The Right to Education and Free Movement of Persons: Whose

The Right to Education and Free Movement of Persons:
Whose Right is it and how does the EU Protect it?
Egle Dagilyte1
1
INTRODUCTION
The development of the right to education at the EU level has been evolving since Articles 149
EC (education) and 150 EC (vocational training) were introduced by Maastricht in 1993. The right to
education stands firmly as an individual legal right in all constitutions of the 27 Member States,
including candidate countries Turkey 2 and Croatia. 3 However, is this right as firmly protected at
European level as in national law, especially in situations where it limits or goes together with the free
movement of persons?
The aim of this paper is twofold. Firstly, I shall reconsider whether fundamental rights are
always in tension with market freedoms. The ECJ has many times considered fundamental rights as a
ground of justification for imposing restrictions on the market freedoms: e.g. human dignity,4 freedom
of expression and freedom of assembly 5 as opposed to free movement of goods; right to strike as
compared to freedom of establishment6 and freedom to provide services7. However, can there be cases
where fundamental rights and market freedoms go hand-in-hand with each other? Can there be
situations of non-contradiction between the two which involve the undying questions of subsidiarity
and the EU/Member States competences?8 Therefore, I will address the problem of tensions identify
which tensions are ‘real’ (fundamental right v fundamental right). To this end, I will suggest that it may
be more correct to frame the question of tensions between fundamental rights and economic freedoms
as ‘norm v norm’ debate, instead of a ‘right v right’ debate.
The second aim of this paper is to raise the question whether long-term resident third-country
nationals (LTR TCNs) should also be considered as rights holders in the enlarging European Union.
1
PhD candidate, King’s College London, School of Law. Email: egle.dagilyte@kcl.ac.uk.
2
Art 42 of the Constitution of the Republic of Turkey (1982), which is entitled ‘Right and Duty of Training and Education’.
3
Articles 65-67 of the Constitution of the Republic of Croatia (1990).
4
C-36/02 Omega [2004] ECR I-9609.
5
C-112/00 Schmidberger [2003] ECR I-5659.
6
C-438/05 Viking [2007] ECR I-10779.
7
C-341/05 Laval [2007] ECR I-11767.
8 See Art 6(c) TFEU, which states that the areas of the EU action to “support, coordinate or supplement the actions of
Member States” include education, vocational training, youth and sport. The exercise of the Union's supportive competence
in the field of education is governed by the principles of subsidiarity and proportionality.
1
The paper argues that social rights of LTR TCNs legally residing and working in the EU must be
upheld and enforced in the same way as social rights of the EU citizens. Today, despite a certain degree
of integration of LTR TCNs into European society, their status remains inconsistent with the EU’s and
the Member States’ legal and political commitments to social human rights. Europe needs migrant
workers from third countries, but it is unprepared to treat them equally with its citizens. Therefore, in
the second half of the paper I will explain why it is time to consider LTR TCNs as an inherent part of
the European economic and political society and in this light I will address the problem of protecting
LTR TCNs right to education when different tensions arise (‘real’ and ‘other’).
Both questions will be posed in the light of the recent case C-73/08 Bressol & Chaverot 9 which
deals with the fundamental right to equal access to education and free movement of persons. This case
is a reflection of the continuing ‘competence struggle’ between Member States and the Commission10 as
to who has the priority to regulate the right of access to education when individuals travel to study to
another Member State and exercise the economic right to free movement.
Before commencing to discuss different types of tensions, I would like to clarify that for the
purposes of this article the right to education is understood as the right to equal access to education.
This means we will exclude equal access to education funding (e.g. recent ECJ cases, including
Grzelczyk,11 Bidar,12 Forster13 etc). Further, in this article LRT TCNs are understood as long-term resident
TCNs who have been legally residing in one of the Member States for a minimum of five years without
major interruptions, provided they have a minimum level of resources and do not constitute a threat to
public order or public security. 14 This definition excludes students, diplomats, refugees, persons
benefiting from temporary protection, asylum seekers, short-term labour migrants, illegal immigrants or
individuals who for other humanitarian reasons cannot be returned to their country of origin.
9 Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française; not yet decided
by the ECJ. The opinion of AG Sharpston delivered on 25 June 2009 supports the Commission’s view: the Belgian
legislation infringes EU law on non-discrimination and cannot be effectively justified in order to remain in force.
10 See Case C-65/03 Commission v Belgium [2004] ECR I-6427 and Case C-147/03 Commission v Austria [2005] ECR I-5969. In
both cases the ECJ held that the Member States infringed EU law, as especially the principle of non-discrimination on the
grounds of nationality, by imposing more difficult university entrance conditions for nationals of other Member States. As a
result, in 2006 Belgium capped the number of foreign students (mainly French) of 30% in a number of medical subjects
dominated by non-nationals, establishing a quota of 70% for students who are resident in Belgium. On the day the
judgement in Commission v Austria was delivered, Austria ended unlimited access to free medical education, too: 75% of the
places in Austrian medical schools would be reserved for students who finished their secondary education in Austria; 20%
of the places were left for EU students; and 5% for third-country nationals.
11
Case C-184/99 Grzelczyk [2001] ECR I-6193.
12
Case C-209/03 Bidar [2005] ECR I-02119.
13
Case C-158/07 Förster [2008] ECR I-8507/
14 Articles 4-7 of the Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003]
OJ L16/44.
2
In order to discuss the two main questions raised, I would first like to have a look at the
tensions and right-holders behind Bressol & Chaverot. Therefore, it appropriate to briefly outline the
background of the case before attempting to answer the two main questions outlined above.
2
BRESSOL & CHAVEROT AND THE RIGHT TO EDUCATION IN THE EU
2.1
Prelude to Bressol & Chaverot: Belgium and Austria in 2003
The story behind the Bressol & Chaverot judgement goes back to 2003, when two similar cases
appeared in Belgium and Austria. In both the action was taken by the Commission against the two
Member States on the grounds of discrimination on nationality regarding free access to education.
