61985CO0293_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 293/85 R
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . GRIESMAR, ASSISTED BY G.-H . BEAUTHIER, OF THE BRUSSELS BAR, AND L . MISSON, OF THE LIEGE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
KINGDOM OF BELGIUM, REPRESENTED BY ITS AGENT, M . HOEBAER, DIRECTOR OF FOREIGN TRADE AND COOPERATION WITH DEVELOPING COUNTRIES IN THE MINISTRY OF FOREIGN AFFAIRS, ASSISTED BY M . WAELBROECK AND P . DELTENRE, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, 4 RUE DES GIRONDINS, RESIDENCE CHAMPAGNE,
DEFENDANT,
Subject of the case
APPLICATION FOR AN ORDER REQUIRING THE KINGDOM OF BELGIUM IMMEDIATELY TO ADOPT THE MEASURES NEEDED TO ENSURE THAT STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES SHALL HAVE ACCESS TO UNIVERSITY EDUCATION OFFERED IN BELGIUM ON THE SAME CONDITIONS AS BELGIAN STUDENTS,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 2 OCTOBER 1985, THE COMMISSION OF THE EUROPEAN COMMUNITIES SOUGHT AN ORDER PURSUANT TO ARTICLE 186 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE REQUIRING THE KINGDOM OF BELGIUM IMMEDIATELY TO ADOPT THE MEASURES NEEDED TO ENSURE THAT, PENDING THE JUDGMENT OF THE COURT ON THE MAIN APPLICATION, STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES HAVE ACCESS TO UNIVERSITY EDUCATION OFFERED IN BELGIUM ON THE SAME CONDITIONS AS BELGIAN STUDENTS .
2 ON THE SAME DATE, THE COMMISSION OF THE EUROPEAN COMMUNITIES LODGED AN APPLICATION PURSUANT TO ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE KINGDOM OF BELGIUM HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 5 AND 7 OF THE EEC TREATY BY ITS POLICY OF CHARGING A SUPPLEMENTARY ENROLMENT FEE, KNOWN AS THE ' MINERVAL ', TO STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES .
3 THE DEFENDANT LODGED WRITTEN OBSERVATIONS ON 14 OCTOBER 1985 . THE PARTIES PRESENTED ORAL ARGUMENT ON 23 OCTOBER 1985 .
4 AT THE HEARING THE COMMISSION AMENDED ITS APPLICATION FOR INTERIM MEASURES IN THE LIGHT OF THE JUDGMENT OF THE COURT OF 13 FEBRUARY 1985 IN CASE 293/83 ( GRAVIER V CITY OF LIEGE ( 1985 ) ECR 606 ). IT NOW SEEKS AN ORDER REQUIRING THE KINGDOM OF BELGIUM IMMEDIATELY TO ADOPT THE MEASURES NECESSARY TO ENSURE THAT, UNTIL THE COURT HAS GIVEN JUDGMENT ON THE MAIN APPLICATION, STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES HAVE ACCESS TO VOCATIONAL TRAINING OFFERED BY BELGIAN UNIVERSITIES ON THE SAME CONDITIONS AS BELGIAN STUDENTS .
5 IT IS CLEAR FROM THE DOCUMENTS PUT BEFORE THE COURT THAT THE ACTION BROUGHT BY THE COMMISSION UNDER ARTICLE 169 OF THE EEC TREATY CHALLENGES CERTAIN PROVISIONS OF THE BELGIAN LAW OF 21 JUNE 1985 ON EDUCATION ( MONITEUR BELGE OF 6 JULY 1985 ). THE APPLICANT CONSIDERS THAT SEVERAL PROVISIONS OF THAT LAW, WHICH WAS ADOPTED IN ORDER TO SETTLE THE CONDITIONS OF ACCESS TO EDUCATION AND THE RULES GOVERNING PAYMENT OF THE SUPPLEMENTARY ENROLMENT FEE, DO NOT COMPLY WITH THE JUDGMENT IN GRAVIER, IN WHICH THE COURT HELD THAT THE IMPOSITION ON STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES OF SUCH A FEE AS A CONDITION OF ACCESS TO VOCATIONAL TRAINING, WHERE THE SAME FEE IS NOT IMPOSED ON STUDENTS WHO ARE NATIONALS OF THE HOST MEMBER STATE, CONSTITUTES DISCRIMINATION CONTRARY TO ARTICLE 7 OF THE TREATY .
