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FIGHT AGAINST DISCRIMINATION : ECJ: BELGIUM SHOULD JUSTIFY CURB ON FOREIGN STUDENTS.

In principle, a member state may not limit the enrolment of non-resident students unless doing so is warranted under the objective of protecting public health, ruled the EU Court of Justice, on 13 April.

THE CASE

Due to a significant increase in the number of students from other member states enrolling in its institutions of higher education, in particular in nine medical and paramedical curricula, the French Community of Belgium adopted a decree in 2006 that obliges universities and schools of higher education to limit the number of non-resident students in these branches to 30% of all enrolments in the previous academic year. Once that percentage has been reached, the non-resident students are selected, with a view to their registration, by drawing lots. The students concerned took legal action for annulment of the decree and the Belgian Constitutional Court referred questions to the EU Court of Justice concerning the compatibility of this measure with EU law.

UNEQUAL TREATMENT

The court held that the legislation in question creates a difference in treatment between resident and non-resident students that constitutes indirect discrimination on the ground of nationality, which is prohibited by EU law unless objectively justified. Belgium justified this unequal treatment in the light of the French Community's method of financing its higher education system and the risks of an excessive burden being placed on this financing. The court found these arguments inadmissible. However, according to established case law, such inequality can be justified by the objective of maintaining a balanced high quality medical service open to all, in so far as it contributes to achieving a high level of protection of public health.

RISKS TO PUBLIC HEALTH

The EU judges ruled that it is for the national court to assess the facts of the case and interpret the national legislation to determine whether and to what extent such legislation satisfies that condition. The court explained that it is for the referring court to establish an objective, detailed analysis, supported by figures, demonstrating that there are genuine risks to public health. Once the risks have been demonstrated, it must assess whether the legislation in question can be considered appropriate for attaining the objective of protecting public health. Lastly, it must determine whether the general interest objective could be attained by other less restrictive measures.

The judgement is available at www.europolitics.info > Search = 270204

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Publication:European Report
Date:Apr 14, 2010
Words:392
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