In Commission v Belgium 15 national legislation on recognition of foreign qualifications and
diplomas was in question. It prescribed that nationals of other Member States possessing qualifications
awarded on successful completion of secondary studies at a home Member State, must ‘take and pass
an aptitude test.’ 16 This applied to courses in medical studies, dental and veterinary science, and
agricultural engineering in Belgium. The Commission claimed that this additional requirement
constituted a condition of access to higher and university education as it was the Gravier17 case. The
Court, therefore, held that Belgian nationals and nationals of other Member States (i.e. Luxembourg)
were treated differently, which resulted in discrimination on the grounds on nationality.18 As Belgium
did not put forward any justifications for such a treatment, the ECJ concluded that it ‘failed to fulfil its
obligations under Article 12 EC, read in conjunction with Articles 149 EC and 150 EC.’19
In Commission v Austria 20 the Law on University Studies 21 was questioned, where special
requirements for foreign EU students were established. The Law on University Studies stated that ‘[i]n
addition to possession of a general university entrance qualification, students must demonstrate that
they meet the specific entrance requirements for the relevant course of study’.22 The Court held that
these rules of national law regulate the conditions of access to higher or university education. 23
Therefore, they fall within the scope of the treaty and must meet the non-discrimination requirements
15
Case C-65/03 Commission v Belgium [2004] ECR I-6427.
16
Para 13.
17
Para 15.
18
Para 29.
19
Para 31.
20
Case C-147/03 Commission v Austria [2005] ECR I-05969.
21
Universitäts-Studiengesetz.
22
Paragraph 36(1) of Universitäts-Studiengesetz.
23
Para 34.
3
as stated in Art 12 EC. According to the ECJ, Austrian law constituted indirect discrimination. Such
rules resulted in higher proportion of Austrian students than EU students in Austrian universities. The
fact that Paragraph 36(1) of the Law on University Studies applied to all students did not matter, as the
effect of it was discriminatory and hence infringing the non-discrimination principle24 on the grounds of
nationality. The Court concluded that this indirect discrimination could not be justified either on
safeguarding the homogeneity of the Austrian higher or university education system,25 or preventing
abuse of Community law,26 or because of Austria’s obligations under international law.27 ‘In rejecting
the justification of the Austrian legislation, the judgment goes to show that the ECJ is willing to go far
in enforcing the principle of equality in access to education, unafraid of the substantial impact the
ruling might have on the organization of the domestic education system.’ 28
As we can see, in both cases the ECJ followed the Commission’s line of arguments and
disregarded Member States. Further, both cases concern the social right of EU citizens, not LTR TCNs.
This begs the question: what influence did these two decisions have on the regulation and funding of
public education (both for EU citizens and LTR TCNs) in Belgium and Austria? Naturally, it caused
outrage from the Member States. Both countries decided not to comply with the Court’s ruling: they
passed new legislation in response to the judgments. As a result of the outcome in Commission v Belgium,
in March 2006 Belgian Minister for Higher Education proposed capping the number of foreign
students (mainly French) at 30% in a number of medical subjects dominated by non-nationals,
establishing a quota of 70% for students who are resident in Belgium.’29 On the day the judgment in
Commission v Austria was delivered, Austria ended unlimited access to free medical education, too: 75%
of the places in Austrian medical schools would be reserved for students who finished their secondary
education in Austria; 20% of the places were left for EU students; and 5% for TCNs.30
In 2007 the Commission sent Austria and Belgium letters of formal notice regarding restrictions
of access to their higher-education systems by holders of secondary education diplomas from other
24
Para 47.
Para 66. The Court pointed out that similar risks to higher or university education system are also experienced by Belgium
and referred to its Case C-65/03 Commission v Belgium [2004] ECR I-6427; see para 62 to that regard. Also, Austrian law was
not in line with the principle of proportionality: the Court held ‘that excessive demand for access to specific courses could be met by the
adoption of specific non-discriminatory measures such as the establishment of an entry examination or the requirement of a minimum grade’; see
para 61.
25
26 Para 70. The right to gain access to higher or university education cannot of itself constitute an abuse of freedom of
movement for students guaranteed by the Treaty.
Para 75. Austria failed to take all appropriate steps to eliminate the incompatibilities of its international agreements that
are not compatible with the Treaty.
27
28
S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 8.
29
S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 12.
30 E. Beerkens, ‘The Europeanisation of Higher Education’ (Presentation at CHEPS European Summer School Modes of
European
Integration,
Enschede,
the
Netherlands,
6-10
July
2009)
<http://www.utwente.nl/cheps/summer_school/Presentations/Beerkens.pdf>, retrieved 19 August 2009.
4
Member States,31 claiming that both countries failed to justify the new national legislation governing the
matter, which discriminates on the ground of nationality. Having received responses on 28 November
2007 the Commission was forced to suspend both ongoing infringement cases and gave five years to
Belgium and Austria to submit supplementary data on their situations in order to be able to judge
whether the national measures in question are justified on the basis of proportionality.32
2.2
Bressol & Chaverot: law to date and likely outcomes
While the Commission was waiting, another case came up before the ECJ in 2008. Once again,
it was against Belgium. However, instead of the Commission as the applicant, in Bressol & Chaverot33 it
was more than 60 individuals, including French students and teaching and administrative staff of higher
education institutions in the French Community, 34 who challenged the Belgian legislation ‘on
suspension’ with the Commission. As Garben correctly notes, another challenge (this time not
involving the Commission) of the restrictive national legislation was only a matter of time: ‘the student
population of Europe has proved to be litigious, pro-active and vocal, to know its way to court and not
to be hesitant to seek to assert their rights, and up to now they have met with a European Court more
than willing to help them do so.’35 The students in Bressol & Chaverot sought to annul the Belgian
Decree 36 and disputed the difference in treatment it established between Belgian and other EU
nationals for the admission to courses in question.37
What were the national arguments in favour of the legislation? ‘[T]he [Cour constitutionnelle de
Belgique] in its judgment extensively dealt with the legislation under scrutiny and its legitimate
European Commission, ‘Free movement of Students: the Commission Sends Letters of Formal Notice to Austria and
Belgium’
(press
release
IP/07/76,
January
2007)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/76&format=HTML&aged=0&language=EN&guiLan
guage=en>, retrieved 20 August 2009..
