocol which is to ensure uniform the children of officials living in Belgium taxation of officials' salaries and to have been exempt from the fee for guarantee the right of the institutions foreign students since the measure was to determine, -uniformly the effective brought in. Those considerations in the amounts of salaries. The provision Commission's view allows it to be said indeed prevents "their effective remuner- that the argument based on the tax ation from differing according to their exemption laid down in Article 13 does

FORCHERI v BELGIUM

Belgium, was in paid employment there and paid taxes to the Belgian Treasury. It must however be observed that for the 1981/82 academic year a circular of 12 May 1981 accords the spouse, and no longer only the children, of an official of the Communities resident in Belgium the same treatment as students of Belgian nationality.

4 Upon a request for an explanation from the Minister for National Education Mrs Forcheri's husband received an answer by letter dated 7 May 1980 to the effect that Mrs Forcheri could not "enjoy exemption from the fee for foreign students as the wife of an official of the European Communities since that privilege was granted only in cases where the student's spouse was in paid employment and paid taxes to the Belgian Treasury which is not the case for officials of the European Communities".

5 The plaintiffs in the main action brought the matter before the Juge de Paix of the Fourth Canton of Brussels who took the view that the case involved problems of the interpretation of Community law and referred the following questions to the Court of Justice for a preliminary ruling:

7 It must be remembered first of all that Article 7 of the Treaty prohibits within the scope of application of the Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality.

s it is not denied in this case that the Belgian rules lay down in connection with this matter different treatment for Belgian nationals and the nationals of other Member States. The national court is therefore asking whether in the case of the spouse of an official of the Community who is not of Belgian or Luxembourg nationality the payment of the enrolment fee falls "within the scope of application" of the Treaty and if so whether the fact that officials of the Community working in Belgium are exempt from payment of taxes to the Belgian State may be relevant in that respect.

9 In answer to that question it must be observed that the legal position of officials of the Community in the Member States in which they are employed comes within the scope of the Treaty on a dual basis by reason of their post with the Community and because they must enjoy all the benefits flowing from Community law for the nationals of Member States in relation to freedom of movement, freedom of establishment and social security.

FORCHERI v BELGIUM

io Article 48 of the Treaty provides that freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. It entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

JUDGMENT OF 13. 7. 1983 — CASE 152/82

is In application of that provision the Council of the EEC adopted Decision No 63/266 of 2 April 1963 laying down general principles for implementing a common vocational training policy (Official Journal, English Special Edition 1963/64 p. 25). The recitals to that decision state, inter alia, that implementation of an effective common vocational training policy will help to bring about freedom of movement for workers and that every person should, during the different stages of his working life, be able to receive adequate basic and advanced training, and any necessary vocational re-training.

ie According to the second principle stated in the decision, the common vocational training policy must have certain fundamental objectives which are inter alia, to bring about conditions which will guarantee adequate vocational training for all and to offer to every person, according to his inclinations and capabilities, working knowledge and experience, the oppor- tunity to gain promotion or to receive instruction for a new and higher level of activity.

i7 It follows that although it is true that educational and vocational training policy is not as such part of the areas which the Treaty has allotted to the competence of the Community institutions, the opportunity for such kinds ot instruction falls within the scope of the Treaty.

is Consequently if a Member State organizes educational courses relating in particular to vocational training, to require of a national of another Member State lawfully established in the first Member State an enrolment fee which is not required of its own nationals in order to take part in such courses constitutes discrimination by reason of nationality, which is prohibited by Article 7 of the Treaty.

T H E COURT (Fourth Chamber),

in answer to the questions referred to it by the Juge de Paix of the Fourth Canton of Brussels by judgment of 11 December 1981, hereby rules:

If a Member State organizes educational courses relating in particular to vocational training, to require of a national of another Member State lawfully established in the first Member State an enrolment fee which is

OPINION OF MRS ROZĒS — CASE 152/82

not required of its own nationals in order to take part in such courses constitutes discrimination by reason of nationality, which is prohibited by Article 7 of the Treaty.

O'Keeffe Pescatore Bosco Koopmans Bahlmann