Eu Law

In 1957, the EEC was created under the Treaty of Rome, its primary objectives involving economic integration. Education did not fall within the scope of such integration, its only relevance being in regard to vocational training under article 128 of the Treaty. Where such training would aid the development of the nation's economy and the common market. It was not until the TEU in 1992 that education was given a Treaty basis under the EC Treaty (article 126-127). During the intervening period, the activism of the European Court of Justice resulted in an 'education policy', albeit only where access and treatment was involved.

Under article 128 of the EEC Treaty, the Council was to lay down general guidelines for the implementation of a "common vocational training policy". The council was seen to use a series of soft law to regulate the area of education. Council regulation 1612/68 granted clear and express rights concerning equality of access and treatment in education of immigrant workers and their children. This though was limited in scope due to the many students within the Community who did fall under the ambit of the regulation.

Despite such manifest restrictions, the Court interpreted vocational training widely, thus increasing the jurisdiction of the Community in this area. In Casagrande1, the child of an immigration worker was accorded with equal rights to that of nationals in education under regulation 1612/68. The Court acknowledged that despite lack of specific powers in this area, through the doctrine of implied powers, if education was effected by the proper exercise of Community powers, these powers should not be curbed. Therefore a certain degree of influence could be exerted over education by the Community, where competences overlapped.

The scope of the Community over education was widened further in Forcheri v Belgium2. This involved the wife of an immigrant worker in Belgium, who was required to pay the minerval for her vocational course3, this fee being incurred only by non-nationals. The Court resolved the case under article 7 of the EEC Treaty, applying the principle of non-discrimination. The Treaty basis for the Community in this area was found in article 128. Whilst the Court was seen in its activist role by extending Regulation 1612/68 to include the spouses of immigrant workers. Therefore, the charging of the minerval to EC nationals was discriminatory thus illegal under Community law.

It is disputable though whether such an application was intended for article 128. Where its express purpose was to enable the Council to provide general principles for a common policy, with the use of majority voting, and no role for the Parliament. Such a requirement is extremely uncommon for such an area given great importance by member States. The Court though, takes a teleological interpretation of the article creating a basis for Community intervention in this area.

In Gravier v Liege4, a French national resident in France, registered for a course at a non-university institution in Belgium, requiring the payment of the minerval. The plaintiff claimed under article 59 EEC, free movement of services5, where the minerval was an obstruction to free movement.

The Court though, relied upon article 7 and 128 EEC, as employed in Forcheri, to prohibit the minerval for EC students participating in vocational training. Where vocational training was provided by an institute of higher education preparing the student with qualifications, skills or training for a specific trade, profession or employment. The Court also judged that no competences were held by the Community over educational policy and organisation. Instead a policy concerning vocational training was seen to be formulated.

In Blaizot v University of Liege6, eleven French nationals studying veterinary medicine at university in Belgium claimed a refund of the minerval in light of Gravier. The Court judged that university degrees were vocational where skills, qualifications or training were provided for a certain occupation. Consequently, access to university courses came under the sphere of Community institutions. This inevitably effected the organisation and policy of member States in this area, where income to fund universities was subsequently reduced. To a certain extent though the Court restricted the liability of the member states and therefore the impact upon funding by only allowing refunds where proceedings were initiated prior to the ruling. However a similar claim and judgement in Barra v Belgium7, involving a non-university institute was not limited.

University courses designed merely to increase general knowledge rather than skills for a specific occupation, were judged to be non-vocational. However, no examples were given by the Court. In Lair v University of Hanover8, a course in Romance and Germanic languages was not challenged though for being non-vocational. With many graduate vacancies only distinguishing on class of degree, a distinction between vocational and non-vocational is of little use, and thus extends the jurisdiction of Community law further.

The case involves a French national residing in Germany who was refused a maintenance grant due to failure to comply with German legislation. This required residence and employment within Germany for five years before such grants were awarded.

The Court held that maintenance grants did not fall within article 7 EEC, being distinguishable from grants to pay fees, and therefore access to education. Instead maintenance fell under the ambit of social policy, the competence of the member States. Article 7(2) of Council Regulation 1612/68 though, entitles immigrant workers to the same 'social advantages' of nationals. Furthermore, the Court judged that the domestic legislation was invalid, with the concept of immigrant workers being derived from Community law, it was not to be regulated domestically, thus the plaintiff was classed as an immigrant worker9. Therefore maintenance grants were to be awarded, with this being a social advantage. There was a need though to show a link between the previous employment and the subsequent course.

In Brown v Secretary of State for Scotland10, the plaintiff had dual nationality, British and French, but resided and was educated in France. However, on taking up a course at a British university, a pre-university industrial training course was taken. However, there was no entitlement to a maintenance grant under national regulations.

As in Lair, the national legislation was declared invalid. However there was no entitlement under regulation 1612/68 as the course was not intended to "further the career already embarked upon". With the pre-university training was incidental to the course and only offered due to the place taken at university.

Although the judgements in