C-309/85

OPINION OF SIR GORDON SLYNN — CASE 309/85

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

My Lords, those who had brought court proceedings before the date of the Gravier judgment, read with Article 69 (which limits the exemption from paying the minerval conferred in Article 16 (1) to the period In the proceedings before the President of after 1 October 1983) and Article 71 (which the tribunal de première instance at Liège imposes the obligation to pay the minerval which have given rise to this reference, the with effect from 1 September 1976 and plaintiffs are 17 French nationals, who have makes effective the exemption given by at various times followed courses in the Article 59 (2) from 1 January 1985). gunsmithing section of the Institut communal d'enseignement technique de la fine mécanique, de l'armurerie et de l'horlogerie (Municipal Technical Institute for precision engineering, gunsmithing and clockmaking) in Liège. All of them were The 1985 Law does not make any special required to pay a foreign student's provision for the coming into force of enrolment fee ('minervai') for the academic Article 63 and so that article was not in years during which they attended the force between 13 February 1985 and the Institute until the academic year beginning coming into force of the 1985 Law. in 1985. The first year in which one or some of them attended a course was, it seems, the academic year 1979-80. On 7 March 1985, very promptly after the Court's ruling on 13 February 1985 in Case 293/83 Gravier v City of Liège [1985] ECR 593, the plaintiffs The President of the tribunal de première began interlocutory proceedings against the instance at Liège asks the Court two Belgian State seeking repayment of the questions about its interpretation of the minervals paid before 13 February 1985. On Treaty in Gravier to test the compatibility of 12 June 1985, they sought the joinder of the Article 63 with Community law: City of Liège as third party in the proceedings.

nation on the grounds of nationality direct action, I consider that attention has contrary to Article 7 of the Treaty. to be directed to the course rather than the institution. The Belgian Government in its observations gives two reasons why, in its view, the courses were not vocational. First they are said to be at the secondary level; second, it has not been shown that such training is not available in the plaintiffs' home State, France. Neither is decisive. The Gravier definition makes it clear that training may be vocational irrespective of (1) Is that interpretation of the Treaty the level of studies or the age of the pupils limited to applications for admission to or students. The question is whether the vocational training courses made after ourse prepares for a qualification or the date of the judgment or does it also provides the necessary skills and training for apply to the period between 1 Sep­ a particular profession, trade or tember 1976 and 31 December 1984? employment. If it does so then it is not excluded because given in a 'secondary level' school, though such courses may in general secondary schools be less frequent than in, for example, technical or other higher educational institutions. The Belgian Government refers to paragraph 24 of Gravier in which the Court said that 'access to vocational training is in particular likely (2) If the interpretation applies also to that to promote free movement of persons period before the date of the judgment, throughout the Community ... by enabling is it compatible with Community law them to complete their training and develop that pupils and students from other their particular talents in the Member State Member States who have been whose vocational training programmes improperly obliged to pay a charge, include the special subject desired'. I registration fee or "minervai" should be emphasize the words 'in particular'. I do not deprived by national legislation of their read that paragraph as derogating from the right to repayment if they did not bring rule that there may be no discrimination on legal proceedings before the date of that grounds of nationality in conditions of judgment?' access to vocational training. It merely illus­ trates one reason why students may choose a particular course.

within the scope of application of the Treaty trazione delle Finanze dello Stato v Ariete without the intending student being [1980] ECR 2545; Amministrazione delle required 'to show that there was any Finanze dello Stato v San Giorgio [1983] objective reason why he had chosen a ECR 3595). The President of the tribunal particular school or country to carry out his de première instance at Liège has, it seems, training'. I reject the contention that a concluded that Article 63 of the 1985 Law student has to show that he could not find does have the effect of making it more the course in his home State. difficult for foreign students than for Belgian students to recover sums paid which were not due; for the reasons given in my Opinion in the direct action I have come to the conclusion that that article does make it ex facie impossible for students to recover sums paid which were not due. In my view the answer to the first question, leaving aside the question whether the Court can in this case limit the effect of its judgment in this case, is that the ruling in Gravier (that 'the imposition on students who are nationals of other Member States of a charge, a registration fee or the If the Gravier ruling has this effect in so-called "minerval" as a condition of respect of all vocational training (other than access to vocational training, where the in respect of universities) and the Court same fee is not imposed on students who cannot make any temporal limitations in are nationals of the host Member State, respect of vocational training courses in constitutes discrimination on grounds of other institutions, then the sums paid since nationality contrary to Article 7 of the 1976 are recoverable subject to the generally Treaty') is not limited to applications for applicable Belgian rules on limitation of admission to vocational training courses actions. There are strong arguments, as I made after the date of the judgment and it recognized in the direct action, for does apply to the period prior to that date. accepting that the position of students who The ruling was in no sense prospective only: undertook vocational training, at any rate it declared what the law was and that law outside universities, is wholly regulated by fell to be applied generally. Gravier, in which case the present students, it seems, should succeed. The number of students involved is apparently less (642 in such institutions as opposed to a much larger number of potential claimants in universities) so that the cost is that much lower. There is also no intrinsic difference between students who took their courses at The answer to the second question is that one time rather than another so that, to say only the Court can limit the temporal effects that some can recover but others not, is of such a ruling and it is incompatible with unsatisfactory. Community law for such a Member State, whether by legislation or judicial decision, to deprive students who have been required to pay such fees of their right to repayment if they did not institute proceedings before the date of the judgment in Gravier (for example, Case 68/79 Just v Danish Ministry On the other hand, to distinguish between of Fiscal Affairs [1980] ECR 501 ; Amminis- vocational training courses in universities

The answers to be given to the President of the tribunal de première instance , Liège , in my view should therefore be to the effect that , as regards non-university vocational training , the imposition of a charge or fee as a condition of access to vocational training , where the same charge was not imposed on students of a host Member State , constitutes discrimination on grounds of nationality contrary to Article 7 of the Treaty , whether or not the courses were undertaken before or

OPINION OF SIR GORDON SLYNN —CASE 309/85

after 13 February 1985, and national rules cannot, compatibly with Community law, deprive students who have paid such fees in respect of the period 1976 to 1984 of the right of recovery or limit it to those who instituted proceedings before that date. On the other hand it would be just that this Court should rule that the recovery of such fees should be limited to those who were undertaking vocational training (other than in universities) on 13 February 1985 or who have subsequently received such training or who instituted proceedings for the recovery of such fees before the date of this Opinion and in respect of the whole of their courses.

The costs of the parties to the main action fall to be dealt with by the national court. The Commission's costs are not recoverable.