C-42/87

In these proceedings, the Commission applies under Article 169 of the EEC Treaty for a declaration that Belgium has failed to This position was not altered by the Law of fulfil its Treaty obligations by reason of the 21 June 1985 with which the Court is manner in which it treats nationals of other familiar from the judgment of 2 February Member States except Luxembourg for the 1988 in Case 293/85 Commission v Belgium purpose of determining the level of ECR 305 and which abolished the specific government funding and staffing for higher registration fee (or 'minerval') for certain educational institutions other than univer- categories of foreign students. Indeed, sities. Article 64 of that law added to the Law of 7 July 1970, on the general structure of higher education, an Article 9 bis providing expressly that institutions of higher education might refuse to register students ineligible for finance. This provision was not expressly mentioned in the Commission's reasoned opinion sent to the Belgian Government on 25 July 1986 or in its letter The relevant provisions are contained in of 15 November 1985 seeking Belgium's Article 2 of the Royal Decree of 21 July observations on the alleged infringements, 1982 as amended by Article 1 of the Royal but explicit reference was made to the Decree of 12 July 1984. As so amended, risk, allegedly borne out in practice, of Article 2 provides that only certain Community students being refused access to categories of foreign students other than courses at such institutions in Belgium. Luxembourg nationals will be taken into account for determination of central funding and staffing levels. Of the 10 categories listed in paragraphs (b) to (k) of Article 2 (1) 2 the first nine were narrowly defined (including children or wards of a Belgian national or resident and students who were or whose spouse was working in The Commission considers that such actual Belgium) and the 10th in paragraph (k) was or potential refusal deprives Community a residual category of 'others'. Those falling nationals who wish to go to Belgium for the within paragraph (k), however, would only sole purpose of studying of a right which

they derive from A r t i c l e7 read with Article refusal of ineligible students. If this 128 of the Treaty as interpreted by the argument had been admissible, which it is Court in Case 293/83 (Gravier v City of not, I should have rejected it since, as Liège [1985] ECR 593). Furthermore, already indicated, the risk of refusal was children of migrant workers may be mentioned in the reasoned opinion. deprived of rights flowing from Article 12 of Regulation No 1612/68 (Official Journal, English Special Edition 1968-69, p. 45) which provides that 'the children of a national of a Member State who is or who On the merits, the Commission's claim rests has been employed in another Member principally on Gravier in which the Court State shall be admitted to that State's held that 'the conditions of access to voca- general educational, apprenticeship and tional training fall within the scope of the vocational training courses under the same T r e a t y '(paragraph 25) and that therefore conditions as the nationals of that State, if 'the imposition on students who are such children are residing in its territory'. nationals of other Member States, of a Children of deceased migrant workers charge, a registration fee or the so-called retain their entitlement under Article 12 by "minervai" as a condition of access to voca- virtue of Regulation No 1251/70 (Official tional training, where the same fee is not Journal, English Special Edition 1970, p. imposed on students who are nationals of 402) which provides in A r t i c l e3 (1) that the host Member State, constitutes discrimi- 'the members of a worker's family . . . who nation on grounds of nationality contrary to are residing with him in the territory of the Article 7 of the Treaty' (paragraph 26). Member State shall be entitled to remain there permanently . . . even after his death' and in Article 7 that 'the right to equality of treatment, established by Council Regu- lation (EEC) N o 1612/68, shall apply also The provisions at issue in this case clearly to persons coming under the provisions of discriminate on nationality grounds and this regulation'. the application concerns those Belgian institutions of higher education, other than universities, which provide vocational training within the definition given in paragraph 30 of the Gravier judgment.

apprenticeship, in particular vocational held in Gravier, and of social policy which training, are not unconnected with fell within Member State competence in so Community law' (ibid.). The Court thus far as not specifically covered by other draws a distinction between the organ- provisions of the Treaty (see the judgment ization and financing of education and of 9 July 1987 in Joined Cases 281, 283 access to it. to 285 and 287/85 (Federal Republic of Germany and Others v Commission ECR 3203), especially at paragraph 14); and that the Gravier principle only covered grants for registration or tuition fees required for access to education (see paragraphs 14 and 15 of the judgment). This ruling was confirmed in the judgment of 21 June 1988 The present case is not concerned with a in Case 197/86 (Brown v Secretary of State direct financial barrier to access, as in for Scotland ECR 3205) concerning the Gravier and in Case 152/82 (Forcheri v payment by a Member State of both tuition Belgium [1983] ECR 2323). However, if the fees and maintenance grants in which the fee cannot be required of the Community Court held that only the former fell within student, and is not forthcoming from any Article 7 of the Treaty. other source, it may no longer be econ- omically possible for the educational institution to offer places to Community students once the 2 % limit has been reached. The Commission's contention is in essence that, despite the fact that educa- tional organization and policy, including financing, are matters for the Member There is a distinction between the present States, Community law requires that case and those of Mrs Lair and Mr Brown. Member States do not adopt arrangements They were not prevented from following for the financing of vocational training their courses by the relevant national rules, which enable their own nationals to although they had to bear some of the cost undertake such training without numerical which the State bore in the case of limit but which in practice impose a nationals. The Belgian rules in issue in the numerical limit on those nationals of other present case, however, potentially lead to Member States who may undertake such Community students being completely training. excluded from courses.

In my opinion, however, the 2% limitation the types of education it lists, which are not is a 'financial barrier to access to education' confined to vocational training, for children within the meaning of Gravier. If no of migrant workers. Certain categories of financial provision is made for Community such children are not expressly covered by nationals over and above the 2%, students paragraphs (a) to 0) of Article 2 (1) 2 of in excess of that percentage are effectively the 1982 Decree as amended. In particular, excluded from access on the basis of their there is no provision for children, resident nationality. If a financial barrier making it in Belgium, of migrant workers no longer so more difficult for the Community student to resident or deceased. accede to vocational training may not be charged, a fortiori measures which completely exclude such access are unac- In Case 9/74 (Casagrande v Landes- ceptable. This rule seems to me to be in a different category from the policy as to hauptstadt München [1974] ECR 773), the maintenance grants; financial policies Court interpreted Article 12 as referring adopted by Member States which affect 'not only to rules relating to admission, but access to education must not be such as to also to general measures intended to introduce in practice discrimination against facilitate educational attendance' (paragraph Community nationals on the basis of their 4) and deduced from the second paragraph nationality. The Commission's principal of the article, under which Member States claim, in my view, is made out. are required to encourage 'all efforts to enable such children to attend these courses under the best possible conditions', that it is As to the Commission's second claim, 'intended to encourage special efforts, to Article 12 of Regulation No 1612/68 ensure that the children may take advantage provides a right to admission under the on an equal footing of the education and same conditions as host State nationals to training facilities available' (ibidem).