Opinion of Mr Advocate General Sir Gordon Slynn delivered on 17 September 1987. - Commission of the European Communities v Kingdom of Belgium. - Non-discrimination - Access to higher education and university education - Repayment of sums unduly paid. - Case 293/85.



European Court reports 1988 Page 00305



Opinion of the Advocate-General

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My Lords,

The Court has before it five cases which in one form or another raise the question of the compatibility of charging fees for students from one Member State in respect of education in another Member State and of the entitlement of students to the payment of those fees and maintenance grants . It seemed to me at the least prudent to defer giving my Opinions until all five cases had been argued . Three of those cases, the present one and Cases 309/85 Barra v Belgian State and City of Liège and 24/86 Blaizot v University of Liège and Others are concerned with provisions of Belgian law .

They arise in this way . Prior to the academic year 1976-77, Belgian universities were not entitled to charge students fees other than a modest registration fee, and primary and secondary education both in State and subsidized establishments was free . As from that year, a further registration fee could be authorized for foreign students and pupils whose parents were not resident in Belgium and who attended certain educational establishments other than universities . It was under those provisions relating to establishments other than universities that an enrolment fee was prescribed for institutions of artistic education ( other than for exempted students ). A French student, Françoise Gravier, challenged this fee in respect of the years 1982-83 and following . In its judgment in Case 293/83 Gravier v City of Liège (( 1985 )) ECR 593, judgment being delivered on 13 February 1985, the Court held that :

"1 . The imposition on students who are nationals of other Member States of a charge, or registration fee or the so-called 'minerval' 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 on grounds of nationality contrary to Article 7 of the Treaty .

2 . The term 'vocational training' includes courses in strip cartoon art provided by an institution of higher art education where that institution prepares students for a qualification for a particular profession, trade or employment or provides them with the skills necessary for such a profession, trade or employment ".

Universities were in a different position . Article 27(3 ) of the Law of 1971 as amended by Article 85 of the Law of 5 January 1976 ( Moniteur belge of 6 January 1976 ) provided that those university students to be taken into account for the purposes of the central Government' s financial contribution to the universities comprise Belgian and Luxembourg nationals, non-Belgians whose parents or guardians are domiciled or resident in Belgium and carry on their main occupation there, students and residents in Belgium whose parents or guardian are or have been employed in Belgium and are EEC nationals, and other foreign students except those from certain developing countries and those referred to in paragraph 4 of the article, provided that they did not exceed 2% of the total number of Belgian students taken into account for the previous academic year .

Paragraph 4 as amended provided that foreign students other than those mentioned in paragraph 3 should contribute to the cost of functioning of the universities and would not be taken into account for the purpose of fixing the number of certain personnel at the university unless they had paid a further registration fee equal to at least 50% of the cost fixed as prescribed . Thus, if the fees were not paid, universities would not receive money in respect of the salaries of those specified personnel . By Royal Decree of 30 December 1982 universities were authorized to require that foreign students other than those specified in Article 27 ( 3 ) of the 1971 Law as amended pay a further registration fee in an amount not exceeding 50% of the cost fixed as prescribed .

On 21 June 1985 a law concerning education was enacted in Belgium and detailed application of the 1985 Law was provided for in ministerial circulars of 20 August 1985 and a Royal Decree of 30 August 1985 .

The first aspect of the 1985 Law which is relevant concerned only university students . Article 16 ( 1 ) added to the list of students to be taken into account for the purposes of the central Government' s financial contribution to the universities those EEC nationals duly established in Belgium who were pursuing or who had pursued an occupation there, together with their spouses . This was to give effect to the Court' s decision in Case 152/82 Forcheri v Belgium (( 1983 )) ECR 2323, where it was held unlawful to require an enrolment fee to be paid by the wife of a Community official resident in Belgium when such a fee was not required of Belgian students . That provision, by Article 69, was deemed to have come into force on 1 October 1983, i.e . shortly after the Forcheri judgment . It did not, however, add other EEC nationals studying in universities . Article 16 ( 2 ), on the contrary, gave to university rectors the power for the academic year beginning in 1985 to refuse to register students not taken into account for central Government funding purposes . A right of appeal was given against refusals to register but only if the refusal came from a State, not a free university .

The second aspect covers other types of education in Belgium, namely pre-school, primary, secondary, special and non-university higher education . Article 59 ( 1 ) of the 1985 Law provides that foreign students in these categories whose parents or guardians are not Belgian and do not reside in Belgium shall pay the enrolment fee . Article 59 ( 2 ) excepts from the scope of the first paragraph such students who have been given a residence permit for more than three months or are authorized to settle in Belgium pursuant, inter alia, to Article 10 of the Law of 15 December 1980 ( the "1980 Law ") as amended in particular by the Law of 28 June 1984 ( the "1984 Law ").

The 1980 Law regulates the entry, residence, establishment and expulsion of foreigners . Article 10 provides that "the foreign national whose right of residence is recognized by international treaty, by law or by royal decree" shall be permitted to stay in Belgium for more than three months . By virtue of Articles 58 and 59 of the 1980 Law, a person applying for such a permit in order to study must submit, together with other certificates, proof that he has registered with a Belgian educational establishment and that he has adequate means of support .

By Article 71 of the 1985 Law, Article 59 ( 1 ) was brought into force retroactively to 1 September 1976 and Article 59 ( 2 ) to 1 January 1985 .

Thirdly, Article 63 of the 1985 Law provided that enrolment fees charged between 1 September 1976 and 31 December 1984 would in no event be reimbursed, subject to one important proviso : such fees "charged to pupils and students who are nationals of another Member State of the European Community and have taken vocational training courses will be refunded on the basis of judicial decisions made in proceedings for repayment brought before the courts before 13 February 1985", that is, before the date of the Court' s judgment in Gravier .