31
32 European Commission, ‘Access to Higher Education: the Commission Suspends its Infringement Cases against Austria
and
Belgium’
(press
release
IP/07/1788,
November
2007)
<http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1788&format=HTML&aged=0&language=EN&guiL
anguage=en>, retrieved 20 August 2009. The change of Commission’s behaviour was due to the fact that Austria demanded
a special Treaty protocol, which would allow it to set a cap on the number of foreign university students. Garben gives
rightful comments on Austria’s political game: ‘In what one could call a master class in political bargaining, the Austrian government
seized the opportunity of the Lisbon Treaty negotiations to wheedle a promise from the Commission to suspend the infringement proceedings,
allowing it to keep in place its condemned discriminatory legislation;’ S. Garben, ‘The Belgian/Austrian Education Saga’ (2008)
(Harvard European Law Working Paper No. 01/2008), para 5.
33
C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, not yet judged.
The opinion of AG Sharpston delivered on 25 June 2009 in Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and
Others v Gouvernement de la Communauté française, not yet reported, para 3.
34
35
S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 14.
36 Décret régulant le nombre d’étudiants dans certains cursus de premier cycle de l’enseignement supérieur (Decree
regulating the number of students in certain programmes in the first two years of undergraduate studies in higher education).
37 The opinion of AG Sharpston delivered on 25 June 2009 in Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and
Others v Gouvernement de la Communauté française, not yet reported, para 27.
5
justification, and provided many arguments why it felt that the ECJ should come to the conclusion that
the legislation was indeed justifiable.’38 The reasons for justification pointed out by the national court
included the fact that the education was mainly publicly funded; that limited human and material
resources were closely connected to the educational facilities; that in some courses the huge amount of
foreign students (78-86% of total students) undertaking health courses was a threat to the public health
system; and that the French Community in Belgium had already tried a system with a general entry
exam in the area of veterinary science (as suggested by the ECJ in Commission v Austria)39 which was
detrimental to the French Community.40
AG Sharpston delivered her opinion on 25 June 2009, in which she firstly established that both
cumulative conditions for entry set out in Belgian legislation 41 constitute discrimination. The
requirement to show that a student’s principal residence is in Belgium was held to amount to an
indirectly discriminatory measure42 and the fulfilment of one of eight further conditions listed therein
amounted to direct discrimination.43 AG Sharpston stated that indirect discrimination is easier to justify
than direct one. 44 However, according to the Advocate-General, the first condition could not be
justified either on the excessive burden of public finances (as a purely economic argument, where
increase/decrease of number of students is budget neutral),45 or on the possibility of jeopardising the
quality of education in the French Community,46 or on the quality of public health system47 (which can
be addressed at national level).48 As for the second, directly discriminative cumulative condition, AG
Sharpston pointed out that it can only be justified by a derogation stated in the Treaty itself; as no such
derogations from non-discrimination on the grounds of nationality exist, the second cumulative
38
S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 16.
39
Para 61.
40 In France the access to national veterinary courses was subject to two years of preparatory education after obtaining a
secondary school diploma and high competition due to numerus clausus for physiotherapy courses. Therefore, French
students had academic advantages against straight out-of-school Belgian students of the French Community in Belgium.
Next to this, the size of the French Community was much smaller than that of France. See S. Garben, ‘The
Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 17. See also the
opinion of AG Sharpston delivered on 25 June 2009 in Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v
Gouvernement de la Communauté française, not yet reported, paras 21-24.
41 Article 1 of the Decree: (i) he must show that his principal residence is in Belgium; (ii) he needs to fulfil one of eight
further conditions listed there. See paras 37 and 12 of the opinion of AG Sharpston delivered on 25 June 2009 in Case
C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, not yet reported.
42
Para 63.
43
Para 67.
44
Para 78.
45
Paras 87-99.
Paras 112-113; AG Sharpston suggested for Belgium to adopt the same capping as it is in place in France, which is in line
with EU law; see paras 106-110.
46
47
Paras 114-126.
48
Paras 120-121.
6
condition of Article 1 of the Decree could not be justified, either.49 Therefore, the AG’s advice to the
ECJ is that the Belgian legislation infringes EU law on non-discrimination and cannot be effectively
justified in order to remain in force.
It is quite likely that the outcome of this case could affect the Commission’s final view on the
numerus clausus in Belgium and Austria. Two possible endings were proposed by Garben in Bressol &
Chaverot. In the first scenario the ECJ could follow Advocate General’s opinion and declare that Belgian
law is incompatible with the EC Treaty, suggesting less discriminating types of entry qualifications.50
Here the Court could even have a chance to ‘expound the meaning of the prohibition of harmonization
as laid down in Article 149(1) EC.’51
The second scenario for the Court is to uphold that Belgian legislation is indirectly
discriminatory; however, that this discrimination can be justified in the light of proportionality principle,
which allows balancing the EU and Member States’ interests. This would be a step back in the light of
current jurisprudence; nevertheless, having in mind the substantial arguments for justification of such a
treatment and the fierce reactions of Austrian and Belgian governments to previous judgements, the
ECJ is quite likely to take the second route, even though the opinion of AG Sharpston goes against
Belgium. As Garben puts it, ‘the fact that the general rule is student mobility does not mean that certain
exceptions should not be allowed. And in determining the scope of these exceptions, the ‘taxpayers
argument52’ as well as the ‘free-rider argument’53 could serve as a background, allowing the Court to
come to a more flexible approach to scrutinizing the justification of insufficient resources.’ 54
The outcome of Bressol & Chaverot is important not only for Belgium and Austria, but also for
other Member States. Belgian and Austrian ‘wrestling’ with the Commission are closely watched by
Denmark, which suffers a large medical student influx from Sweden (one third of students accepted in
2006 were Swedish, who find it easy to follow courses in Danish language)55 and seeks a solution in line
with EU law. Therefore, it seems that the Bressol & Chaverot judgment can be the shaping factor of quite
a few national education systems that are based on the right of free access to education at the moment.
49
Paras 128-131.
50
S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 19.
51
Ibid.
52 ‘Member States have the right to favour their nationals (to a certain extent) in educational matters, if only for the reason that they are residents
of the country where the taxes are raised that finance higher education;’ S. Garben, ‘The Belgian/Austrian Education Saga’ (2008)
(Harvard European Law Working Paper No. 01/2008), para 10.
53 ‘[S]tudents, fleeing numerus clausus, who would return to their Member State of origin to work after their studies, <...> would be able to reap
the benefits from publicly funded education provided in Austria by moving abroad to study, while not contributing to its financing via national
taxes nor ‘paying back’ by staying to exercise their professional life in the host State;’ S. Garben, ‘The Belgian/Austrian Education Saga’
(2008) (Harvard European Law Working Paper No. 01/2008), para 10.
