C-293/85

OPINION OF SIR GORDON SLYNN —CASE 293/85

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 17 September 1987

My Lordi, delivered on 13 February 1985, the Court held that:

The Court has before it five cases which in one form or another raise the question of the compatibility of charging fees for students from one Member State in respect '(1) The imposition on students who are of education in another Member State and nationals of other Member States of a of the entitlement of students to the charge, or registration fee or the payment of those fees and maintenance so-called "minervai" as a condition of grants. It seemed to me at the least prudent access to vocational training, where the to defer giving my Opinions until all five same fee is not imposed on students cases had been argued. Three of those cases, who are nationals of the host Member the present one and Cases 309/85 Barra v State, constitutes discrimination on Belgian State and City of Liège and 24/86 grounds of nationality contrary to Blaizot v University of Liège and Others are Article 7 of the Treaty. concerned with provisions of Belgian law.

students to be taken into account for the August 1985 and a Royal Decree of 30 purposes of the central Government's August 1985. financial contribution to the universities comprise Belgian and Luxembourg nationals, non-Belgians whose parents or guardians are domiciled or resident in Belgium and carry on their main occupation there, students and residents in Belgium The first aspect of the 1985 Law which is whose parents or guardian are or have been relevant concerned only university students. employed in Belgium and are EEC Article 16(1) added to the list of students to nationals, and other foreign students except be taken into account for the purposes of those from certain developing countries and the central Government's financial contri­ those referred to in paragraph 4 of the bution to the universities those EEC article, provided that they did not exceed nationals duly established in Belgium who 2 % of the total number of Belgian students were pursuing or who had pursued an occu­ taken into account for the previous pation there, together with their spouses. academic year. This was to give effect to the Court's decision in Case 152/82 Forchen v Belgium [1983] ECR 2323, where it was held unlawful to require an enrolment fee to be paid by the wife of a Community official resident in Belgium when such a fee was not required of Belgian students. That Paragraph 4 as amended provided that provision, by Article 69, was deemed to foreign students other than those mentioned have come into force on 1 October 1983, in paragraph 3 should contribute to the cost i. e. shortly after the Forchen judgment. It of functioning of the universities and would did not, however, add other EEC nationals not be taken into account for the purpose of studying in universities. Article 16 (2), on fixing the number of certain personnel at the contrary, gave to university rectors the the university unless they had paid a further power for the academic year beginning in registration fee equal to at least 50 % of the 1985 to refuse to register students not taken cost fixed as prescribed. Thus, if the fees into account for central Government were not paid, universities would not receive funding purposes. A right of appeal was money in respect of the salaries of those given against refusals to register but only if specified personnel. By Royal Decree of 30 the refusal came from a State, not a free December 1982 universities were authorized university. to require that foreign students other than those specified in Article 27 (3) of the 1971 Law as amended pay a further registration fee in an amount not exceeding 50 % of the cost fixed as prescribed. The second aspect covers other types of education in Belgium, namely pre-school, primary, secondary, special and non- university higher education. Article 59 (1) of the 1985 Law provides that foreign students in these categories whose parents or On 21 June 1985 a law concerning guardians are not Belgian and do not reside education was enacted in Belgium and in Belgium shall pay the enrolment fee. detailed application of the 1985 Law was Article 59 (2) excepts from the scope of the provided for in ministerial circulars of 20 first paragraph such students who have been

