C-47/93

COMMISSION v BELGIUM

OPINION OF ADVOCATE GENERAL GULMANN delivered on 2 February 1994 *

Mr President, nationals of other Member States of the min- Members of the Court, ervai as a condition of access to non- university vocational education where the same fee is not imposed on national students constitutes discrimination on grounds of nationality prohibited by Article 7 of the Treaty. In Blaizot 2 the Court held that the same applied to vocational education at uni- 1. In this case the Commission is claiming, versity. pursuant to Anicie 169 of the EEC Treaty, that Belgium has failed to comply with its obligations under Articles 5 and 7 of the Treaty, first, by continuing in some instances to levy a special supplementary enrolment fee, the 'minervai', on nationals of other EC countries following university studies for In 1985 the Commission brought Treaty vocational training purposes, second, by infringement proceedings against Belgium restricting the access of such students to such largely corresponding to the present pro- studies in Belgium and, third, by restricting ceedings. The Court did not consider the the possibility for students to obtain a merits of the case (see judgment in refund of minervals that have been unduly Case 293/85 3 ). Advocate General Sir Gor- paid. don Slynn's Opinion contains a detailed analysis of the relevant Belgian rules and his views of the merits of the case.

2. Those issues are ones that the Court has had occasion to consider before. 3. I would observe at the outset that:

In its judgment in Gravier * the Court held — the first two of the three situations cov- that the imposition on students who are ered by the Commission's claims relate

— the situations covered by the first two In 1985 those provisions were amended by claims concern only Treaty infringements the Law referred to in the application in that within the French Community since the the group of exempt EC students was legal situation in the Flemish Community extended to include EC nationals who are was brought into line with the require- duly established in Belgium and pursue or ments of Community law in 1991 while have pursued an occupation there, together the third claim concerns the legal situa- with their spouses. That was intended to tions in both the French Community and comply with the judgment of the Court in the Flemish Community. Forcheri 5 which held that it was unlawful to impose an enrolment fee on the wife of an E C official resident in Belgium when no such fee was levied on Belgian students. By Royal Decree N o 435 of 31 March 1987 exemption The first complaint was also extended to 'students who are nationals of a Member State of the Commu- nity and are studying in Belgium for one academic year provided that they establish that they are admitted to an identical course of study in the country of which they are nationals and that they have paid the corre- 4. The Commission claims that Belgium has sponding enrolment fee there'. failed to comply with its obligations under the Treaty 'by failing, in Article 16(1) of the Law of 21 June 1985 on education, to 4 — Exemptions also applied to exempt from payment of the "minervai étu- — 'foreign students [that is, students other than those of Bel- gian and Luxembourg nationality] whose parents or legal diants étrangers" (supplementary enrolment guardians are domiciled or resident in Belgium and carry on fee for foreign students) nationals of other or have carried on their main occupation there; — students residing in Belgian territory whose parents or Member States who come to Belgium for the legal guardians are or have been employed on Belgian terri- sole purpose of studying in a Belgian univer- tory and are nationals of a Member State of the European Economic Community'. sity institution'. 5 — Case 152/82 Forcheri v Belgium [1983] ECR 2323.

10. The Belgian Government does not dis- pute that that rule still applies in the French Community and that it is incompatible with the Treaty. The second complaint

The third complaint 8. The Commission claims that Belgium has failed to comply with its Treaty obligations by conferring, in Article 16(2) of the said 1985 Law, 'on the rectors of university institutions the right to refuse to register' students from other Member States who wish to register at Belgian universities for 11. The Commission claims that Belgium vocational training. 6 has failed to fulfil its obligations under the Treaty by 'restricting in an ad hoc manner the possibilities of obtaining reimbursement 6 — Article 16(2) of the 1985 Law added a new paragraph 7 to Article 27 of the 1971 Law which provides: 'The rector of the university may, from the 1985/86 academic year, refuse to register students who arc not eligible for financing'. 7 — Case 42/87 Commission v Belgium [1988] ECR 5445.

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OPINION OF MR GULMANN — CASE C-47/93

of minervals unduly paid under Community intended to ensure equal treatment as regards law only to Community nationals who com- non-university vocational education, were menced legal proceedings before 13 Febru- not to take effect until 1 January 1985. ary 1985 and by bringing into force the exemptions granted to workers and their spouses and to those who are merely stu- dents who are nationals of other Member States on 1 October 1983 in respect of uni- versity studies and on 1 January 1985 in respect of non-university studies, as pro- 13. The following factors are relevant to an vided by Articles 63, 69 and 71 of that Law'. understanding of this part of the application:

I - 1598

COMMISSION v BELGIUM

submitted an equivalent claim before that The Commission claims that those provi­ date. sions confirm the principle that the special enrolment fee was imposed on students from other EC countries who followed vocational training between 1 September 1976 and 31 December 1984 even though the levy of such a fee was declared incompatible with Art­ icle 7 of the Treaty by the judgment in Gra­ vier. In so far as workers from EC Member States and their spouses are concerned, those 14. The Commission has pointed out that: provisions also confirm that the enrolment fee was imposed from 1 September 1976 until 30 September 1983 even though it was held in the judgment in Forcheri9 that the imposition of such a fee was incompatible with Article 7 of the Treaty.

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OPINION OF MR GULMANN — CASE C-47/93

The Commission submits that it follows nationals of other EC Member States who from those judgments that Article 63 is were to pursue vocational training at non- incompatible with Community law. In so far university institutions. That alleged infringe- as non-university vocational training is con- ment of the Treaty stemmed from the partic- cerned, it denies students the right to reim- ular wording of Article 59(2) of the 1985 bursement of enrolment fees unduly paid Law which made exemption from the enrol- from 1 September 1976 until 31 Decem- ment fee conditional on grant of a residence ber 1984 even though the Court stated that permit. That head of complaint related only those enrolment fees should be repaid even if to the Flemish Community and even as they had been paid before 13 February 1985. regards that community was withdrawn in As regards university education, Article 63 the course of the proceedings because new denies students the right to reimbursement rules were adopted. of enrolment fees unduly paid before 2 Feb- ruary 1988 even if proceedings had been brought to recover them between 13 Febru- ary 1985, the date specified in Article 63, and 2 February 1988 even though the Court held that students were entitled to reim- Accordingly, the Commission states, the bursement of the special enrolment fee if scope of the third complaint is to be limited they had brought proceedings before 2 Feb- as regards Article 71 of the 1985 Law since ruary 1988. that article solely concerned the temporal effects of Article 59 and that provision is no longer open to criticism following the with- drawal of the complaint regarding Article 59.