Free movement of students: the Commission sends letters of formal notice to Austria and Belgium

The European Commission has decided today to send Austria and Belgium "letters of formal notice" regarding restrictions of access to their higher-education systems by holders of secondary education diplomas from other Member States. Both countries will now have two months to reply to the European Commission. The Commission recognises the sensitivity of the issue of access to universities in various Member States. While pursuing its role as guardian of the Treaties, it remains open to continue the dialogue with both the Austrian and Belgian authorities.

In the case of Austria, this is a follow-up to the judgement of the European Court of Justice in July 2005. The Austrian legislation had required that the holders of secondary education diplomas from other Member States had to prove that they have met conditions governing access to the higher education in their home country (e.g. passing the entrance exams). The Court held that Austria's legislation discriminated against holders of secondary education diplomas awarded in another Member State, since they could not gain access to Austrian higher education under the same conditions as holders of the equivalent Austrian diploma (Article 12, 149, 150 of the EC Treaty). As regards a possible justification of such discrimination, the ECJ stated in particular that Austria "failed to demonstrate that ... the existence of the Austrian education system in general and the safeguarding of the homogeneity of higher education in particular would be jeopardized”, in the absence of restrictive measures, by the number of students coming from other countries, mainly Germany.

Following the Court's decision, Austria provisionally amended the relevant Universities Act twice, firstly in July 2005 to abide the Court's decision then, in June 2006, to re-establish restrictions to the access. The latter amendment specified that, for some studies, 75 % of the study places could be reserved to applicants with a secondary education diploma acquired in Austria (and 20 % to other EU students, the remaining 5% to third-countries students). A subsequent decree stipulated that these quotas were to be introduced for medicine and dental studies till the end of 2007.

Today's letter of formal notice – based on Article 228 of the Treaties (i.e. non-application of an ECJ ruling)- indicates that the Commission, having analysed the justifications put forward so far by the Austrian authorities, considers at this stage that Austria has still not complied with the ECJ's ruling and invites accordingly Austria to submit its observations.

Belgium –more precisely the Parliament of the Communauté française – adopted, in June 2006 a decree, by which it introduced, for a certain number of medical studies, a quota of 70 % for students who have their residency in Belgium.

With today's letter of formal notice, the European Commission indicates – for similar reasons as in the Austrian case – that this system has discriminatory effect on the EU nationals not residing in Belgium and that Belgium failed to justify the introduction of this system.

The case is nevertheless different from the Austrian situation: indeed, the European Court of Justice had already rendered in July 2004 a judgement against a former discriminatory system applied by Belgium. In the meantime (2003), Belgium had actually abolished any discriminatory effect in its legislation prior to the Court's decision and the infringement procedure was closed by the Commission.

The new decree adopted in 2006 by the Communauté française, and which entered in force for the academic year 2006-2007, is therefore considered to be a new infringement. The Commission's letter of formal notice is therefore based on Article 226 of the Treaties (opening of a new procedure).

Both Member States have now 2 months to respond to the European Commission's concerns.