Having written to the Belgian Government on 17 July 1985, and having, in the absence of a substantive reply, issued a reasoned opinion under Article 169 of the Treaty The 1980 Law regulates the entry, without receiving any reply, the residence, establishment and expulsion of Commission lodged the present application foreigners. Article 10 provides that 'the on 2 October 1985 for a declaration that foreign national whose right of residence is Belgium was in breach of its obligations recognized by international treaty, by law under Articles 5 and 7 of the Treaty by or by royal decree' shall be permitted to reason of certain of the measures which it stay in Belgium for more than three months. had adopted. By virtue of Articles 58 and 59 of the 1980 Law, a person applying for such a permit in order to study must submit, together with other certificates, proof that he has registered with a Belgian educational estab­ lishment and that he has adequate means of The Commission considers that these support. provisions infringe Articles 5 and 7 of the Treaty in five respects. First, EEC nationals (other than Luxembourg nationals) who come to Belgium for the sole purpose of studying in Belgian universities ('Community students') should be exempt By Article 71 of the 1985 Law, Article 59 from the enrolment fee but are not included (1) was brought into force retroactively to 1 in the categories added to Article 27 (3) of September 1976 and Article 59 (2) to 1 the 1970 Law by Article 16 of the 1985 January 1985. Law. Second, the power of rectors to refuse to register Community students who do not count for central funding constitutes an illicit restriction on their access to university education. Third, although Article 59 of the 1985 Law purports to exempt Community Thirdly, Article 63 of the 1985 Law nationals from paying the enrolment fee if provided that enrolment fees charged they come to Belgium for the sole purpose between 1 September 1976 and 31 of following a non-university higher December 1984 would in no event be reim­ education course, it is impossible for them bursed, subject to one important proviso: to obtain that exemption in practice since such fees 'charged to pupils and students the residence permit referred to in Article 59 who are nationals of another Member State (2) can only be obtained on production of a of the European Community and have certificate of registration for such a course which will only be granted if they pay the taken vocational training courses will be enrolment fee. Fourth, the requirement that refunded on the basis of judicial decisions they demonstrate adequate means of made in proceedings for repayment brought support under Article 59 (2) also before the courts before 13 February 1985',

contravenes those Articles of the Treaty. minerval'. I shall refer to it simply as 'the Fifthly, and finally, Belgium has minerval'. contravened Articles 5 and 7 by restricting the right to claim repayment of the enrolment fee, the restriction resulting from a combination of Article 63 requiring claims to have been brought by Community The Kingdom of Belgium argues first that nationals before 13 February 1985 and the Commission's application is inadmissible Articles 69 and 71 providing for the since the necessary procedural requirements exemptions conferred upon Community were not observed in the course of the workers and their spouses, on the one hand, proceedings under Article 169. and Community students coming to Belgium for the sole purpose of following the type of course specified in Article 59, on the other, to enter into force on 1 October 1983 and 1 January 1985 respectively. It argues that it is unacceptable for the Commission to lay down an eight-day period for reply to its letter of 17 July 1985, not to reply to Belgium's telex of 2 August 1985 requesting an extension of that period At the same time as it lodged the main and to issue its reasoned opinion, without application it sought interim measures, further consultation, demanding that the eventually limited to access to vocational measures complained of should be with­ training offered by Belgian universities. On drawn within 15 days. The shortness of the footing that it could not be ruled out these periods, it is said, is rendered less that Article 7 of the EEC Treaty covered tolerable when it is borne in mind that the vocational training offered by universities minerval had been in existence for several and that students would suffer irreparable years, that what was required was a harm if they were excluded because they complete reversal of Belgian educational could not pay the enrolment fee, Belgium policy and that the decision in Gravier was was required, by an Order of the President a totally new development in Community of the Court dated 25 October 1985, to law, since it recognized rights in respect of guarantee Community students access to persons who could not be regarded as econ­ vocational training offered by Belgian omically active. universities on the same terms as Belgian students so long as they undertook to pay the enrolment fee if the main action was decided against the Commission's contention in relation to that fee. It is also said that in two letters of 19 April 1984 and 28 November 1984 the Commission had accepted that the Belgian system was fully in conformity with Community law. I think that, although these As was made plain at the hearing, this case letters can be relied on to some extent, this is not concerned with the modest enrolment argument reads too much into the letters. fee paid by all students but only with the The first was limited to workers and the further fees required of foreign students. Commission expressed reservations about The Court was told that that is normally the fact that the proposed amendments to referred to as 'the foreign students' ministerial circulars did not cover general

