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
31st EAIR Forum, September, Vilnius
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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.
2

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.
European Law & European HE
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
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
European Law & European HE
126 legislation:
 Article
Primary
Treaty
articlesshall
on HE:
1. The
Community
contribute to the development of quality
education
by encouraging
co-operation
betweenTreaty
Member
 No provisions
on HE
until Maastricht
in States
1992 and, if
necessary,
by supporting
and Training
supplementing
their action,
while fully
 Art 128
on Vocational
applicable
after Gravier
but
respecting the responsibility of the Member States for the content of
cautiously used
teaching and the organization of education systems and their cultural
and linguistic diversity.

More activity in Secondary Legislation
2. Community action shall be aimed at:
 Recognition of qualifications
• developing the European dimension in education, particularly
 Education
of children
of migrant workers
through
the teaching
and dissemination
of the languages of the
Member
States;
 Right
of Residence for Students
• encouraging mobility of students and teachers, inter alia by
 Admission of third country nationals for studies or research
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. ….
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European Law & European HE
Regulations and Directives in Force in Education, Training and Science, 1970-2005
(Beerkens, 2008)
5
Case Law of the European Court of Justice
# of ECJ Cases on HE related issues
70
60
50
40
30
20
10
0
1965
1970
1975
1980
1985
1990
1995
2000
2005
(Adapted from Beerkens, 2008)
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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
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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.

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ECJ cases expected mainly on incomplete transposition into national law.
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.
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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.
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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)
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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
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)
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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”
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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
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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)
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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.”
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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
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