CELEX: 62003CJ0065
Failure of a Member State to fulfil obligations
Articles 12 EC, 149 EC and 150 EC
Secondary education diploma awarded in another Member State
Access to higher education

By application lodged at the Court Registry on 14 February 2003, the  Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by failing to take the measures necessary to ensure that holders of secondary
education diplomas awarded in other Member States can gain access to higher education organised by Belgium’s French Community
(‘the French Community’) under the same conditions as holders of the certificat d’enseignement secondaire supérieur (Certificate
of higher secondary education) (CESS), the Kingdom of Belgium has failed to fulfil its obligations under Articles 12 EC, 149
EC and 150 EC.
Relevant provisions
Community legislation
The first paragraph of Article 12 EC provides that:
‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination
on grounds of nationality shall be prohibited.’
Article 149(1) and (2) EC provide:
‘1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States
and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States
for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
2.  Community action shall be aimed at:
...
–
encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods
of study;
…’
Article 150 EC states:
‘1. The Community shall implement a vocational training policy which shall support and supplement the action of the Member
States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
Community action shall aim to:
…
–
facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people;
–
…’
National legislation
Article 1(b) of the Royal Decree of 20 July 1971 laying down the conditions and procedure for granting equivalence to foreign
diplomas and certificates of study (
Moniteur belge
of 5 August 1971, p. 9254) (‘the 1971 decree’) provides:
‘If equivalence provided for in Article 1 of the Law of 19 March 1971 is granted, that shall under no circumstances have the
effect:
…
(b) of giving the recipient access to studies to which he does not have access in the country in which the diploma or certificate
was  awarded’.
The decree of the Government of the French Community of 3 April 2003 amending the 1971 decree (
Moniteur belge
of 16 May 2003, p. 26867) (‘the decree of 3 April 2003 amending the 1971 decree’) added the following sentence to Article
1(b) of the 1971 decree: ‘However, letter (b) shall not apply to qualifications awarded in another Member State of the European
Union’.
Article 2 of the decree of the Government of the French Community of 17 May 1999 recognising equivalence between certain foreign
qualifications awarded on completion of secondary studies and the official certificate of higher secondary education (
Moniteur belge
of 25 September 1999, p. 36182) (‘the 1999 decree’) provides:
‘Diplomas awarded on completion of the new system of secondary studies issued in Luxembourg as from the school year 1993-94
and containing any of the following wording:
…
shall be declared equivalent to the official certificate of higher secondary education.’
The decree of the Government of the French Community of 3 April 2003 amending the 1999 decree (
Moniteur belge
of 15 May 2003, p. 26497) (‘the decree of 3 April 2003 amending the 1999 decree’) repealed, inter alia, Article 2 of the 1999
decree.
Pre-litigation procedure
Considering that the provisions of the 1971 decree governing the academic recognition of qualifications and diplomas awarded
on completion of secondary studies and access to higher education and university education in the French Community infringed
Articles 12 EC, 149 EC and 150 EC, the Commission initiated the infringement procedure. Having called on the Kingdom of Belgium
to submit its observations, the Commission delivered a reasoned opinion on 23 October 2001 requesting that Member State to
take the measures necessary to comply with the opinion within a period of two months from its notification.
The Government of the French Community then informed the Commission that at its meeting on 20 December 2001 it had decided
to comply with the conclusions set out by the Commission in its reasoned opinion. It also notified the Commission that the
rules in force would be amended for the purpose of putting an end to the discrimination in question and that the measures
necessary to implement that decision would be taken before the end of the academic year 2001/2002.
Since the French Community did not respond to the Commission’s two letters of reminder, the latter brought the present action.
The action
Arguments of the parties
The Commission notes that it follows from Case 293/83
Gravier
[1985] ECR 593 that the conditions of access to vocational training fall within the scope of the Treaty. It also follows from
the case-law of the Court that the term ‘vocational training’ must be construed very widely. Moreover, under Article 149 EC
all levels and types of education are henceforth covered by the Treaty.
The Commission claims that nationals of other Member States who hold diplomas and qualifications awarded on successful completion
of secondary studies in other Member States who wish to gain access to higher education in Belgium (medical studies, dental
and veterinary science, and agricultural engineering) must take and pass an aptitude test if they are not able to prove, by
way of additional requirement, that they qualify for admission in their own country of origin to a university with no entry
examination or other condition of access.
It maintains that the additional requirement for access to higher education in the French Community, in so far as it applies
exclusively to holders of diplomas awarded in another Member State, is liable to have a greater effect on nationals of those
other Member States than on Belgian nationals.
The Commission is of the opinion that that additional requirement, which takes the form of a so-called ‘maturité’ examination,
which only holders of diplomas awarded in another Member State must take, constitutes a condition of access to higher and
university education within the meaning of the aforementioned case-law.
The Commission claims that that system creates twofold discrimination, against holders of diplomas awarded in other Member
States, and against nationals of other Member States on the basis of the education system within which they were awarded their
diploma on completion of secondary studies.
