C-263/86

BELGIAN STATE v HUMBEL

O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 15 March 1988

My Lords, if Luxembourg nationals are entitled to send their children to Belgian educational estab- lishments without paying a minerval, can a French worker resident in Luxembourg claim the same right?

Mr and Mrs Humbel, the defendants in the national proceedings, are French nationals resident and, at least in Mr Humbel's case, working in Luxembourg. Their son Frédéric, born in 1966, attended Belgian schools from 1977 onwards and fees known As to the first question, in Case 293/83 as 'minervals' of varying amounts were paid (Gravier v City of Liège [1985] ECR 593) in respect of his education from school year the Court held that the imposition on 1978/79 to school year 1984/85 inclusive, Community nationals of a charge such as after which the minervai was abolished. the minerval as a condition of access to vocational training where the same fee is not imposed on students who are nationals of the host Member State, constitutes discrimination on grounds of nationality contrary to Article 7 of the Treaty, read The national proceedings before the juge de with Article 128, vocational training being paix at Neufchâteau leading to this defined as 'any form of education which reference under Article 177 concern the prepares for a qualification for a particular minerval of BFR 35 000 for school year profession, trade or employment or which 1984/85 which Mr Humbel refuses to pay provides the necessary training and skills and which the Belgian State is seeking to for such a profession, trade or recover from him. In other proceedings, Mr employment .. . whatever the age and the Humbel has apparently obtained a judgment level of training of the pupils or students, against the Belgian State ordering and even if the training programme includes repayment to him of the minervals paid in an element of general education' (paragraph previous years; that judgment is presently 30). on appeal.

This approach is confirmed by Blaizot in which, dealing with Belgian university courses in veterinary medicine which were divided into two three-year cycles known as 'candidature' and 'doctorat' respectively, the Court held that the second cycle pre- supposed the completion of the first and the two cycles made an indivisible whole (paragraph 21 of that judgment). I am not at present sure — though it is a matter to be investigated by the national court — that The course at issue is given at a secondary there is the same link between the present school known as a technical institute. This courses as there was between the two does not prevent it being vocational training courses in Blaizot. since the Court said in Gravier that the age of the pupils and level of the training was irrelevant. The course itself is of six years divided into three so-called 'degrees' of two years each. The year in respect of which the disputed minerval was paid was Frederic's fourth year and it is accepted that during that year the subjects he studied were quite general (such as languages, mathematics, economics, general science, typing). In the However, even if the course is to be seen as fifth and sixth years, however, some rather one, it is not obvious that the course taken more technical subjects are studied. Mr as a whole is vocational. The first four years Humbel and the Belgian State seem to agree (including the year in issue in these that the training given in the last two years proceedings) seem from what this Court is vocational and, indeed, it appears that no knows to be largely, if not entirely, general minerval was charged in respect of those education. Moreover, the Court was told at years. They disagree on the question the hearing that, even in the final two years whether it is possible to take the course year when the technical subjects account for their by year and charge a minerval in respect of highest proportion of the training given, the years in which the education was not they only amounted to 13 hours per week vocational. Mr Humbel's approach seems to whereas 19 hours per week were devoted to me the correct one — it is necessary to look general subjects. It seems to me that, when at the course as a whole and decide whether it said in Gravier that a vocational course it is a vocational course, and the fact that a might include 'an element of general

In any case, even if the technical subjects If I had come to the view that this first were preponderant, it would be necessary, question fell to be decided by this Court before the course could be characterized as then I would not be satisfied on the infor- vocational within the Gravier definition, to mation available that this course, even taken show that it prepared for a qualification, or as a whole, was vocational training within provided the necessary training and skills, the meaning of Gravier. It seems to me to for a particular profession, trade or be a general educational course with a few employment. subjects of recent origin ('informatique') which are now on the borderline of general and technical education. The actual year in issue is not, if taken alone, vocational training. The Court seems to have taken the same approach in paragraph 19 of the Blaizot judgment where it said, in respect of university courses, that they may be voca- tional not only if they lead to the required If the national court finds that Fréderic's qualification for a particular profession, course was not vocational, the second trade or employment but also in so far as question relating to the Treaty provisions on they confer the necessary training and skills services arises. ('aptitude particulière', the phrase used in Gravier) as where the student needs certain knowledge for the pursuit of a profession, trade or employment even if a formal certificate is not required by law or adminis- trative provision. Mr Humbel, supported by the Commission, makes an argument similar to one raised by Miss Gravier which I considered in my Opinion but with which the Court did not need to deal in its judgment since it The Court was not told for what particular accepted that a vocational training course profession, trade or employment, if any, fell within the ambit of the Treaty so that Frederic's course was relevant. Article 7 applied. Put shortly (as it may be since I dealt with the point fully in Gravier), it is as follows. The provision of education at a school or other seat of learning is the provision of a service. Frédéric was I consider, therefore, that the first question therefore a recipient of that service and, as should be answered on the lines that it is for such, falls within the scope of the Court's the national judge to evaluate the details of ruling in Joined Cases 286/82 and 26/83

