Europeanisation by Stealth? A political science perspective on the role of the European Court of Justice in the Europeanisation of higher education Eric Beerkens Nuffic 31 st EAIR Forum, September, Vilnius 1

Argument: Although the authority over higher education policy and legislation resides firmly within the hands of the nation states, we can observe a gradual shift of authority towards the European level. One of the most important - and underestimated - institutions at the supranational level is the European Court of Justice.  Policy making by case law undermines the legitimacy and the popular support of European integration by bypassing democratic bodies  Expansive interpretation of European Law – especially the application of the Non Discrimination Principle – can have profound implications for national policies on access to and funding of higher education.  These profound implications are not addressed sufficiently – or even ignored – in the discussions on the European Higher education Area. 2

European Law & European HE  Primary legislation:  Treaty articles on HE:  No provisions on HE until Maastricht Treaty in 1992  Art 128 on Vocational Training applicable after Gravier but cautiously used  More activity in Secondary Legislation  Recognition of qualifications  Education of children of migrant workers  Right of Residence for Students  Admission of third country nationals for studies or research 3

European Law & European HE  Primary legislation:  Treaty articles on HE:  No provisions on HE until Maastricht Treaty in 1992  Art 128 on Vocational Training applicable after Gravier but cautiously used  More activity in Secondary Legislation  Recognition of qualifications  Education of children of migrant workers  Right of Residence for Students  Admission of third country nationals for studies or research 4 Article The Community shall contribute to the development of quality education by encouraging co-operation 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 organization of education systems and their cultural and linguistic diversity. 2.Community action shall be aimed at: developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States; encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods of study; promoting co-operation between educational establishments; developing exchanges of information and experience on issues common to the education systems of the Member States; 3. …. Article The Community shall contribute to the development of quality education by encouraging co-operation 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 organization of education systems and their cultural and linguistic diversity. 2.Community action shall be aimed at: developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States; encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods of study; promoting co-operation between educational establishments; developing exchanges of information and experience on issues common to the education systems of the Member States; 3. ….

European Law & European HE Regulations and Directives in Force in Education, Training and Science, (Beerkens, 2008) 5

Case Law of the European Court of Justice (Adapted from Beerkens, 2008) 6

ECJ Case law in 4 domains 1.Recognitions of qualifications 2.The right to education of children of migrant workers 3.Definitional issues and access to education 4.The non discrimination provision and the notion of European Citizenship a)Maintenance grants & social benefits b)Access to higher education institutions 7

1: Recognitions of qualifications  1960s/1970s: ECJ based its rulings on general principles of community law  Late 1970s: first sectoral directives were issued on the recognition of qualifications (nurses, veterinarians, architects, etc.)  2005: Directive 2005/36 EC, replacing the sectoral directives. Transposed in national law in 2007: 2005/36 EC obliges Member States to consider the qualifications acquired elsewhere in the Community to allow access to a regulated profession in their territory.  ECJ cases expected mainly on incomplete transposition into national law. 8

2: Right of education of (children of) migrant workers Regulation (EEC) No 1612/68 of the Council on freedom of movement for workers, in particular articles 7 and 12 Relevant ECJ Rulings on Article 7 (on the rights of migrant workers): Case C-39/86 Lair [1989]; Case C-197/86 Brown [1988]; Case C-235/87 Matteucci [1988]  Grants should be made available to workers pursuing vocational courses as a social advantage under article 7 Relevant ECJ Rulings on Article 12 (on children of migrant workers): Case C-9/74 Casagrande [1974]; Case C-68/74 Alaimo [1975]; Case C-389/87 Echternach and Moritz [1989]; Case C-263/86 Humbel [1988]; Case C-308/89 di Leo [1990]  All forms of education are covered by this article and discrimination to access in education is forbidden. Children must furthermore not be subject to discrimination in relation to maintenance grants. 9

3: Definitional issues and access to education Definition and scope of ‘ vocational training ’ in article 128 EEC In the Gravier Case (1985) the Court defined vocational training as “any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and the level of the training of the pupils or students, and even if the training programme includes an element of general education.” Further refined in cases: Case C-309/85 Barra [1988]; Case C-263/86 Humbel [1988] Case C-308/89 di Leo [1990]; Case C-24/86 Blaizot [1988] Although the Commission argued that all university education was vocational, the Court implicitly rejected this in its Blaizot judgement. 10

3: Definitional issues and access to education Can education be seen as a commercial service and therefore be subjected to the services provisions of the treaty? Gravier Case: Education is not a service and does therefore not fall under article 49 (ex 59) Further refinement in other cases: Wirth Case [1993]:  Publically funded educational establishments are not covered by the service provisions  Courses of higher education provided essentially out of public funds do not constitute services in the meaning of the Treaty Neri Case [2003]:  A course of education that is funded essentially out of private funds and where the education institute seeks to make a profit, is a service of an economic nature (and falls within the scope of art. 49 (ex 59))  This also applies where a private institution is performing tasks for a university recognised to award degrees 11

4: The non discrimination provision and the notion of European Citizenship Gravier Case: Principle of non discrimination (art 12) applies to policies on access to vocational training and social advantages  NDP empowers individuals but can severely impact national competences.  If discrimination on the basis of nationality is not allowed, does any European citizen (irrespective of nationality) have the right to: a) Receive maintenance grants & social benefits? (Grzelcyk; Bidar; Förster, Commission v Netherlands) b) Access HE Institutions? (Commission vs Austria; Commission vs Belgium) 12

4a: The non discrimination provision and the notion of European Citizenship Bidar Case: It was unlawful to deny French citizen Dany Bidar access to student loans for maintenance purposes during his studies at the University College London. However it is legitimate for a Member State to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State… …so students don’t pose “an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State” 13

4a: The non discrimination provision and the notion of European Citizenship Förster Case: ECJ Ruling:  Non Discrimination Principle is applicable  5 year period is an appropriate measure and also proportionate (contrary the AG) EC Letter of Formal Notice to Netherlands: Dutch regulation: Only students that have lived for three of the past six years in the Netherlands are eligible for portable student support European Commission: this criterion is a form of indirect discrimination 14

4b: The non discrimination provision and the notion of European Citizenship Commission vs Austria : ECJ (2006): Austrian requirements are illegal. Discrimination on the basis of nationality. The same day, Austrian authorities introduced new measure: 75% of the places in Austrian Medical schools reserved for students who finished their secondary education in Austria. EC (LoFN; January 2007): this has a greater effect on national of other member states than on Austrian nationals: new measure is not justified “Commission is jeapordizing the Australian health system” November 2007: case suspended and Austria was given more time to provide additional data  ‘Deal’ in the context of the Lisbon Treaty negotiations (December 2007) 15

4b: The non discrimination provision and the notion of European Citizenship Reactions from legal experts Lonbay (reacting on the Austria case and the – slightly similar – case Commission vs Belgium): Case makes clear that “ - although competency still lies in the Member states – European Law can nevertheless pack a considerable punch at how states can organise and fund access to higher education” Rieder argues that: “It is necessary for member states to become aware of the fact that in a common market, where people move around, it will always be the case that a Member State pays for a person’s education without necessarily harvesting the fruit.” 16

The ECJ and European Higher Education So what is the problem?  Legitimacy: when policy becomes defined by case law, policy making is taken out of the democratic domain  Policy complexity: policy making not based on objectives & interests  Sustainability problem: is the principle of non discrimination sustainable in a polity based on national sovereignty and national tax systems?  Popular support problem: interference in education might lead to further crumbling of popular support for the European Union and therewith have an adverse effect 17