54
S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 10.
55 H.
Spongenberg, ‘Denmark Seeks EU Help on Swedish
<http://euobserver.com/?aid=22184>, retrieved 20 August 2009.
Student
Influx’
(July
2006)
EU
Observer
7
It poses a danger that the free public education as it stands today may disappear from the European
Union.
These considerations aside, it is worth now asking a question what type of balancing exercise
will be employed by the ECJ in this pending case? Even more importantly, what will the ECJ have to
balance? In other words, are there tensions between free movement of persons and the social right to
access free education, or are there other types of tensions involved in Bressol & Chaverot? Before
attempting to answer these questions, let us have a look what tensions can be defined as ‘real’ tensions
in this context.
3
THE RIGHT TO EDUCATION AND FREE MOVEMENT OF PERSONS: ARE
THEY IN TENSION?
3.1
What ‘fundamental rights’?
Before commencing to discuss different types of tensions, I would like to identify what kinds of
‘rights’ these tensions could potentially involve. The evolution of the EU from an economic to a
political Union meant that economic freedoms, upon which it was based, gradually evolved into
fundamental rights, at least in the language of the ECJ.56 In its case law the Court never made a clear
distinction between economic freedoms and fundamental rights,57 even though it had plenty of chances
to do so before EU Charter became a legally binding set of fundamental rights in the EU. As Morijn
argues,58 the lack of Court’s initiative to do so may be explained by the fact that European trade lawyers
(as opposed to human rights lawyers) are more inclined to treat economic freedoms as fundamental
rights. Moreover, his argument goes, trade courts (and the ECJ started off as one of them) are usually
more likely to address and give more importance to economic freedoms.59
J. H. Gerards, ‘Fundamental Rights and Other Interests: Should it really Make a Difference?’ in E. Brems (ed), Conflicts
Between Fundamental Rights (Intersentia, Oxford 2008), p. 670. As an example Gerards considers the principle of equal pay for
men and women, which originally was inserted for economic reasons, but later interpreted by the ECJ as a fundamental
right, which has not only economic, but also a social purpose (see, e.g. cases 43/75 Defrenne [1976] ECR 455; C-50/96
Schröder [2000] ECR I-743;)
56
57 J. H. Gerards, ‘Fundamental Rights and Other Interests: Should it really Make a Difference?’ in E. Brems (ed), Conflicts
Between Fundamental Rights (Intersentia, Oxford 2008), p. 684.
58 J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of
Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts
Between Fundamental Rights (Intersentia, Oxford 2008), p. 593.
59 J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of
Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts
Between Fundamental Rights (Intersentia, Oxford 2008), p. 613.
8
Therefore, there has been a rising scholarly debate60 on whether conflicts of fundamental rights
and economic freedoms should be understood as conflicts of fundamental rights. If we hypothetically
agree that economic freedoms belong to the category of fundamental rights, then will rules of balancing
the two be similar to those adopted by human rights courts (ECtHR, for example)? In other words, it
would be incorrect to discuss the balancing between fundamental rights and economic freedoms
without first identifying what types of rights are involved.
The position seems to be that economic freedoms are not of the same nature as fundamental
human rights (including social rights). Economic freedoms are not universal (only valid within the EU)
and do not belong to any human being (European citizenship is necessary as a prerequisite to
entitlement to free movement rights). As I will show below, the types of competences given for the EU
in regards to economic freedoms and in regards to protecting equal right to education are not the same;
which suggests that these two categories are distinct. Zucca suggests that ‘fundamental rights, as a
family, have qualified priority over any other types of interests.’61 Lohse supports this position by
stating that the protection of human rights finds ‘justification in human dignity and the high value of
humanity as such.’ 62 Therefore, she claims, the individual economic freedoms are a spill-over of
Member States’ obligations to each other. For this reason, Kombos calls such fundamental rights that
result from the protection of economic freedoms as incidental.63
However, even though there seems to be an agreement on the different nature of fundamental
rights, there are attempts to reconcile them, especially when it comes to adjudicating between the two.
To this end, Gerards proposes 64 that the difference between fundamental rights and economic
freedoms at times is superficial, especially when there is a presumption to give higher importance either
to a certain economic freedoms, or a fundamental right. Instead, she suggests a new way of looking at
the two, which resonates with Morijn’s proposal for the ECJ not to address conflicts between
fundamental rights and economic freedoms, until ‘a clear common fundamental rights vocabulary has
60 See, for example, J. Krzemi ska-Vamvaka, ‘Free Speech Meets Free Movement – How Fundamental Really is
‘Fundamental’? The Impact of Fundamental Rights on Internal Market Law’ (2005) ZERP Discussion Paper 03/2005; M.
Avbelj, ‘European Court of Justice and the Question of Value Choices. Fundamental human rights as an exception to the
freedom
of
movement
of
goods’
(2004)
Jean
Monnet
Working
Paper
06/04
<http://centers.law.nyu.edu/jeanmonnet/papers/04/040601.pdf > retrieved 2 April 2010.
L. Zucca, ‘Conflicts of Fundamental Rights as Constitutional Dilemmas’ in E. Brems (ed), Conflicts Between Fundamental
Rights (Intersentia, Oxford 2008), p. 37.
61
E. J. Lohse, ‘Fundamental Freedoms and Private Actors - Towards an ‘Indirect Horizontal Effect’ (2007) 13(1) European
Public Law, p. 173-174.
62
63 C. Kombos, ‘Fundamental Rights and Fundamental Freedoms: a Symbiosis on the Basis of Subsidiarity’ (2006) 12(3)
European Public Law, p. 435.
64 J. H. Gerards, ‘Fundamental Rights and Other Interests: Should it really Make a Difference?’ in E. Brems (ed), Conflicts
Between Fundamental Rights (Intersentia, Oxford 2008), p. 686.
9
been articulated.’65 Morijn argues that fundamental rights protection must go hand-in-hand with the
protection of economic freedoms of the ‘individuals pursuing economic activity.’66
To conclude, there is no one voice in academic writing and in the Court’s practice whether
economic freedoms can be considered as part of the fundamental rights. In the next paragraph, I will
suggest that it may be more useful to consider tensions between free movement of persons and right of
equal access to free education as ‘norm v norm’ instead of ‘right v right’ debate.
3.2
How should we understand ‘real’ tensions in the context of EU law?