Luisi and Carbone v Ministero del Tesoro may be provided. It may equally be that [1984] ECR 377, notably the following neither provider nor recipient move, the paragraph : service being provided and paid for by post or more modern forms of communication, or, as here and in Luisi and Carbone, that the recipient moves. In neither of the latter situations, it seems to me, is the distinction between establishment and services of ' . . . the freedom to provide services includes relevance. the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even in relation to payments . . . tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services' (paragraph 16, ECR 403). The United Kingdom Government argues that the Treaty provisions on services aim to free the provider of services from restrictions, whether imposed upon him or upon the persons desirous of receiving his services (as in Luisi). They do not, however, That case is not directly in point here since require him to provide those services against it concerned restrictions on freedom to his will. In other words, he may use the make payments for services received abroad freedom as much or as little as he likes. imposed by the home State of the recipients Refusal to supply services may be covered of the services. by other provisions of the Treaty, notably the competition rules. His unwillingness to supply is not a 'restriction' within the chapter on services and neither is his readiness to supply certain classes of recipient on special or more onerous terms. I accept, as I accepted in Gravier, that education is capable of constituting a service within the non-exclusive definition contained in Article 60 of the Treaty. I do not think that the fact that Frédéric received this service for a period of some six years necessarily takes the matter outside the scope of the Treaty provisions on services, There is much force in this argument, which some would say must be of a tran- particularly as regards the supply of services sitory nature given the contrast with the by natural or legal persons independent of more permanent nature of 'establishment' the State. However, when a service is covered in Articles 52 to 58 of the Treaty. supplied by the State or an emanation Where a provider of a service goes very thereof (as in the case of a State school), often to the Member State in which his different considerations may apply and it services are to be received, the question seems to me that the State's unwillingness to whether he is established in that State may supply except on terms discriminatory arise. However, as Article 60 (3) clearly against nationals of other Member States implies, that is only one way in which may in certain circumstances constitute a services within the meaning of the Treaty restriction forbidden by Articles 59 and 60.

Mr Humbel argues, as was argued in Gravier, that teachers are paid and bills for My view, with the benefit of the arguments the running expenses of schools are met, so advanced in this case, remains that that it cannot be said that the services are education provided by the State is not not provided for remuneration. This cannot provided 'for remuneration'. The State is be the relevant test to my mind. Charities not a commercial organization seeking a and religious orders also employ people and profit or indeed to recover its costs and pay for heat and light. They may also make break even. If an organization which does a charge for certain services. The real test is not seek profit (not having a 'but lucratif') whether the services are provided as part of cannot take advantage of the freedom to an economic activity. For economic, one establish and to provide services in other could equally well say 'commercial' or Member States conferred by the Treaty (as 'professional'. That seems to me to be the is clear from Articles 58 and 66), it seems to meaning of 'normally provided for follow that would-be recipients of services remuneration'. The question is not whether provided by such an organizm cannot rely the teachers are remunerated, but whether on the Treaty either. (or how) the school is remunerated (or financed).

Profit-making (or profit-seeking) organiz- ations are generally financed by payments for goods sold or services rendered ('remuneration'). Their object in selling 'Remuneration' within Article 60 will almost goods or providing services is precisely to invariably be a payment made by or on receive remuneration. State education, behalf of the recipient which is related to however, like health care, is largely financed the economic cost of providing the services from State taxes. Both are provided as a or is otherwise fixed by commercial criteria matter of what might broadly be termed (as where a service is provided free or social policy. The fact that a charge, usually cheaply in hopes of attracting more work or

It emerges from the observations of Mr Humbel and the Commission that the I therefore conclude, as in Gravier, that the Belgian legislation in question leads to student cannot rely on the services various anomalies. The minerval is not provisions of the Treaty to claim a right to charged for children of French nationals education when such education is not residing in a French commune any point of provided 'for remuneration'. The remainder which is within 15 kilometres of the Belgian of the second question, and in particular the border; however, a Frenchman who resides issue whether the minerval constitutes a in any part of Luxembourg has to pay if his 'restriction' on the receipt of services, children attend Belgian schools. therefore does not require an answer.

Mr Humbel contends that such discrimi- nation on nationality grounds is simply I turn to the third question which requires a prohibited by Article 7 of the Treaty. consideration of Article 48 of the Treaty However, as Gravier shows, it is necessary and of Article 12 of Regulation N o 1612/68 to show that the discrimination is practised (Official Journal 1968, English Special in circumstances which fall within the scope Edition, p. 745) which provides that 'the of the Treaty.

BELGIAN STATE v HUMBEL

Mr Humbel also alleges that the Belgian third question) seem also to argue, the Government seeks to justify that discrimi- particular rights of migrant workers in nation by reference to Article 233 of the respect of their children's education are to Treaty which provides: be deduced from Article 12 of Regulation N o 1612/68.

OPINION OF SIR GORDON SLYNN — CASE 263/86

cultural advancement equal to those enjoyed Luxembourg which is not in issue before the by host State nationals. Belgian court. As the Commission recognized at the end of the day, Article 12 cannot reasonably be extended so as to require Belgium to extend advantages to Although there is much force in this migrant workers resident in Luxembourg argument, it is, as I think counsel for the which it is not obliged to grant, but has Italian Government recognized, primarily conceded on a basis unknown to the Court, directed at the situation obtaining in to Luxembourg nationals.

Accordingly, I consider that the questions of the juge de paix at Neufchâteau be answered along the following lines:

'(1) It is for the national court to rule whether the course followed by Frédéric Humbel constitutes vocational training as defined in Gravier.

(2) Education provided by the State is not a service within the meaning of Articles 59 and 60 of the EEC Treaty since it is not provided for remuneration.

(3) Article 12 of Regulation N o 1612/68 does not require a Member State to make education available to migrant workers resident in another State on the same basis as it makes it available to nationals of that other Member State.'