There is undoubtedly force in these Further, it is plain that in the debate contentions. It is essential that Member preceding the enactment of the 1985 Law, States should have a proper opportunity to views were expressed that it was contrary to reply to criticisms before as well as after Community rules and the Conseil d'Etat proceedings are lodged under Article 169. itself was critical of the retroactivity of the measure in the light of the Court's decision in Gravier. At meetings between the Commission and Belgian officials on 25 June 1985 the Commission expressed its view that vocational training could cover The Commission was specifically asked by university courses and made certain the Court to explain in writing why these criticisms of the 1985 Law; at a meeting of short deadlines had been set and to the Education Committee of the Council on elaborate what it had said in its pleadings. 27 and 28 June 1985, at which Belgium was represented, there was a discussion of the Gravier case. Although the Commission's representative stated that the Commission had not yet completed its analysis of the effects of the Gravier judgment, Belgium Taking into account all the explanations must have known from the earlier meeting given, and all the circumstances which have that the Commission felt that vocational been relied on, I would for my part accept training could cover university courses.

COMMISSION / BELGIUM

The issue is thus whether, and if so, in what On the substance of the case the issues circumstances, vocational training within the canvassed to some extent arise in more meaning of Article 128 of the Treaty as concrete form in the Barra and Blaizot cases interpreted in Gravier can be undertaken in and I take the arguments in those cases into universities so that the undoubted discrimi­ account so far as relevant to the issues nation on the ground of nationality which which fall for consideration in the present constitutes a restriction on the access of case. Community students (other than Luxem-

OPINION OF SIR GORDON SLYNN — CASE 293/85

COMMISSION / BELGIUM

only in university curricula is in other and the Erasmus programme (Commission's Member States taught in other institutions proposal, Official Journal 1985, C 73, p. 4), of higher education which are not strictly as implemented by Council Decision categorized as universities. To distinguish by 87/327/EEC (Official Journal 1987, L institutions rather than by the nature of the 166/20) both of which are based on Article courses therefore seems to me to be unac­ 128 of the Treaty, take the matter much ceptable. further and plainly contemplate university courses.

OPINION OF SIR GORDON SLYNN — CASE 293/85

profession, trade or employment or provides ciency in subjects which would otherwise be the necessary training and skills for such a tested by a professional body and even if it profession, trade or employment'. covers some subjects not so required.

The essential task as I see it is to look at the I do not accept the argument advanced that course as a whole and to ask whether, in the a degree course can only be vocational first place, it provides a qualification training where it is an essential prerequisite recognized for admission to a particular to admission to a profession, though such a profession, trade or employment. If it does, requirement may be indicative that the that is enough for the course to qualify. course leading to the degree is vocational Thus, if in a particular Member State, a training. I consider that it would be right to degree in veterinary medicine, architecture accept that a course leading to a degree or pharmacy allows the holder to begin to which, though not formally a part of a practise (even though obviously he will for qualification, gives the necessary grounding years go on learning and acquiring skills to enable the student to obtain by exam­ which may make him a more proficient ination a formal qualification is vocational practitioner) that is clearly enough. training. It also seems to me that a course leading to a degree which is a condition of admission to a professional institution which awards further qualifications after practical experience is capable of being vocational training.

I have throughout referred to the nature of the course because it is that which has to be Whether such courses could be sufficient to considered. The intention of the particular constitute vocational training for teachers, student is not to my mind an appropriate particularly at university, was raised in test. A student taking the same course as argument. It may be that there are such Miss Gravier's would be following a course courses specifically designed to prepare for of vocational training even if, committed or a teaching qualification or to provide the doomed to a role in a family business, he skills and training for the students to teach was merely seeking four years of a culture the subject to others. If so such a course is which he found more immediately appealing capable of being vocational training. If it is than a course in Latin or philosophy. not so geared then to my mind such a Students may or may not know what they course is to be treated as general education want to do next, or they may change their rather than vocational training. minds after beginning a course. Whether they are following a course of vocational training is independent of their intentions.