‘Real’ tensions can be understood when two norms of the same value conflict. The EU Charter
(which protects social rights, as well as the right to free movement of persons) is now legally binding
and has the same legal value as the Treaties,67 which allows us to presume that the right of equal access
to education and the right to free movement of persons are two norms of the same legal value (in
hierarchical terms). The Preamble of the EU Charter states (emphasis added):
Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values
of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the
rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the
Union and by creating an area of freedom, security and justice.
The Union contributes to the preservation and to the development of these common values while
respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national
identities of the Member States and the organisation of their public authorities at national, regional
and local levels; it seeks to promote balanced and sustainable development and ensures free movement of
persons, services, goods and capital, and the freedom of establishment.
Art 14(1) EU Charter states that ‘[e]veryone has the right to education and to have access to
vocational and continuing training’ (emphasis added). According to the Explanations relating to the
Charter of Fundamental Rights,68 Art 14 is based on the common constitutional traditions of Member
States and on Article 2 of the Protocol to the ECHR. It also extends to access to vocational and
J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of
Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts
Between Fundamental Rights (Intersentia, Oxford 2008), p. 614.
65
J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of
Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts
Between Fundamental Rights (Intersentia, Oxford 2008), p. 615.
66
67
Article 6(1) TEU.
68
Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/02.
10
continuing training, which is based on point 15 of the Community Charter of the Fundamental Social
Rights of Workers and Article 10 of the Social Charter.
Title V of the Charter entitled ‘Citizens' Rights‘ contains Art 45, which guarantees every EU
citizen’s right to move and reside freely within the territory of the Member States; the same Article
states that this right for nationals of third countries legally resident in the territory of a Member State
will be granted ‘in accordance with the Treaties’. In this way, the EU Charter codifies the right to free
movement of persons as a political right,69 which places it on equal footing in the Charter with the
social right to education.
Therefore, we could draw a conclusion that right of equal access to free education and the right
to free movement of persons are two norms of the same legal value. Both norms (Art 14 and Art 45 of
the Charter) are of the same legal ranking (the Charter has constitutional status together with TEU and
TFEU) and both aim to protect a certain individual interest in the context of European law. Both these
interests are economic. Therefore, it may be more correct to frame the question of tensions between
fundamental rights and economic freedoms as ‘norm v norm’ debate, instead of a ‘right v right’ debate.
The next task would be assessing whether there will always be ‘real’ tensions between these two
norms in general, and in Bressol & Chaverot in particular.
One could distinguish between types of scenarios when it comes to exercising the right of equal
access to education and where the economic freedoms of free movement may be engaged. The first
one is where education concerns free movement of persons. In most of the cases dealt with by the ECJ
the right of access to education involves education as a public service: funded by Member States from
public funds (even though part of the tuition fees may be paid by the student), when the purpose of
education is to fulfil social, cultural and educational goals of the society instead of seeking profit. In this
first scenario (education as a public service) the right to equal access to education would be supported
and enforced by free movement of persons, as well as non-discrimination on the grounds of nationality.
Therefore, there most likely will be no ‘real’ tensions between social right to equal access to education
and free movement of persons.
The second scenario involves those few cases, 70 where equal access to education can be
understood in the light of free movement of services or establishment. In other words, if education was
provided by a private equity seeking profit and not funded from public funds, a person who intends to
pursue this type of education will be considered a recipient of a service that would usually be provided
69 It is outlined in the Chapter called ‘Citizens' Rights’, which allows us to make an assumption that the right to free
movement of persons could be understood as a political right.
70 See the strand of cases where the ECJ considered whether education can be classed as a “service” within the meaning of
Art 56 TFEU (ex Art 49 EC): Case 263/86 Humbel & Edel [1988] ECR 5365; Case C-109/92 Wirth [1993] ECR I-6447;
Case C-153/02 Neri [2003] ECR I-13555.
11
under an agreement between a service provider (e.g. educational institute) and the recipient (e.g.
student). If we consider the type of education providers discussed in Neri,71 in the UK there are more
than 413 of such private colleges72 that are usually registered as private limited companies and provide
tuition only for the courses of the Universities that have degree awarding powers (University of
London External System, University of Trent, University of Wales are some of the most common
degree awarding bodies). Therefore, education in the second scenario (education as a private service) is
understood as a “service” within the meaning of Art 56 TFEU (ex Art 49 EC). The social right to equal
access to education here will be supported by free movement of services and the two will not be in
‘real’ tension.
Applying the above to Bressol & Chaverot it is clear that there are no ‘real’ tensions between the
right of equal access to education and free movement of persons in this case. On the contrary, it seems
that the ‘right’ to free movement of persons exercised by the applicants (i.e. EU nationals students)
enables them to claim the right of equal access to education in Belgium. The question then arises: why
is Bressol & Chaverot such a controversial case? Why are Member States waiting for the ECJ’s ruling with
anxiousness and (maybe) fear? In the next paragraph I will argue that the reasons for such a reaction
may be the existence of different (‘other’) types of tensions. In particular, we have in mind the eternal
debate and struggle for competences between Member States and the European Union.
3.3
Other types of tensions
As mentioned earlier, the Treaty competence to the EU to act in the area of education has been
granted by the Treaty of Maastricht. Therefore, such a competence has been granted for the EC only
less than twenty years ago. Maastricht also introduced the citizenship provisions, which gave a plethora
of case law from the ECJ promoting the right to free and equal access to education for EU citizens.73
According to Art 6 TEU (Lisbon), the Union’s competence in regards to education is
supportive of the Member States’ action in this area. This means that the Union has competence to
carry out actions to support, coordinate or supplement the actions of the Member States, without
thereby superseding their competence in regards to education. The EU can create legally binding acts in
this area but they ‘shall not entail harmonisation of member States’ laws or regulations’ so the carteblanche empowerment of the EU to create superior law that permanently pre-empts national law which
exists in areas of shared competence does not exist here. The Lisbon Treaty gives the EU the role of
71
C-153/02 Neri [2003] ECR I-13555.
72 According to British Accreditation Council data based on the number of fully accredited institutions <http://www.thebac.org/colleges/directory/ukdirectc.pl >, retrieved 2 April 2010.
73 For history and evolution of the EU’s right to education see G. Gori, Towards an EU Right to Education (Kluwer Law
International, Hague 2001).