6 THE CONTESTED PROVISIONS ARE NOT ALL IDENTICAL IN SCOPE . SOME RELATE SPECIFICALLY TO UNIVERSITY EDUCATION, WHILST OTHERS CONCERN ONLY OTHER FORMS OF EDUCATION . THE APPLICATION FOR INTERIM MEASURES CONCERNS ONLY THE PROVISIONS ON UNIVERSITY EDUCATION, NAMELY ARTICLE 16 ( 1 ) AND ( 2 ) OF THE LAW OF 21 JUNE 1985 .
7 BEFORE CONSIDERING THE CONTENT OF THOSE PROVISIONS, IT WILL BE USEFUL BRIEFLY TO RECALL THE SITUATION OBTAINING IN BELGIUM BEFORE THE ADOPTION OF THE LAW OF 21 JUNE 1985 .
8 THE PRINCIPLE THAT PRIMARY AND SECONDARY EDUCATION IS FREE OF CHARGE IN THE TWO SYSTEMS, THE STATE SYSTEM AND INDEPENDENT SUBSIDIZED ESTABLISHMENTS, WAS LAID DOWN BY ARTICLE 12 OF THE LAW OF 29 MAY 1959 . WITH EFFECT FROM 1972, UNIVERSITIES WERE AUTHORIZED TO CHARGE AN ENROLMENT FEE OF BFR 12 000 . WITH EFFECT FROM THE ACADEMIC YEAR 1976/77, THE BELGIAN GOVERNMENT INTRODUCED A SUPPLEMENTARY ENROLMENT FEE, KNOWN AS THE ' MINERVAL ', FOR FOREIGN STUDENTS WHOSE PARENTS WERE NOT RESIDENT IN BELGIUM . FOR UNIVERSITY EDUCATION THAT FEE, WHICH VARIES FROM BFR 80 000 TO BFR 265 000, WAS INTRODUCED BY ARTICLE 85 OF THE LAW OF 5 JANUARY 1976 AMENDING ARTICLE 27 OF THE LAW OF 27 JULY 1971 GOVERNING UNIVERSITIES AND THEIR FINANCEMENT .
9 THE PURPOSE OF ARTICLE 16 ( 1 ) OF THE LAW OF 21 JUNE 1985 WAS TO AMEND ARTICLE 27 OF THE LAW OF 27 JULY 1971 IN ORDER TO ENABLE STUDENTS WHO ARE MIGRANT WORKERS OR SPOUSES OF MIGRANT WORKERS TO BE SUBSIDIZED . IT WAS NOT, HOWEVER, DESIGNED TO AUTHORIZE THE PAYMENT OF SUBSIDIES FOR OTHER STUDENTS WHO ARE NATIONALS OF MEMBER STATES OF THE EEC, OR TO RELEASE THEM FROM THE OBLIGATION TO PAY THE SUPPLEMENTARY ENROLMENT FEE WHEN THEY COME TO BELGIUM TO PURSUE UNIVERSITY STUDIES . NEVERTHELESS, ARTICLE 1 ( 10 ) OF THE DECREE OF 30 AUGUST 1985 IMPLEMENTING ARTICLE 59 OF THE LAW OF 21 JUNE 1985 PROVIDES THAT STUDENTS WHO ARE NATIONALS OF A MEMBER STATE OF THE EEC AND WHO FOLLOW VOCATIONAL TRAINING COURSES ARE EXEMPT FROM PAYMENT OF THE FEE . IT SHOULD BE NOTED THAT ON 2 SEPTEMBER 1985 THE FRENCH-SPEAKING MINISTER FOR EDUCATION ADDRESSED A LETTER TO UNIVERSITY RECTORS IN WHICH HE STATED THAT ' AS A RESULT OF THE JUDGMENT IN GRAVIER AND THE INFLUENCE OF THAT JUDGMENT ON EEC LAW, STUDENTS WHO ARE NATIONALS OF EEC COUNTRIES AND WHOSE ENROLMENT HAS BEEN ACCEPTED CAN NO LONGER BE REQUIRED TO PAY SUPPLEMENTARY FEES . . . ' .
