The Court of Justice of the European Communities has found that the Austrian legislation on admission to higher and university education is discriminatory based on nationality and is contrary to the EC Treaty concerning vocational training.

As an emergency measure, the Austrian parliament has taken the position of allowing a limit on the number of study places (via entrance exams or objective selection procedures during the course of study) in the German Numerus Clausus disciplines of:

• Medicine
• Dentistry
• Veterinary science
• Pharmacy
• Biology
• Psychology
• Business and communication studies (limitation unlikely beyond 2005)

Due to a linguistic relation, there are fears of a massive flood of some 60.000 German students into Austria who did not get access to particular courses.  The Austrian Ministry for Education, Science and Culture calmed fears of Austrian students stressing that there are only estimations as to the numbers of students who may enter Austria and that only six courses of study will be affected by the imposed limitation of study places. The other 160 study choices offered by Austria will not have these limitations. For the longer term, the Austrian Parliament is opening dialogue at the European level with a special focus on Germany to find a solution to the admissions of mobile students.

The Court found that the admissions legislation of Austria adversely affects students from other Member States more than Austrian students and therefore leads to indirect discrimination on grounds of nationality. That discrimination could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions. Two key points by the Court were:

• Excessive demand for access could be met by the adoption of specific non-discriminatory measures (an entry examination or the requirement of a minimum grade).
• The possibility for a student from the European Union, who has obtained his secondary education diploma in a Member State other than Austria, to gain access to Austrian higher or university education under the same conditions as holders of diplomas awarded in Austria constitutes the very essence of the principle of freedom of movement for students guaranteed by the EC Treaty.

Based on these key findings and others, the Court held that the indirect discrimination is not justified and declared that Austria has failed to fulfil its obligations under the principles of the EC Treaty.