C-47/93

COMMISSION v BELGIUM

JUDGMENT OF THE COURT 3 May 1994 *

In Case C-47/93,

Commission of the European Communities, represented by Marie Wolfcarius, of its Legal Service, and Théophile Margellos, Avocat, Maître de Conférences at the University of Picardie, on secondment to the Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, also of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

THE COURT,

composed of: G. F. Mancini, President of Chambers, for the President, J. C. Moit- inho de Almeida and D. A. O . Edward (Rapporteur) (Presidents of Chambers), R. Joliét, F. A. Schockweiler, G. C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg and J. L. Murray, Judges,

Advocate General: C. Gulmann, Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 15 December 1993,

after hearing the Opinion of the Advocate General at the sitting on 2 Febru- ary 1994,

2 So far as university teaching is concerned, Article 25 of the Belgian Law on the finance and control of university institutions of 27 July 1971 (Moniteur Belge of 17 September 1971) ('the 1971 Law') provides for an annual contribution by the Belgian State to the operating expenses of university institutions. The contribution is calculated inter alia by reference to the number of students duly registered. Art- icle 27 of the 1971 Law, as amended by Article 85 of the Law of 5 January 1976 (Moniteur Belge of 6 January 1976), provides that the ordinary operating expenses of the university institutions are to be covered by reference to the number of stu- dents who are regularly charged to the national education budgets as regards, in particular, students of Belgian or Luxembourg nationality. Certain foreign students may also be taken into account for the financing of university institutions, in par- ticular those whose parents are resident in Belgium and carry on or have carried on an occupation there and students residing themselves in Belgium whose parents are Community nationals who work or have worked in Belgium. The number of other foreign students cannot exceed 2 % of the total number of Belgian students. For- eign students who are not charged to the national education budgets contribute to the ordinary operating expenses of the university institution at which they are enrolled. In particular, they must pay a supplementary enrolment fee, generally called the 'minervai'.

3 The Law of 21 June 1985 on education (Moniteur Belge of 7 July 1985) ('the 1985 Law') amended the legislative provisions on the financing of university institutions and the minervai. Article 16(1) of the 1985 Law adds to the category of foreign students who may be charged to the Belgian State students who are nationals of a Member State of the Community who are duly established in Belgium and pursue or have pursued an occupation there and also students whose spouses meet those

7 The Commission considered that the said provisions of the 1985 Law were con- trary to Community law and, by letter of 21 November 1989, pursuant to Art-

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COMMISSION v BELGIUM

iele 169 of the Treaty, called on the Belgian authorities to submit their comments within two months. It received no response. O n 21 March 1991 the Commission sent a reasoned opinion inviting the Kingdom of Belgium to take the necessary measures to comply with it within two months. By letter of 19 October 1992 the Belgian authorities replied to the reasoned opinion. Considering that reply unsat- isfactory, the Commission brought this action.

s The Commission stated at the hearing that of the four complaints relied on in its application it was maintaining three which must therefore be examined here.

9 The Belgian Government does not dispute the infringement with which it is charged in those three complaints but points out that amendments are in hand in order to bring the Belgian rules into line with Community law.

The second complaint

1 3 The Commission claims that Article 16 of the 1985 Law entails discrimination on grounds of nationality since students who are nationals of other Member States may be refused enrolment in university institutions whereas that cannot happen to Belgian students. It further points out that rectors of university institutions may refuse to register a Community student even if he offers to pay the minervai if he is not within the 2 % category for foreign students who give rise to a right to uni- versity funding. The Commission believes that that 2 % limit is a financial barrier to access to education. In support of this complaint it points out that this issue has already been resolved by the Court in so far as concerns non-university higher education in its judgment in Case 42/87 Commission v Belgium [1988] ECR 5445. The Court held that in so far as the legislation in question hmited the financing of vocational higher education establishments it had the effect of excluding in practice students who were nationals of other Member States once the quota of 2 % was

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reached. Since such a restriction was not provided for in respect of Belgian stu- dents, it constituted discrimination on grounds of nationality prohibited under Article 7 of the Treaty.

1 4 It must be held that the power given to rectors of university institutions to refuse to register students who are nationals of other Member States who cannot be taken into account for the financing of those institutions also constitutes discrimination on grounds of nationality since Belgian students may not be so refused (see judg- ment in Case 42/87 Commission v Belgium, cited above).

17 The Commission further claims that Article 69 of the 1985 Law, by providing that Article 16 of that Law is to come into force on 1 October 1983, confines exemp- tion from the minervai payable for university studies by the students referred to in Article 16(1), that is nationals of Member States who are duly established in Bel- gium and pursue or have pursued an occupation there, to the period after 1 Octo- ber 1983 even though the Court held in Case 152/82 Forcheri v Belgium [1983] E C R 2323 that it was contrary to Article 7 of the Treaty to impose on that cate- gory of students an enrolment fee which was not required of Belgian nationals.

18 The Court finds that Articles 63 and 69 of the 1985 Law constitute discrimination on grounds of nationality because they restrict the possibilities for students who are nationals of other Community countries to obtain reimbursement of minervals unduly paid under Community law (see the judgments in Gravier, Barra, Blaizot and Forcheri, cited above).

19 It must therefore be held that, by failing, in the Law of 21 June 1985 on teaching, to exempt from the 'minervai étudiants étrangers' nationals of other Member States who come to Belgium for the sole purpose of following courses in Belgian univer- sity institutions, by giving the rectors of university institutions the right to refuse to register such students, by restricting in an ad hoc manner the possibility of obtaining reimbursement of minervals unduly paid under Community law only to Community nationals who commenced legal proceedings before 13 February 1985, and by bringing into force the exemptions granted to workers and their spouses

THE COURT

hereby:

1. Declares that, by failing, in the Law of 21 June 1985 on teaching, to exempt from the 'minervai étudiants étrangers' nationals of other Member States who come to Belgium for the sole purpose of following courses in Belgian university institutions, by giving the rectors of university institutions the right to refuse to register such students, by restricting in an ad hoc manner the possibility of obtaining reimbursement of minervals unduly paid under Community law only to Community nationals who commenced legal pro- ceedings before 13 February 1985, and by bringing into force the exemptions granted to workers and their spouses who are nationals of other Member States on 1 October 1983, as provided for by Articles 63 and 69 of that Law, the Kingdom of Belgium has failed to fulfil its obligations under Articles 5 and 7 of the EEC Treaty;

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2. O r d e r s the Kingdom of Belgium to pay the costs.