10 ARTICLE 16 ( 2 ) OF THE LAW OF 21 JUNE 1985 EXPRESSLY AUTHORIZES UNIVERSITIES TO REFUSE TO ENROL STUDENTS WHO DO NOT COME INTO CONSIDERATION FOR THE PURPOSES OF FINANCIAL SUPPORT . ARTICLE 27 ( 3 ) ( F ) OF THE LAW OF 27 JULY 1971 STATES THAT SUBSIDIES WILL BE PAID IN RESPECT OF FOREIGN STUDENTS ONLY IN SO FAR AS THEIR NUMBER DOES NOT EXCEED 2% OF THE TOTAL NUMBER OF BELGIAN STUDENTS WHO WERE DULY ENROLLED IN THE PRECEDING ACADEMIC YEAR .
11 FROM THOSE TWO PROVISIONS, READ IN CONJUNCTION WITH THE AFORESAID ARTICLE 16 ( 1 ), IT APPEARS THAT THE BELGIAN STATE GRANTS SUBSIDIES TO FOREIGN STUDENTS ONLY IN SO FAR AS THEIR NUMBER DOES NOT EXCEED 2% OF THE TOTAL NUMBER OF BELGIAN STUDENTS, AND THAT STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES AND WHO COME TO BELGIUM FOR THE SOLE PURPOSE OF UNDERTAKING UNIVERSITY STUDIES ARE REGARDED AS FOREIGNERS . THE BELGIAN LEGISLATION THUS AUTHORIZES UNIVERSITY RECTORS TO REFUSE TO ENROL COMMUNITY STUDENTS BECAUSE THEY DO NOT NORMALLY COME INTO CONSIDERATION FOR THE PURPOSES OF FINANCIAL SUPPORT, EVEN IF THEY ARE PREPARED TO PAY THE SUPPLEMENTARY ENROLMENT FEE .
12 AS A CONDITION ENABLING INTERIM MEASURES SUCH AS THOSE REQUESTED TO BE GRANTED, ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT APPLICATIONS FOR INTERIM MEASURES MUST STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .
13 IN THAT CONNECTION THE APPLICANT RELIES UPON VARIOUS GROUNDS WHICH, IN ITS VIEW, ESTABLISH A PRIMA FACIE CASE FOR THE INTERIM MEASURES WHICH IT SEEKS . RELYING UPON THE PRINCIPLE WHICH IT CONSIDERS THAT IT HAS ESTABLISHED IN ITS MAIN APPLICATION, NAMELY THAT UNIVERSITY STUDIES PROVIDE VOCATIONAL TRAINING FOR THE STUDENT WITHIN THE MEANING OF ARTICLE 128 OF THE EEC TREATY AND THE JUDGMENT IN GRAVIER, IT SUBMITS THAT ARTICLE 16 ( 1 ) OF THE LAW OF 21 JUNE 1985, WHICH DOES NOT CONTAIN ANY PROVISION FOR EXEMPTION FROM THE FEE FOR COMMUNITY NATIONALS WHO HAVE COME TO BELGIUM FOR THE SOLE PURPOSE OF PURSUING UNIVERSITY STUDIES, IS INCOMPATIBLE WITH THE JUDGMENT IN GRAVIER AND CONSTITUTES DISCRIMINATION ON GROUNDS OF NATIONALITY CONTRARY TO ARTICLE 7 OF THE TREATY BECAUSE BELGIAN STUDENTS ARE NOT REQUIRED TO PAY THE FEE . IT CONSIDERS THAT THE LETTER FROM THE FRENCH-SPEAKING MINISTER FOR EDUCATION DATED 2 SEPTEMBER 1985, INVITING UNIVERSITY RECTORS NOT TO REQUIRE EEC STUDENTS TO PAY THE FEE, DOES NOT ADEQUATELY PROTECT THE RIGHTS OF COMMUNITY STUDENTS . UNIVERSITIES, ESPECIALLY INDEPENDENT UNIVERSITIES BUT ALSO STATE UNIVERSITIES, MAY RELY UPON THEIR LEGAL STATUS AND BUDGETARY AND FINANCIAL AUTONOMY IN ORDER TO ADHERE TO THE LETTER OF THE LAW AND NOT APPLY THE MINISTER ' S INSTRUCTIONS . FURTHERMORE, THE APPLICANT CLAIMS THAT THOSE INSTRUCTIONS MAY BE REVOKED OR MODIFIED AT ANY TIME .