12
supporting competence in several new fields including health, education, tourism, energy and sport. In
the areas of supporting competence, such as education, the EU has the power to ‘contribute to the
development of quality education by encouraging cooperation between Member States and, if necessary,
by supporting and supplementing their action, while fully respecting the responsibility of the Member
States for the content of teaching and the organisation of education systems and their cultural and
linguistic diversity.’74 This implies that there may be no harmonisation of the laws and regulations of the
Member States in the areas of supporting competence; the Union is only allowed to contribute by
adopt incentive measures (Art 165(4) TFEU). Therefore, most of social rights and economic
freedoms75 will not fall within the exclusive competence of the EU.
It is interesting to note that in order to protect social rights the Union has two types of
competence to act (shared76 and supportive)77, whereas for the protection of economic freedoms the
EU can exercise one type of competence (shared). This can be summarised by the scheme below:
EU Competence
Exclusive
Shared:
Supporting:
Internal market (freedoms);
Social security; Work
Health; Education
Therefore, one may argue that the competence given for the EU in regards to economic
freedoms and in regards to protecting equal right to education is not the same. This is another reason
why fundamental economic freedoms cannot be regarded at the same level and importance as
fundamental rights.
Bressol & Chaverot is an example of the competence struggle between Member States and the
EU, when the EU tries to regulate social rights (i.e. the right to equal and free education). Should the
ECJ uphold its decisions against Belgium and Austria, or should it consider a possibility for Member
States to justify the numerous clauses conditions that restrict equal access to free education? Will this
be another case in line with citizenship case law, upon which LTR TCNs’ right could be built, or will
this be a step back?
74
Art 165(1) TFEU.
The Union has a shared competence in matters related to internal market, which is based on the economic freedoms of
movement.
75
76
Art 4 TFEU.
77
Art 6 TFEU.
13
4
RIGHT TO EDUCATION AND TCNs: WHY EXCLUDE?
In Bressol & Chaverot there was no question about right holders involved; therefore, there was
no mention of the possibility or conditions upon which LTR TCNs’ right to education could be
exercised should a similar problem arise. However, I would like to complicate the discussion in
attempting to examine a possibility of a similar scenario where LTR TCNs’ right to education could be
at stake. This also due to the fact that after Commission v Austria judgement Austria left only 5% free of
charge places in Austrian medical schools for TCNs (see above), which may be regarded as hindering
LTR TCNs’ equal right to education. For this purpose, it is first relevant to outline the importance of
LTR TCNs in the EU. Further, I will then consider whether these right holders could be treated in the
same way as EU citizens in Bressol & Chaverot scenario (i.e. when they move in order to access free
education).
It is surprising that not many people know how greatly TCNs impact European societies and
economies. Vink provides some impressive numbers from 2003 (based on EU-15).78 According to this
data, Union citizens resident in a Member State other than their country of origin amounted to 6
million, whereas there were 13 million third country nationals (3.4% of the total EU population).
According to him, at the time in Germany alone there were almost three times more third country
nationals (6.7%) than Union citizens (2.3%). Next to demographic data, the EU has economic
problems that TCNs help solve. Legally resident and employed TCNs help to ease labour shortages,
supply skilled labour,79 and provide a counterbalance for the ageing of the EU population. LTR TCNs
directly contribute to the EU and Member States’ economies not only as tax payers, but also as
consumers of goods and services, as well as entrepreneurs. Ironically, more vulnerable80 TCNs (as
compared to the EU citizens) are still awarded less protection in terms of social rights, despite great
contributions81 and long-term commitment to the Single Market.
78 M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB
4, p. 9.
79 European Blue Card scheme is the outcome of the aim to attract the highly-skilled workers (especially engineers and
health care workers), which is so important that it is considered as a distinct policy of the EU in order to realise the
objectives of the Lisbon strategy: see I. Awad, ‘Labour Migration to the European Union: Reconciling Objectives of
Employment, Migration and Development Policies’ (Presentation at Conference on Strengthening EU Competitiveness - Potential
of
Migrants
in
the
Labour
Market,
Prague,
26-27
February
2009),
p.
2.
<http://www.mpsv.cz/files/clanky/6359/Ibrahim_Awad.pdf>, retrieved 1 April 2009.
Especially women, who are a majority of the immigrant population in the EU; see Commission (EC), ‘Third Annual
Report on Migration and Integration’ (Communication) COM (2007) 512 final 11 September 2007, p. 6. Next to this,
employment rates for non-EU national women are much lower than for non-EU national men; see F. Ramb, ‘LFS ad hoc
Module on Migrants and the Labour Market’ (Paper presented at 33rd CEIES Seminar Ethnic and Racial Discrimination on the
Labour
Market:
Measurement,
statistics
and
indicators,
Valletta,
Malta,
7-8
June
2007)
<http://epp.eurostat.ec.europa.eu/pls/portal/docs/PAGE/PGP_DS_CONFERENCES/PGE_CONFERENCES/PGE
_33CEIES/TAB73294116/2.3%20RAMB%20EN.PDF>, retrieved 21 February 2009, p. 3.
80
In January 2006, the third-country nationals residing in the EU-27 were about 18.5 million, i.e.3.8% of the total
population of almost 493 million; Press release IP/07/1314, ‘Strengthening and Monitoring Measures for Integration
Policies in the EU: the Commission Adopts the Third Annual Report on Migration and Integration’ RAPID (12 September
81
14
Therefore, it came as no surprise when in 1999 the European Council adopted the Tampere
Programme, which concentrated precisely on fair treatment of TCNs, legally residing within Member
States, by providing for an effective integration policy, which ‘should aim at granting them rights and
obligations comparable to those of EU citizens’.82 According to the Programme, legal status of TCNs
should be ‘approximated to that of Member States' nationals’,83 but not made the same. This political
initiative was followed by long-term residents Directive,84 family reunification Directive,85 and, most
recently, EU Blue Card Directive.86
However, despite these measures, the protection of LTR TCNs’ social rights remains unequal
with that of the EU citizens. Even more, EU law has created different categories of TCNs that enjoy
different legal status. These, as well as equality provisions, are discussed below in order to outline the
existing problem of protection of TCNs’ social rights (and the right to education) under EU law.
4.1
TCNs as European citizens?