In its defence, the Belgian Government submits that by adopting the two decrees of 3 April 2003 amending the decrees of 1971
and 1999 it took the measures necessary to ensure that holders of secondary education diplomas awarded in other Member States
can gain access to higher education organised by the French Community under the same conditions as holders of the CESS.
In its reply, the Commission argues that the legislative amendments made by the Belgian authorities take account of its complaints
only prospectively. However, many students who hold a secondary education diploma awarded in another Member State and wish
to gain access to higher education in Belgium will have been put at a disadvantage in the past by the infringement of Community
law complained of by the Commission in its application. A judgment of the Court on the Commission’s application is therefore
still of interest in order to determine the basis of the Kingdom of Belgium’s liability towards those individuals. Furthermore,
the application raises an important point which the Commission would like to see formally decided by the Court.
In addition, according to the Commission, the amendment to the 1971 decree was alone sufficient to put an end to the infringement
complained of, and it was not necessary also to amend the 1999 decree, which formally recognised the equivalence of Luxembourg
diplomas awarded on completion of secondary studies with the CESS. The Commission states that in the pre-litigation procedure
it did not make a separate complaint regarding the particular case of holders of Luxembourg diplomas. The reference to that
particular case was intended solely to illustrate the fact that the discrimination complained of against holders of diplomas
awarded in another Member State was coupled with discrimination between nationals of other Member States according to the
Member State in which they were awarded their secondary education diploma.
Findings of the Court
It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by
reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and the
Court cannot take account of any subsequent changes (see, inter alia, Case C-103/00
Commission
v
Greece
[2002] ECR I-1147, paragraph 23, and Case C-296/01
Commission
v
France
[2003] ECR I-0000, paragraph 43).
In this case, the decree of 3 April 2003 amending the 1971 decree did not take effect until after the end of the period laid
down in the reasoned opinion.
The Court cannot therefore take that measure into consideration in the present action.
Under the first paragraph of Article 12 EC, within the scope of application of the Treaty, and without prejudice to any special
provisions contained therein, any discrimination on grounds of nationality is to be prohibited.
It follows from the foregoing that it is necessary to consider whether the provisions of Belgian law in force on expiry of
the period laid down in the reasoned opinion concerning access to higher education organised by the French Community complied
with that provision of the Treaty.
As the Court has already held in paragraph 25 of
Gravier
, cited above, the conditions of access to vocational training fall within the scope of the Treaty (see also Case 24/86
Blaizot
[1988] ECR 379, paragraph 11; Case 42/87
Commission
v
Belgium
[1988] ECR 5445, paragraph 7; and Case C-295/90
Parliament
v
Council
[1992] ECR I-4193, paragraph 15). Article 149(2) EC, second indent, expressly provides that Community action is to be aimed
at encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods
of study. Further, Article 150(2) EC, third indent, provides that Community action is to aim to facilitate access to vocational
training and encourage mobility of instructors and trainees and particularly young people.
In respect of access to vocational training, the Treaty does not lay down any special provisions that require, in the light
of the first paragraph of Article 12 EC, to be examined first.
The first paragraph of Article 12 EC therefore applies to the conditions set by the Member States for access to higher education.
It is clear from the Court’s case-law that the principle of equal treatment, of which the prohibition on any discrimination
on grounds of nationality in the first paragraph of Article 12 EC is a specific instance, prohibits not only overt discrimination
by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation,
lead in fact to the same result (see, inter alia, Case C-3/88
Commission
v
Italy
[1989] ECR 4035, paragraph 8, and Case C-388/01
Commission
v
Italy
[2003] ECR I-721, paragraph 13).
In the present case, the legislation in question places holders of secondary education diplomas awarded in a Member State
other then Belgium at a disadvantage, since they cannot gain access to higher education organised by the French Community
under the same conditions as holders of the CESS or the equivalent Luxembourg diploma. The criterion of differentiation applied
works primarily to the detriment of nationals of other Member States.
The Kingdom of Belgium does not put forward any argument capable of justifying that criterion.
It must therefore be held that, by failing to take the measures necessary to ensure that holders of secondary education diplomas
awarded in other Member States can gain access to higher education organised by the French Community under the same conditions
as holders of the CESS, the Kingdom of Belgium has failed to fulfil its obligations under Article 12 EC, read in conjunction
with Articles 149 EC and 150 EC.
Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the Commission asked for the Kingdom of Belgium to be ordered to pay
the costs and the latter has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Third Chamber)
hereby:
1.
Declares that, by failing to take the measures necessary to ensure that holders of secondary education diplomas obtained in
other Member States can gain access to higher education organised by Belgium’s French Community under the same conditions
as holders of the certificat d’enseignement secondaire supérieur (CESS), the Kingdom of Belgium has failed to fulfil its obligations
under Article 12 EC, read in conjunction with Articles 149 EC and 150 EC;
2.
Orders the Kingdom of Belgium to pay the costs.
Rosas
Schintgen
Colneric
Delivered in open court in Luxembourg on 1 July 2004.
R. Grass
A. Rosas
Registrar
President of the Third Chamber
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Language of the case: French.