14 IN ADDITION, THE APPLICANT ALLEGES THAT THE ADOPTION BY THE KINGDOM OF BELGIUM OF ARTICLE 16 ( 2 ) OF THE LAW OF 21 JUNE 1985, WHICH PROVIDES THAT UNIVERSITIES MAY REFUSE TO ENROL STUDENTS WHO ARE NOT ELIGIBLE FOR FINANCIAL SUPPORT, INTRODUCES FURTHER DISCRIMINATION AGAINST COMMUNITY STUDENTS WHO HAVE COME TO BELGIUM FOR THE SOLE PURPOSE OF PURSUING UNIVERSITY STUDIES . IT CLAIMS THAT AS A RESULT OF THE APPLICATION OF THAT PROVISION IN CONJUNCTION WITH THE VARIOUS PROVISIONS CITED IN PARAGRAPH 11 OF THIS ORDER, BELGIAN UNIVERSITIES MAY REFUSE TO ENROL STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES, WHEREAS THEY CANNOT REFUSE TO ENROL BELGIAN STUDENTS . THE APPLICANT STRESSES THAT UNIVERSITIES WILL BE ALL THE MORE INCLINED TO REFUSE TO ENROL ANY COMMUNITY STUDENT WHO REFUSES TO PAY THE SUPPLEMENTARY ENROLMENT FEE IF THEY DO NOT IN ANY EVENT RECEIVE SUBSIDIES IN RESPECT OF SUCH STUDENTS . THUS EVEN IF THE STUDENT IS PREPARED TO PAY THE FEE, UNIVERSITIES CONCERNED WITH EFFICIENT MANAGEMENT MAY CONSIDER THAT THEY HAVE NO ALTERNATIVE BUT TO REFUSE TO ENROL HIM, BECAUSE THE FEE COVERS ONLY 50% OF THE COSTS ACTUALLY INCURRED BY THEM .
15 THE KINGDOM OF BELGIUM, IN THE OBSERVATIONS WHICH IT HAS SUBMITTED IN THE INTERIM PROCEEDINGS, OBJECTS FIRST THAT THE ACTION FOR FAILURE TO FULFIL OBLIGATIONS UNDER THE TREATY IS INADMISSIBLE BECAUSE BY GRANTING BELGIUM ONLY VERY SHORT TIME-LIMITS IN THE FRAMEWORK OF THE PROCEDURE UNDER ARTICLE 169 OF THE TREATY, THE COMMISSION FAILED TO COMPLY WITH THE PROCEDURAL SAFEGUARDS PROVIDED FOR IN THAT ARTICLE . NEXT, IT STATES THAT NONE OF THE GROUNDS RELIED UPON BY THE APPLICANT IS CAPABLE OF ESTABLISHING THE EXISTENCE OF A PRIMA FACIE CASE . IN THAT CONNECTION, IT CONSIDERS THAT THE JUDGMENT IN GRAVIER CONCERNED SOLELY VOCATIONAL TRAINING AND THE LAW OF 21 JUNE 1985 ACCURATELY APPLIED THE PRINCIPLES LAID DOWN IN THAT JUDGMENT BY LIMITING THE REPERCUSSIONS OF THE PRONOUNCEMENT OF THE COURT TO TECHNICAL VOCATIONAL TRAINING AND BY EXCLUDING UNIVERSITY TRAINING . THE KINGDOM OF BELGIUM ALSO STRESSES THAT IN ADOPTING ARTICLE 16 ( 2 ) IT DID NOT INTEND TO DISCRIMINATE AGAINST FOREIGN STUDENTS AS COMPARED WITH BELGIAN STUDENTS, BUT SOUGHT TO PROVIDE LEGAL CONFIRMATION OF THE RECTORS '
RIGHT TO REFUSE TO ENROL STUDENTS WISHING TO REPEAT A YEAR FOR THE SECOND TIME, WHETHER THEY ARE BELGIAN OR FOREIGN .
