Although education remains the prerogative of member states, the European Court of Justice still has significant power in this area, acting to prevent discrimination on nationality grounds and to guarantee free movement of students within the EU.
After the European Commission had decided to suspend its ongoing infringement cases over university quotas against Austria and Belgium (for further reference, please read the December 2007 edition of ACA Newsletter – Education Europe
), the court has given, through the opinion of the Advocate General in the more recent Jacqueline Förster vs IB-Groep
case, a preliminary answer to a key issue: To what extent are foreign students entitled to equal rights as national students?
The answer refers to a similar case in 2005, in which the court ruled that foreign students who “have demonstrated a certain degree of integration in the society of that state” should have the same rights as national students
. Member states translated this into five years of residency in the host country, before foreign students are granted equal rights. Building on this interpretation, the Advocate General in the Förster case argues that “the condition imposed may not be so general in scope that it systematically excludes students, regardless of their actual degree of integration into society, from being able to pursue their studies under the same conditions as nationals of the host Member State. In other words, the criterion used must still be indicative of the degree of integration into society […]. That is not the case with a five-year residence requirement, since it can reasonably be assumed that a number of students may have established a substantial degree of integration into society well before the expiry of that period”.
The final judgement of the court, which should follow the Advocate’s General opinion, might largely determine to what degree member states can protect their generous grant schemes from what some mischievously describe as scholarship tourism.
European Court of Justice