Brussels, 13/04/2010 (Agence Europe) - European Union law precludes, in principle, a limitation on enrolment by non-resident students in certain university courses in the public health field. However, such a limitation is compatible with European Union law if proved justified with regard to the protection of public health. That is the substance of the judgment delivered by the EU Court of Justice on Tuesday 13 April in a case which brought Nicolas Bressol and others and Céline Chaverot and others against the Government of the French Community of Belgium.
For some years, the French Community of Belgium has noted a significant increase in the number of students from other member states, in particular France, enrolling in its institutions of higher education, in particular in nine medical or paramedical courses. Taking the view that the number of such students attending those courses had become too large, the French Community adopted the decree on 16 June 2006, according to which universities and schools of higher education are obliged to set a limit on the number of students not considered as resident in Belgium who may register for the first time in one of those nine courses. In principle, the total number of non-resident students is limited, for each university institution and for each course, to 30 % of all enrolments in the preceding academic year. Once that percentage has been reached, the non-resident students are selected, with a view to their registration, by drawing lots. In that context, the Belgian Constitutional Court, before which an action was brought seeking annulment of the decree, submitted questions to the Court of Justice for a preliminary ruling.
In the judgment handed down on Tuesday, the Court holds that the legislation in question creates a difference in treatment between resident and non-resident students. Such a difference in treatment, it says, constitutes indirect discrimination on the grounds of nationality. The Court says, too, that, in the light of the method of financing of the system of higher education of the French Community of Belgium, the fear of an excessive burden on the financing of higher education cannot justify that unequal treatment. However, it follows from case-law that a difference in treatment based indirectly on nationality may 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 health. Thus, it must be determined whether the legislation at issue is appropriate for securing the attainment of that legitimate objective and whether it goes beyond what is necessary to attain it. In that regard, the Court decided it is ultimately for the national court to determine whether and to what extent such legislation satisfies those conditions.
In the first place, it is for the referring court, after rigorous assessment, to establish that there are genuine risks to the protection of public health given that it cannot be ruled out that a limitation of the total number of students in the courses concerned may reduce, proportionately, the number of graduates prepared in the future to ensure the availability of the service in the territory concerned, which could then have an effect on the level of public health protection.
In the second place, if the referring court considers that there are genuine risks to the protection of public health that court must assess whether the legislation at issue in the main proceedings can be regarded as appropriate for attaining the objective of protecting public health. In that context, it must, in particular, assess whether limiting the number of non-resident students can really bring about an increase in the number of graduates ready to ensure the future availability of public health services within the French Community.
Finally, in the third place, it is for the referring court to ascertain whether the objective in the public interest invoked could not be attained by less restrictive measures which aim to encourage students who undertake their studies in the French Community to establish themselves there at the end of their studies or which aim to encourage professionals educated outside the French Community to establish themselves within it. Equally, it is for the referring court to examine whether the competent authorities have reconciled, in an appropriate way, the attainment of that objective with the requirements of European Union law and, in particular, with the opportunity for students coming from other member states to gain access to higher education. The restrictions on access to such education, introduced by a member state, must therefore be limited to what is necessary in order to obtain the objectives pursued and must allow sufficiently wide access by those students to higher education, the Court says. In that regard, it is for the referring court to ascertain whether the selection process for non-resident students is limited to the drawing of lots and, if that is the case, whether that means of selection based not on the aptitude of the candidates concerned, but on chance, is necessary to attain the objectives pursued. (O.L./transl.rt)