In this context no distinction is to be drawn between the liberal professions and other trades or employments, nor between courses which usually lead to a contract of If this is the right approach, as I think it is, employment and those which prepare people there will be difficult cases, not least where to practise independently in the so-called students can amalgamate a wide range of liberal professions. To distinguish between courses, but since in my view it is not the liberal professions and others is unreal, possible to distinguish between institutions since many doctors, pharmacists, architects (here universities against other specialized and lawyers are employed under contracts institutions of higher education) the of employment just as are other workers. difficulty has to be faced, and the overall relevance of the course to a particular profession, trade or employment assessed.

training in universities, Belgium may not On this view of the first and second charge higher fees than those charged to questions, it is not necessary to review in Belgian nationals. detail Belgium's argument that the Commission's submissions on financing are inadmissible (which I reject, since they are the Commission's conclusions on the effect of the ruling it was hoping to obtain, rather than a separate ground) or that Article 16 (2) of the 1985 Law was aimed, not speci­ fically at Community students who refuse to pay the minervai, but at all students, Belgian or otherwise, who wish to repeat a year for the second time. I reject that argument also; Article 16 (2) certainly does cover, inter alia, Community students who refuse to pay the minervai in respect of vocational training courses at Belgian universities. To that extent, Article 16 (2) is incompatible with Community law. It follows in my view, in answer to the second ground of complaint, that it is wrong to refuse to register students who do not pay the minervai, and to the extent that Article 16 (2) empowers such an action it is in breach of Community law. If, however, the minervai is abolished, the discrimination complained of under both the first and the second heads in relation to the minervai will disappear. In so far as the Commission sought in its final arguments a wider order under the second ground of complaint, relating to the removal of all discrimination in the financing of students, I would not The third and fourth complaints relate to accept it. Gravier was stated expressly to Article 59 (2) of the 1985 Law which covers concern neither 'the organization of non-university students and, so far as education nor even its financing, but rather relevant, students in special and higher the establishment of a financial barrier to non-university education. The third access to education for foreign students complaint is that a residence permit valid for only' (paragraph 18): 'education organ­ more than three months is not issued to the ization and policy are not as such included Community student seeking to undertake in those spheres which the Treaty has vocational training unless he has registered entrusted to the Community organizations'. for a course. When he applies to register, he In any event, central funding by Member will only be exempted from paying the States of education poses much broader minervai (which is payable in full at regis­ issues. On a more particular matter I remain tration) if he has a residence permit. Since of the view provisionally expressed in my he cannot have a residence permit until he Opinion in Gravier that maintenance grants has registered for a course he must pay the to enable students to live while studying are minervai. The fourth complaint is that when on a different footing, if indeed a refusal of he applies for a residence permit he must such a grant can be properly categorized as show that he has sufficient means to support a barrier to access to vocational training. himself (set at BFR 12 000 per month)