16 IN VIEW OF THAT DIFFERENCE OF OPINION, IT IS NECESSARY TO DEFINE PRECISELY THE ISSUES RAISED AND TO EXAMINE THEM IN THE LIGHT OF THE JUDGMENT IN GRAVIER . THE MAIN ISSUE IS WHETHER THE IMPOSITION EXCLUSIVELY ON STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES OF A FINANCIAL RESTRICTION, SUCH AS THE PAYMENT OF A SUPPLEMENTARY ENROLMENT FEE, ON ACCESS TO UNIVERSITY STUDIES, EVEN THOSE WHICH ARE PART OF VOCATIONAL TRAINING, IS COMPATIBLE WITH COMMUNITY LAW AND THE JUDGMENT IN GRAVIER IN PARTICULAR .
17 IT FOLLOWS FROM THE JUDGMENT IN GRAVIER THAT THE CONDITIONS OF ACCESS TO VOCATIONAL TRAINING FALL WITHIN THE SCOPE OF THE TREATY AND THAT THE IMPOSITION ON STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES OF AN ENROLMENT FEE AS A CONDITION OF ACCESS TO VOCATIONAL TRAINING, WHERE THE SAME FEE IS NOT IMPOSED ON STUDENTS WHO ARE NATIONALS OF THE HOST MEMBER STATES, CONSTITUTES DISCRIMINATION ON GROUNDS OF NATIONALITY CONTRARY TO ARTICLE 7 OF THE TREATY .
18 IN INTERIM PROCEEDINGS IT IS IMPOSSIBLE FOR THE COURT, WITHOUT PREJUDGING THE SUBSTANCE OF THE CASE, TO DETERMINE WHETHER VOCATIONAL TRAINING WITHIN THE MEANING OF THE JUDGMENT IN GRAVIER INCLUDES UNIVERSITY STUDIES . HOWEVER, IT MAY BE THAT CERTAIN UNIVERSITY STUDIES, IN PARTICULAR THOSE WHICH LEAD TO QUALIFICATION FOR A PARTICULAR PROFESSION, TRADE OR EMPLOYMENT OR WHICH PROVIDE THE NECESSARY TRAINING AND SKILLS FOR SUCH A PROFESSION, TRADE OR EMPLOYMENT, CONSTITUTE VOCATIONAL TRAINING AND THEREFORE SHOULD NOT HAVE CONDITIONS OF ACCESS FOR STUDENTS OF OTHER MEMBER STATES DIFFERENT FROM THOSE APPLICABLE TO STUDENTS OF THE HOST STATE . FROM THE FACT THAT ARTICLE 16 ( 1 ) OF THE LAW OF 21 JUNE 1985 REQUIRES STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES AND WHO WISH TO FOLLOW UNIVERSITY COURSES IN BELGIUM TO PAY A SUPPLEMENTARY ENROLMENT FEE, EVEN IF THEIR STUDIES SEEM TO BE CLOSELY LINKED WITH VOCATIONAL TRAINING, IT MAY THEREFORE BE INFERRED THAT THE GROUNDS RELIED UPON BY THE APPLICANT ESTABLISH A PRIMA FACIE CASE FOR THE GRANT OF THE INTERIM MEASURE APPLIED FOR .
