Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2009:396
• Docket Number: C-73/08
• Date: 25 June 2009
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 25 June 2009 (1)

Case C‑73/08

Nicolas Bressol and Others

and

Céline Chaverot and Others

v

Gouvernement de la Communauté française

(Reference for a preliminary ruling from the Cour constitutionnelle (Belgium))

(Higher education – Public health – Numerus clausus – Residence requirement – Equal treatment – Principle of non‑discrimination – Justifications)

1. Students have wanted to pursue (part of) their education outside their country of origin throughout a significant part of European history. (2) This reference raises, not for the first time, the question whether the host State can limit the number of foreign students that may enter its education system.

2. In this reference from the Cour constitutionnelle (Constitutional Court) (Belgium), the Court is asked to interpret the first paragraph of Article 12 and Article 18(1) EC, in conjunction with Article 149(1), the second indent of Article 149(2) and the third indent of Article 150(2) EC.

3. The case before the national court concerns an action for annulment brought by a number of students, the majority of whom are French, and by teaching and administrative staff of institutions of higher education of the Communauté française de Belgique (French Community of Belgium; ‘the French Community’) against the 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; ‘the Decree’) adopted on 16 June 2006 by the Parlement de la Communauté française de Belgique (Parliament of the French Community of Belgium). (3)

Legal framework

International law

4. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (4) provides:

‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to … national or social origin …’

5. Article 13(2)(c) of the ICESCR provides:

‘The States Parties to the present Covenant recognise that, with a view to achieving the full realisation of [the right of everyone to education]:

…

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

…’

Community law

6. Article 2 EC provides:

‘The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community … economic and social cohesion and solidarity among Member States.’

7. Article 10 EC provides:

‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.

They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’

8. Article 12(1) EC provides:

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

9. Article 18(1) EC provides:

‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.’

10. Article 149(1) and (2), second indent, EC provides:

‘1. The Community shall 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.

2. Community action shall be aimed at:

…

– encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,

…’

11. The third indent of Article 150(2) EC provides:

‘Community action shall aim to:

…

– facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,

…’

National law

12. By its Article 1, the Decree defines who qualifies as a resident student for the purpose of the Decree: (5)

‘A resident student for the purposes of this decree is a student who, at the time of his registration in an institution of higher education, proves that his principal residence is in Belgium and that he fulfils one of the following conditions:

1° he has the right to remain permanently in Belgium;

2° he has had his principal residence in Belgium for at least six months prior to his registration in an institution of higher education, at the same time carrying on a remunerated or unremunerated professional activity or benefiting from a replacement income granted by a Belgian public service;

3° he has permission to remain for an unlimited period [in Belgium] on the basis of [the relevant Belgian legislation];

4° he has permission to remain in Belgium because he enjoys refugee status [as defined by Belgian legislation] or has submitted a request to be recognised as a refugee;

5° he has the right to reside in Belgium because he benefits from temporary protection on the basis of [the relevant Belgian legislation];

6° he has a mother, father, legal guardian, or spouse who fulfils one of the above conditions;

7° he has had his principal residence in Belgium for at least three years at the time of his registration in an institution of higher education;

8° he has been granted a scholarship for his studies within the framework of development cooperation for the academic year and for the studies for which the request for registration was introduced.

The “right to remain permanently” within the meaning of paragraph 1, 1°, means, for citizens of another Member State of the European Union, the right recognised by virtue of Articles 16 and 17 of Directive 2004/38/EC [(6)] [and], for citizens of non-Member States, the right to reside in Belgium by virtue of [the relevant Belgian legislation].’

13. Chapter II of the Decree contains provisions in relation to access to universities. Article 2 limits the number of students enrolling for the first time in a university in the French Community in a course listed in Article 3, according to the method set out in Article 4.

14. Article 3 of the Decree provides that the provisions of Chapter II apply to courses leading to bachelor’s degrees in physiotherapy and rehabilitation and in veterinary medicine.

15. Article 4 of the Decree provides as follows:

‘For each university and for each course referred to in Article 3, there will be a total number “T” of students enrolling for the first time in the relevant course and who are taken into account for the purposes of financing, as well as a number “NR” of students enrolling for the first time in the relevant course and who are not considered to be resident within the meaning of Article 1.

When the ratio between NR, on the one hand, and T of the previous academic year, on the other hand, reaches a specified percentage “P”, the academic authorities shall refuse further registration to students who have not yet been enrolled on the relevant course and who are not considered to be resident within the meaning of Article 1.

P in the previous paragraph is fixed at 30 percent. However, when, in a particular academic year, the number of students studying in a country other than in the one where they have obtained their secondary school diploma is above 10 percent on average in all the higher education establishments of the European Union, P equals, for the next academic year, that percentage multiplied by 3.’

16. Article 5 of the Decree provides as follows:

‘[1] … students who are not considered to be resident within the meaning of Article 1 may apply for registration in a course listed in Article 3 at the earliest three working days before 2 September preceding the relevant academic year. Students … will be enrolled on a first come, first served basis.

…

[3] Each application for registration lodged starting from the 2 September preceding the academic year pursuant to the first paragraph will be recorded in a register …

[4] By derogation from the first paragraph, as regards non-resident students who present themselves in order to lodge an application for registration in one of the courses referred to in Article 3 at the latest on the last working day before the 2 September preceding the academic year, if the number of those students who have so presented themselves exceeds NR as referred to in Article 4, paragraph 2, the priority [for the purposes of enrolment] as between those students will be determined by drawing lots…

[5] Every non-resident student may only lodge one application for registration in respect of the courses referred to in Articles 3 and 7 before the 2 September preceding the academic year. Students infringing this provision will be excluded from the higher education institution to which they would have been admitted in order to follow one of the courses referred to in Articles 3 or 7.

…’

17. Chapter III contains provisions relating to schools of higher education. The first paragraph of Article 6, and Articles 8 and 9 (which form part of that chapter) contain provisions analogous to the first paragraph of Article 2, and Articles 4 and 5.

18. Article 7 of the Decree applies the provisions of Chapter III to courses leading to bachelor’s degrees in midwifery, occupational therapy...