It is true that Bressol & Chaverot did not deal with the right of equal access to free education of
TCNs: it was the EU citizens who filed the claim. However, with the growing percentage of population
of LTR TCNs in the EU (despite of many acquiring national citizenships), the likelihood for TCNs to
enforce their social rights (even if they are not always in tension with fundamental freedoms) becomes
apparent.
To this end, we should mention the growing call for the supra-national EU citizenship to be
used for granting LTR TCNs equal social rights with the EU citizens (some speak of inclusive,87 others
of residence based88 EU citizenship). The argument goes that it is no longer about exclusive social
benefits for the EU citizens: the legal initiatives and political will of the EU institutions proves the need
to protect LTR TCNs as a vulnerable part of the European society. By excluding LTR TCNs from EU
citizenship (and hence forming a separate “denizenship” instead), EU law tends to reinforce the idea
2007) <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1314&format=HTML&age>,
February 2009.
retrieved
82
Para 18.
83
Para 21.
84
Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003] OJ L16/44.
85
Directive 2003/86 on the right to family reunification [2003] OJ L251/12.
22
86 Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified
employment [2009] OJ L155/17. The Directive is to be implemented by Member states by by 19 June 2011.
87 See e.g. A. Beasley, ‘Caught Between History and Imagination: The Arguments for Post-National European Union
Citizenship’ (PhD Thesis, University of Pittsburgh 2007), <http://etd.library.pitt.edu/ETD/available/etd-04202007180919/unrestricted/Beasley2007.pdf>, retrieved 6 May 2008.
88 K. Rostek, G. Davies, ‘The impact of Union citizenship on national citizenship policies’ (2006) 10 EIoP
<http://eiop.or.at/eiop/index.php/eiop/article/view/2006_005a>, retrieved 9 May 2008, p 32.
15
that unequal treatment of EU citizens and LTR TCNs is justified. 89 Therefore, a closer political
integration in the area of the European citizenship would help to guarantee social rights to LTR TCNs
and to enhance free movement within the Single Market.
This argument is further strengthened by the fact that the active role of Member States in
immigration policies has led to the development of a sectoral approach to statuses of rights, which is
not acceptable:90 today there is one Directive for the free movement of EU citizens91 and another one –
for the free movement of long-term resident TCNs.92 The question then arises whether the protection
of the right to education is guaranteed to LTR TCNs in the same way as for EU citizens under
secondary legislation?
As for EU citizens, Recital 20 of the Preamble to Directive 2004/28 guarantees ‘equal
treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are
expressly provided for in the Treaty and secondary law’ (emphasis added). The areas where this equality
is guaranteed include equal treatment when exercising the right of equal access to free education (e.g.
Bressol & Chaverot scenario), as it is guaranteed under EU law.
As far as TNCs are concerned, equal treatment with nationals under EU law is only available to
those TCNs who are family members of EU citizens and ‘have the right of residence or permanent
residence.’93 As for other categories of TCNs, Article 11(1)(b) of Directive 2003/109 provides that LTR
TCNs shall ‘enjoy equal treatment with nationals as regards education and vocational training, including
study grants in accordance with national law’ (emphasis added). In other words, the importance of
Member States’ national laws is much higher when it comes to regulating LTR TCNs’ rights to
education, as compared to EU citizens’ rights. Another difference in protection can be read from
Recital 14 of the Preamble to Directive 2003/109, which calls for ‘access for [TNCs] minors to the
educational system under conditions similar to those laid down for their nationals’ (emphasis added).
From this it follows that the language of the Directive is confusing: one is left to wonder whether
‘equal’ status means the same as ‘similar’ status when it comes to protecting LTR TCNs’ right to
89 H. Oger, ‘Stratified EU denizenship revolving around EU Citizenship: Bridging or restructuring the gap?’ (Paper for
WP39: Midterm Conference: European Citizenship – Challenges and Possibilities, Roskilde, Denmark, 3-6 June 2007)
<http://cinefogo.cuni.cz/getfile.php?&id_file=166>, retrieved 5 May 2008, p. 5.
90 H. Oger, ‘Stratified EU denizenship revolving around EU Citizenship: Bridging or restructuring the gap?’ (Paper for
WP39: Midterm Conference: European Citizenship – Challenges and Possibilities, Roskilde, Denmark, 3-6 June 2007)
<http://cinefogo.cuni.cz/getfile.php?&id_file=166>, retrieved 5 May 2008, p. 2.
91 Directive (EC) 2004/58 of 29 April 2004 on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC [2004] OJ L229/35.
92
Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003] OJ L016/44.
93 Art 24(1) of Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003] OJ
L16/44.
16
education? Therefore, we see that there are at least two differences from EU citizen status and the right
to education that are not applied for LTR TCNs: firstly, the different source of law under which the
right to education is protected (EU law provisions for EU citizens; EU and national law provisions for
LTR TCNs); secondly, the long-term resident TCNs Directive falls short of guaranteeing equal
treatment of LTR TCNs in regards to right to education and only provides for a ‘similar’ treatment with
EU citizens.
To conclude, if the calls for inclusive EU citizenship may succeed, they will most certainly face
difficulties when it comes to guaranteeing equal social rights for EU citizens and LTR TCNs. In other
words, in order to be able to award a “free standing” EU citizenship to LTR TCNs, the EU and
Member States first have to guarantee that social rights, which are inherent in social citizenship, are
enforced and guaranteed in the same manner for both categories of rights holders. In my view, this
would be quite difficult to achieve, but possible if concentrating of introducing equal treatment through
equality provisions in the secondary law and EU treaties. Therefore, I would argue for a gradual
bottom-up approach through equal treatment in order to achieve an inclusive European citizenship and
to guarantee the right to education for both EU citizens and LTR TCNs. Some of its aspects will be
discussed in the following paragraph.
4.2
Non-discrimination: different regimes for different categories of TCNs
Vink outlines three main categories of TCNs that enjoy different legal protection of social
rights under non-discrimination on the ground of nationality clauses. First, those who are family
members of EU citizens: they ‘enjoy a full right to equal treatment’ when it comes to social right to
education.94 Second, citizens of member countries to the Agreement on the European Economic Area
(EEA) enjoy a very similar protection to that of EU citizens, as the Agreement ‘copies the provisions
effective under the EC Treaty’ on non-discrimination on the grounds o nationality.95 Third, nationals
from accession states (Turkey, Croatia, Former Yugoslav Republic of Macedonia) and Maghreb
countries (Morocco, Tunisia and Algeria) derive free movement rights from ‘a myriad of provisions
based on the wording in different Agreements ... and especially on the rulings by the ECJ in individual
cases’96 on specific implementation measures, and especially on the rulings by the ECJ in individual
cases.