19 THE APPLICANT IN THIS CASE APPEARS TO HAVE PUT FORWARD FACTUAL AND LEGAL GROUNDS WHICH MAY BE REGARDED AS ESTABLISHING A PRIMA FACIE CASE FOR THE GRANT OF THE INTERIM MEASURE APPLIED FOR ; HOWEVER, THE COURT MUST ALSO ASSESS THE URGENCY OF SUCH A MEASURE AND WHETHER IT IS NECESSARY IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE .
20 IN THAT REGARD, THE APPLICANT SUBMITS THAT THE ACADEMIC YEAR HAS ALREADY BEGUN AND STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES THEREFORE URGENTLY NEED TO KNOW WHETHER THEY WILL BE ENTITLED TO ENROL, AT LEAST PROVISIONALLY, OR WHETHER, ON THE CONTRARY, DEPENDING ON THEIR FINANCIAL RESOURCES, THEY WILL EITHER HAVE TO PAY THE SUPPLEMENTARY FEE OR ABANDON THE STUDIES WHICH THEY PROPOSED TO UNDERTAKE OR HAVE ALREADY BEGUN . IT SEEMS OBVIOUS TO THE APPLICANT THAT ANY SUCH STUDENT WHOSE ENROLMENT OR RE-ENROLMENT IS REFUSED BECAUSE HE IS UNABLE TO PAY THE FEE WILL SUFFER SERIOUS AND IRREPARABLE DAMAGE . A STUDENT WHO HAS AGREED TO PAY THE FEE WOULD BE IN THE SAME SITUATION, IN VIEW OF THE AMOUNT WHICH HE WILL HAVE TO PAY, WHICH MAY BE SUBSTANTIAL . IT IS EVEN MORE APPARENT THAT SUCH A STUDENT WILL SUFFER IRREPARABLE DAMAGE IF, THOUGH PREPARED TO PAY THE FEE, HE IS REFUSED THE RIGHT TO ENROL PURSUANT TO ARTICLE 16 ( 2 ) OF THE LAW OF 21 JUNE 1985 .
21 THE KINGDOM OF BELGIUM DENIES THAT THE CONDITION OF URGENCY ATTACHED TO THE GRANT OF INTERIM MEASURES IS FULFILLED . IN THAT CONNECTION, THE FACT THAT THE LAW INTRODUCING THE FEE FOR FOREIGN STUDENTS HAS EXISTED SINCE 1976 AND HAS NEVER PREVIOUSLY BEEN CONTESTED BY THE APPLICANT SEEMS TO IT SIGNIFICANT . IT ALSO STRESSES THAT INTERIM MEASURES ARE NORMALLY GRANTED IN THE FRAMEWORK OF AN ACTION AGAINST THE MEMBER STATE FOR FAILURE TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ONLY IF THE MEMBER STATE HAS SUDDENLY INTRODUCED AN AMENDMENT TO ITS LEGISLATION WHICH IS MANIFESTLY CONTRARY TO THE TREATY . NO SUCH CHARGE MAY BE LEVIED AGAINST THE KINGDOM OF BELGIUM IN THIS INSTANCE SINCE, BY ADOPTING THE LAW OF 21 JUNE 1985, IT CORRECTLY APPLIED THE PRINCIPLES LAID DOWN IN THE JUDGMENT IN GRAVIER . AS TO THE DAMAGE SUFFERED BY STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES AS A RESULT OF BEING REQUIRED TO PAY THE FEE, THE KINGDOM OF BELGIUM DOES NOT CONSIDER IT TO BE SERIOUS OR IRREPARABLE SINCE THEY MAY OBTAIN REPAYMENT OF THE FEE IF IT IS SUBSEQUENTLY DECLARED UNLAWFUL . IN ANY EVENT THE DAMAGE SUFFERED BY SUCH STUDENTS THROUGH BEING REQUIRED TO PAY THE FEE MUST BE WEIGHED AGAINST THE DAMAGE WHICH WOULD BE SUFFERED BY BELGIAN UNIVERSITIES IF THEY WERE REQUIRED TO ENROL SUCH STUDENTS WITHOUT RECEIVING ANY SUBSIDY OR CONTRIBUTION FROM THE STUDENT TO THE COST OF HIS STUDIES .
