Opinion of the Advocate General — ECLI:EU:C:2005:40
Date: 2005-01-20
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Education, vocational training and youth;Principles, objectives and tasks of the Treaties;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Action for failure to fulfil obligations - successful
Origin: Austria

Summary of the Judgment 1. Actions for failure to fulfil obligations — Subject-matter of the proceedings —Determination in the course of the pre-litigation procedure (Art. 226 EC) 2. Community law — Principles — Equal treatment — Discrimination on grounds of nationality — Access to higher education — Different conditions for holders of secondary education diplomas awarded in other Member States — Indirect discrimination — Not permissible in the absence of objective justification (Arts 12 EC, 149 EC and 150 EC) 3. Freedom of movement for persons — Derogations — Justification — Need for an analysis of the appropriateness and proportionality of the restrictive measure — Burden of proof on the Member State 4. International agreements — Agreements concluded by Member States — Agreements predating the EC Treaty — Article 307 EC — Scope — Possibility of exercising rights under such agreements in intra-Community relations — Not included (Art. 307 EC) 1. In an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission. Accordingly, the letter of formal notice from the Commission to that Member State and then the reasoned opinion issued by it delimit the subject-matter of the dispute, so that it cannot thereafter be extended. Consequently, the reasoned opinion and the application must be based on the same complaints. However, that requirement cannot be stretched so far as to mean that in every case the statement of the complaints set out in the letter of formal notice, the wording of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings as defined in the reasoned opinion has not been extended or altered. (see paras 22-24) 2. A Member State which fails to take the necessary measures to ensure that holders of secondary education diplomas awarded in other Member States can gain access to higher and university education organised by it under the same conditions as holders of secondary education diplomas awarded in that Member State fails to fulfil its obligations under Articles 12 EC, 149 EC and 150 EC. Although applicable without distinction to all students, a provision of national law providing that students who have obtained their secondary education diploma in a Member State other than the Member State concerned and who wish to pursue their higher or university studies in a given area of education in that State must not only produce that diploma, but also prove that they fulfil the conditions of access to higher or university studies in the State where they obtained their diploma, is liable to have a greater effect on nationals of other Member States than on nationals of the Member State concerned, and therefore the difference in treatment introduced by that provision results in indirect discrimination contrary to the principle of non‑discrimination on the grounds of nationality contained in Article 12 EC. Such differential treatment could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions. (see paras 42, 46-48, 60, 75, operative part 1) 3. It is for the national authorities which invoke a derogation from the fundamental principle of freedom of movement for persons to show in each individual case that their rules are necessary and proportionate to attain the aim pursued. The reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State and specific evidence substantiating its arguments. (see para. 63) 4. Whilst Article 307 EC allows Member States to honour obligations owed to non-member States under international agreements preceding the Treaty, it does not authorise them to exercise rights under such agreements in intra‑Community relations. (see para. 73)