which is a condition not imposed on Belgian minerval, unless he has a residence permit, students. so that the vicious circle is once again complete. It is said in reply that the Community student can stay in Belgium for three months during which time he can Article59 (2) of the 1985 Law clearly register and then obtain a long residence exempts from the minerval foreign students permit. admitted to stay for more than three months or to become established in Belgium pursuant to Articles 10 and 15 of the 1980 Law as amended by the 1984 Law. Article To the extent that registration and the right 10 gives a right to stay more than three of residence are by Belgian law dependent months to those foreigners whose right is on payment of the minerval, it seems to me recognized by law or by royal decree. By that the Belgian rules are in conflict with virtue of the amendment to Article 58 of the the decision in Gravier. Once the minerval 1980 Law, only those wishing to study in is removed as being contrary to Community higher education and the preparatory year law for those students undertaking voca­ for higher education (and not, as previously, tional training in institutions of higher those in all levels, including secondary and non-university education, this problem will, technical education) have the right to stay it seems, cease to exist. more than three months and then only if they can produce the necessary certificate that they are, for example, enrolled for a course. They can only be entitled if they have paid the enrolment fee payable at the The Commission contends further that if time of enrolment. educational institutions are barred from charging higher fees to university students they will refuse to register them because they will receive no central funding in On the other hand the Royal Decree of 30 respect of such students. Methods of August 1985 (Moniteur belge of 12 financing universities are not dealt with in September 1985) appears to exempt from Gravier and seem to me, on the arguments the enrolment fee students in so far as by so far, to be in principle outwith the scope registering in an educational establishment of application of the Treaty. Even if it can they obtain access to vocational training. be argued that methods of central financing can prove a barrier to access, it seems to me to be impossible to decide this issue on such a hypothetical basis.

Justitie [1982] ECR 1035. The right, it is subsistence, on the same footing as a person said, only belongs to those who are econ­ seeking employment, who it is said has a omically active. It does not seem to me that right of free movement for such a purpose. I this broader issue, which has not been fully think that the analogy is a false one. Even if argued, falls within the compass of the the person seeking work has such a right, present application. In any case the which the Court appeared to accept in the judgment in Kuyken was specifically said to judgment of 18 June 1987 in Case 316/85 be related to specific articles of the regu­ Centre public d'aide sociale de Courcelles v lation there in question. Lebon [1987] ECR 2811, he is available for effective and genuine and not merely ancillary work. The full-time student without more is not in that position. If he in fact becomes a lawful worker the position is different.

COMMISSION / BELGIUM

gation to pay the minervai with effect from to similar actions of a domestic nature and 1 September 1976 and makes effective the that under no circumstances may they be so exemption given by Article 59 (2) from 1 adapted as to make it impossible in practice January 1985. to exercise the rights which the national courts are bound to protect' (Case 68/79 Just v Danish Ministry of Fiscal Affairs [1980] ECR 501, at p. 523).

There was a plain intention to legalize the minervai from 1976, arguments having been Article 63 makes it impossible to recover the raised as to whether it had been properly minervai in question in Forcheri and Gravier introduced by ministerial circular, to limit unless proceedings were instituted before 13 the time from which exemptions applied and February 1985, whereas under Belgian to restrict radically the right of recovery, domestic law sums paid which were not due even for those students who could have can be recovered and a much longer limi­ claimed the benefit of the exemption from tation period is provided relating to such an earlier date than 1 January 1985. claims (Articles 1235, 1376, 1377 and 2260 et seq. of the Belgian Civil Code).

In Forcheri and Gravier the Court did not impose any temporal limits on the effects of In both Forcheri and Gravier the Court held its judgments as, by analogy with Article that the imposition of the minervai in 174 of the Treaty, it had power to do under question was discriminatory and in breach of Article 7 of the Treaty. The charges were Article 177 of the Treaty (Case 43/75 therefore at all times unlawful and should Defrenne v Sabena [1976] ECR 455). not have been imposed.

It is suggested by Belgium that, even apart from the effect of the ruling in Gravier, it was entitled, particularly in universities, to The 1985 Law makes it impossible for require students to pay the minervai because students to recover the minervai in respect of the large number of foreign students of university education unless they had involved (said to be 4.2 or 4.5% of students begun proceedings by 13 February 1985. If in Belgium and much higher than in other the prohibition on discrimination applies to Member States) because of the costs vocational training in universities, then in involved, because no taxes are paid by or by my view the Belgian law limiting the rights the parents of such students, because the of students to recover the minervai paid Council Resolution of 27 June 1980 which was not due is invalid. recognized that Member States should be able to take appropriate measures in the event of substantial imbalances of movements of students caused by numerical limits and other factors, because the Erasmus programme proposes that State It is then asked that the Court should limit authorities should subsidize their nationals' the effect of its ruling in this case if it study abroad, as indeed, in respect of the considers that vocational training can be minervai, the Federal Republic has been undertaken in a university. prepared to do.