22 THE INFORMATION GIVEN TO THE COURT BY THE KINGDOM OF BELGIUM AT THE HEARING INDICATES THAT IT IS CHIEFLY THE STUDENTS WISHING TO ENROL IN AN INDEPENDENT UNIVERSITY WHOSE ENROLMENT WILL BE REFUSED IF THEY DO NOT PAY THE FEE IN QUESTION . STATE UNIVERSITIES ARE LARGELY COMPLYING WITH THE INSTRUCTIONS COMMUNICATED TO THEM BY THE MINISTER IN HIS LETTER OF 2 SEPTEMBER 1985 .
23 ALTHOUGH THE PARTIES DO NOT AGREE AS TO THE PRECISE NUMBER OF STUDENTS AFFECTED, IT APPEARS THAT AT LEAST SOME OF THEM ARE BEING REFUSED ENROLMENT BECAUSE THEY ARE UNABLE OR UNWILLING TO PAY THE FEE, ALTHOUGH THE ACADEMIC YEAR HAS ALREADY BEGUN . THE PRESIDENT OF THE COURT THEREFORE TAKES THE VIEW THAT IT IS A MATTER OF URGENCY FOR THOSE STUDENTS TO BE ABLE TO ENROL WITHOUT HAVING TO PAY THE FEE IN ORDER TO PREVENT SERIOUS AND IRREPARABLE DAMAGE TO THEIR INTERESTS .
24 HOWEVER, FOR THE PURPOSES OF ARTICLE 186 OF THE EEC TREATY, IT IS NECESSARY TO BALANCE ALL THE INTERESTS CONCERNED . ACCORDINGLY, THE PRESIDENT OF THE COURT CONSIDERS THAT A BALANCE WILL BE ACHIEVED BETWEEN THE INTERESTS OF THE PARTIES CONCERNED IF, ON ENROLMENT, STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES GIVE A PERSONAL UNDERTAKING, IN WRITING, TO PAY THE FEE IF THE MAIN APPLICATION IS DISMISSED BY THE COURT .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT,
BY WAY OF INTERIM DECISION,
HEREBY ORDERS AS FOLLOWS :
( 1 ) PENDING THE JUDGMENT ON THE MAIN APPLICATION, THE KINGDOM OF BELGIUM IS REQUIRED :
( A ) ON NOTIFICATION OF THIS ORDER, IMMEDIATELY TO ADOPT ALL THE MEASURES NEEDED TO ENSURE THAT STUDENTS WHO ARE NATIONALS OF OTHER MEMBER STATES SHALL HAVE ACCESS TO VOCATIONAL TRAINING OFFERED BY BELGIAN UNIVERSITIES ON THE SAME CONDITIONS AS BELGIAN STUDENTS, PROVIDED THAT THEY GIVE A PERSONAL UNDERTAKING, IN WRITING, TO PAY THE FEE IN QUESTION IF THE MAIN APPLICATION IS DISMISSED BY THE COURT . THAT PERSONAL UNDERTAKING IN WRITING SHOULD TAKE THE FORM OF AN INDIVIDUAL ACKNOWLEDGMENT OF LIABILITY TO PAY ;
( B)TO INFORM THE COMMISSION AND THE COURT OF JUSTICE WITHIN ONE MONTH AT THE LATEST OF THE MEASURES WHICH IT HAS ADOPTED IN ORDER TO COMPLY WITH PARAGRAPH 1 ( A ) OF THE OPERATIVE PART OF THIS ORDER .
( 2)COSTS ARE RESERVED .