M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB
4, p. 10.
94
95 M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB
4, p. 10.
96 Stabilisation and Association Agreement between the European Communities and Their Member States and the Republic
Of Croatia [2005] OJ L26/3.
17
TCNs’ entitlements to equal treatment depend on the ground of equality in question. As for
non-discrimination on the grounds on nationality, Vink correctly provides:97
Yet it is clear that none of the Association Agreements gives individuals a right to equal treatment
equivalent to the categorical prohibition of discrimination on grounds of nationality for Union citizens
under Article 12 TEC.98 The most far-reaching regime applies to Turkish workers under Article 12 of
the Turkey Association Agreement, which binds the contracting parties to 'the purpose of progressively
securing freedom of movement for workers between them.' The equal treatment of Turkish workers and
their family members is, however, only secured in as far as they are already integrated into the labour
force of their host member state.
Therefore, as law stands today the right not to be discriminated against on the ground of nationality can
only be claimed by EU citizens and in very limited cases by TCNs: those Turkish nationals, who are
integrated into labour force of their Member State of residence.
Are there any other grounds of non-discrimination that LTR TCNs could rely on?
Unfortunately, next to the Art 14 of the EU Charter99 and the loose formulation of equal treatment
under long-term residents,100 LTR TCNs cannot rely on the Employment Equality Directive101 or the
Racial Equality Directive.102 Articles 3(2) of both Directives contain a formulation, which specifically
excludes them from the scope of the legislation (emphasis added):
This Directive does not cover difference of treatment based on nationality and is without prejudice to
provisions and conditions relating to the entry into and residence of third-country nationals ... on the
territory of Member States, and to any treatment which arises from the legal status of the third-country
nationals...
Overall, the equality enforcement for LTR TCNs does not look too promising: their legal status
remains dependent on which category of TCNs they belong (EU citizens’ family members EEA
nationals or nationals of accession states or Maghreb countries). This secondary legislation does not
enable them to file a claim neither against a public or private education provider; LTR TCNs’ social
rights are not guaranteed by the Treaties, either. The only hope at present seems to be Art 14 of the EU
97 M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB
4, p. 10.
98
Now Article 18 TFEU.
99
Which guarantees right to education for ‘everyone’; see above.
100 Recital 5 of the Preamble of Directive 2003/109 provides: Member States should give effect to the provisions of this Directive
without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other
opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation.
101 Directive 2000/78 establishing a general framework for equal treatment in employment and occupation [2000] OJ
L303/16.
102 Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin
[2000] OJ L180/22.
18
Charter, which only recently became legally binding due to entry of the Treaty of Lisbon on 1
December 2009.
5
CONCLUSION
Looking at Bressol & Chaverot we could identify balancing at two dimensions. The first
dimension is the tension between social rights and economic freedoms. The problems faced here are
twofold: first, whether free movement of persons could be understood as a fundamental right of the
same value as the right to equal access to free education. It is concluded that because both - the right to
equal access to free education and free movement of persons – are embedded in the EU Charter
(which is a constitutional document). Second, whether both may come to be in ‘real’ tensions depends
if they clash or contradict with each other. Therefore, ‘real’ tensions in most cases are rare and are also
absent in Bressol & Chaverot.
The second dimension is rotted in the eternal debate of EU competence versus (economic
integration) v Member States competence. In other words, when it comes to securing social rights (the
right to equal access to free education being one of them), this touches on demarcation of shared and
supporting competences which presume co-action of Member States and the EU in the field of
education. Therefore, even though there are not ‘real’ tensions in Bressol & Chaverot, the case is a great
example of the power struggle between the EU and Member Sates when it comes to protecting social
right to equal access to education. The outcome of the case will be relevant not only for Austria and
Belgium, who have already faced the problem, but also for Denmark, which suffers a large medical
student influx from Sweden. To this end, one cannot help noticing that in cases like Bressol & Chaverot
the role of the ECJ becomes of crucial importance. It is not the first time since Van Gend en Loos that
the Court delivers unexpected judgements, but ‘[i]t is the ECJ who carries the difficult task to referee in
the power struggle between the Community and its Member States.’103 As AG Sharpston puts it: 104
It is ... inevitable that the Court will continue to have to deal with cases which are ever further removed
from its original area of expertise as the court of an economic community. ... The root fact is that
“political compromise breads ambiguity”, and it is this ambiguity which creates the raw material which
must eventually be ruled upon by the ECJ.... In cases where the legislator has not made a choice (possibly
due to the need for compromise) then the ECJ is obliged to adjudicate.
103
S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 5.
The European Circuit of England & Wales, Summary of Keynote Speech by AG E. Sharpston, ‘A year is a Long Time at
the ECJ’, delivered at the European Circuit Annual Conference European & International Practice – Contrasts & Comparisons
from
Regional
Bars
(Brussels,
16-18
October),
paras
4-6
<http://www.europeancircuit.com/files/54/Summary%20of%20Keynote%20Speech%20%20Eleanor%20Sharpston,%20QC%20Advocate%20General%20of%20the%20ECJ.pdf>, retrieved on 8 September 2009.
104
19
Finally, speaking of the possibilities for LTR TCNs to claim social right to equal access to
education, the present and near future does not seem bright for these right holders. The reality where
LTR TCNs are unable to challenge infringements of the social right to equal access to education (when
relying on equal treatment provisions) leads us to the conclusion: despite the fact that numerous
clausus imposed by Member States may have an impact on TCNs’ equal right to free education, TCNs
will not be able to file a claim in the same way as EU citizens have done in Bressol & Chaverot. This
leaves the enforcement of the right to education only in the hands of the Member States, the EU (most
likely the Commission) and European citizens. In no way we could call such a protection of
fundamental rights effective.
Therefore, one can only hope that the EU/Member States’ power balance which will be judged
by the ECJ in Bressol & Chaverot will enable the EU to protect not only citizens’, but also TCNs’ equal
right to free education in the most effective manner. This may be even easier to achieve in the cases,
where there is no need to consider any tensions between social rights and economic freedoms.
20