On the other hand, the 1963 Decision was Since the Gravier judgment made no limi­ tations it is argued that it is no longer primarily concerned with posts of a super­ possible to introduce a limitation in respect visory level and below and the recommen­ of vocational training institutions of higher dations made by the Commission have been education and that it would be wrong to do limited to those. The Commission concedes so since other cases may have been decided that its view and the general view as to the on the basis of Gravier in respect of earlier scope of vocational training has developed. years or actions introduced subsequent to 13 Moreover, to some extent in the letters of February 1985. The Commission further 18 April and 28 November 1984 approval contends that the Court has used this power had been given for the changes which in limited circumstances and that it is only if Belgium had made. The emphasis on higher the conditions present in Defrenne are education in the Erasmus and Comett satisfied that the power should be exercised, proposals and in the Council decision on namely that there was risk of a serious comparability of vocational training qualifi­ financial repercussion, that a large number cations (Official Journal 1985, L 199, p. 56) of transactions had been concluded by indi­ are all relatively recent and the Commission viduals on the basis of the law as it was itself did not, until this action, bring believed to be and consistently with national proceedings under Article 169 against law, and that the parties had not been put Belgium. Moreover, until Forcheri and on notice that what they were doing was particularly Gravier, there was no clear unlawful, indeed had been encouraged by statement that access to education and the stance of the Commission and certain specifically vocational training fell within Member States to think that what they were the scope of application of the Treaty. doing was lawful.

I do not think that it would be right in all other sources, for the full period of their the circumstances for Belgium to be obliged courses. to pay back all the minervals of which repayment is demanded in respect of voca­ tional training in universities from 1976. Equally I do not think that it would be right I say 'from the date of this Opinion' rather to limit repayment or rather, in view of the than 'from the date of the Court's President's order requiring written under­ judgment' in order not to encourage a spate takings, to accept that the minervai should cease to be payable from the date of the of hopeful new litigants prior to the judgment in this case. Gravier put Belgium judgment. on clear notice and it was plain that some parliamentarians and two ministers thought that university education could include vocational training. I well realize that this proposal may cause some resentment amongst students who had completed their studies before the judgment in Gravier but none of them raised the matter and the date chosen seems to me to In my view a fair and just order in all the be reasonable and one capable of implemen­ circumstances would be that the effects of tation. the breach committed by Belgium in respect of vocational training in universities should be limited as follows:

The position of non-university students is more difficult. In Gravier the Court made no such limitation and there are strong Only those students having the nationality arguments for saying that that position of other Member States who undertook should apply to all students at comparable vocational training at Belgian universities institutions. On the other hand, I do not and read the Court's judgments as saying that a limitation not imposed in one case can never be imposed in later cases in respect of other, even comparable, situations, although it would be wrong on any view to limit the (a) were undertaking such training at the effect of the judgment for Miss Gravier. date of the Gravier judgment or undertook it subsequently, or

(ii) to refuse to register such students for such training if they do not pay the minervai where such minervai is not charged in the case of its own nationals;

(b) lead to the imposition of the minervai on Community students wishing to receive vocational training at Belgian educational establishments other than universities;

(c) limit the right to reclaim minervals charged in the past both as to the classes of Community national who may make such claims and as to the type of voca­ tional training in respect of which such claims may be made.

For my part I would limit the effect of the judgment to provide that only those students of the nationality of other Member States who undertook vocational training, whether in Belgian universities or other educational institutions, and

OPINION OF SIR GORDON SLYNN — CASE 293/85

(a) were undertaking such training at the date of the Gravier judgment or who undertook it subsequently, or