Having written to the Belgian Government on 17 July 1985, and having, in the absence of a substantive reply, issued a reasoned opinion under Article 169 of the Treaty without receiving any reply, the Commission lodged the present application on 2 October 1985 for a declaration that Belgium was in breach of its obligations under Articles 5 and 7 of the Treaty by reason of certain of the measures which it had adopted .

The Commission considers that these provisions infringe Articles 5 and 7 of the Treaty in five respects . First, EEC nationals ( other than Luxembourg nationals ) who come to Belgium for the sole purpose of studying in Belgian universities (" Community students ") should be exempt from the enrolment fee but are not included in the categories added to Article 27 ( 3 ) of the 1970 Law by Article 16 of the 1985 Law . Second, the power of rectors to refuse to register Community students who do not count for central funding constitutes an illicit restriction on their access to university education . Third, although Article 59 of the 1985 Law purports to exempt Community nationals from paying the enrolment fee if they come to Belgium for the sole purpose of following a non-university higher education course, it is impossible for them to obtain that exemption in practice since the residence permit referred to in Article 59 ( 2 ) can only be obtained on production of a certificate of registration for such a course which will only be granted if they pay the enrolment fee . Fourth, the requirement that they demonstrate adequate means of support under Article 59 ( 2 ) also contravenes those Articles of the Treaty . Fifthly, and finally, Belgium has contravened Articles 5 and 7 by restricting the right to claim repayment of the enrolment fee, the restriction resulting from a combination of Article 63 requiring claims to have been brought by Community nationals before 13 February 1985 and Articles 69 and 71 providing for the exemptions conferred upon Community workers and their spouses, on the one hand, and Community students coming to Belgium for the sole purpose of following the type of course specified in Article 59, on the other, to enter into force on 1 October 1983 and 1 January 1985 respectively .

At the same time as it lodged the main application it sought interim measures, eventually limited to access to vocational training offered by Belgian universities . On the footing that it could not be ruled out that Article 7 of the EEC Treaty covered vocational training offered by universities and that students would suffer irreparable harm if they were excluded because they could not pay the enrolment fee, Belgium was required, by an Order of the President of the Court dated 25 October 1985, to guarantee Community students access to vocational training offered by Belgian universities on the same terms as Belgian students so long as they undertook to pay the enrolment fee if the main action was decided against the Commission' s contention in relation to that fee .

As was made plain at the hearing, this case is not concerned with the modest enrolment fee paid by all students but only with the further fees required of foreign students . The Court was told that that is normally referred to as "the foreign students' minerval ". I shall refer to it simply as "the minerval ".

The Kingdom of Belgium argues first that the Commission' s application is inadmissible since the necessary procedural requirements were not observed in the course of the proceedings under Article 169 .

It argues that it is unacceptable for the Commission to lay down an eight-day period for reply to its letter of 17 July 1985, not to reply to Belgium' s telex of 2 August 1985 requesting an extension of that period and to issue its reasoned opinion, without further consultation, demanding that the measures complained of should be withdrawn within 15 days . The shortness of these periods, it is said, is rendered less tolerable when it is borne in mind that the minerval had been in existence for several years, that what was required was a complete reversal of Belgian educational policy and that the decision in Gravier was a totally new development in Community law, since it recognized rights in respect of persons who could not be regarded as economically active .

It is also said that in two letters of 19 April 1984 and 28 November 1984 the Commission had accepted that the Belgian system was fully in conformity with Community law . I think that, although these letters can be relied on to some extent, this argument reads too much into the letters . The first was limited to workers and the Commission expressed reservations about the fact that the proposed amendments to ministerial circulars did not cover general secondary education; the second expressed reservations about the apparent non-applicability of the rules to members of families of Community officials and underlined the formalities which were required, which it was said were capable of proving a barrier .

Belgium relies on the Court' s criticism of the Commission' s behaviour in Case 74/82 Commission v Ireland (( 1984 )) ECR 317, where very short notice was given and where there was no real urgency, since laws in existence for over 40 years were required to be amended on five days' notice . The Court accepted that the action was admissible because Ireland had had a chance to remedy the matter and to put forward its reply before the proceedings came before the Court . Here it is said that there was no such opportunity .

There is undoubtedly force in these contentions . It is essential that Member States should have a proper opportunity to reply to criticisms before as well as after proceedings are lodged under Article 169 .

The Commission was specifically asked by the Court to explain in writing why these short deadlines had been set and to elaborate what it had said in its pleadings .

Taking into account all the explanations given, and all the circumstances which have been relied on, I would for my part accept that this action should not be rejected as inadmissible . The deadlines set were not strictly enforced by the Commission and I have no doubt that if the Belgian Government had put forward any explanations before the Commission issued its reasoned opinion, or lodged its application, they would have been considered . In the absence of explanation, on the face of it, Belgium and the Commission seemed set on a collision course and there was nothing to indicate that a compromise could be reached . The Commission was not here seeking to have long-standing legislation repealed, but to obtain the withdrawal of measures implemented since the Gravier decision, which on the face of it seemed to the Commission to be deliberately avoiding giving effect to that decision . Moreover the ministerial circulars of 20 August 1985 and the Royal Decree of 30 August 1985 postdate the Commission' s letter of 17 July and, in the case of the Royal Decree, also postdate the reasoned opinion itself .

Further, it is plain that in the debate preceding the enactment of the 1985 Law, views were expressed that it was contrary to Community rules and the Conseil d' Etat itself was critical of the retroactivity of the measure in the light of the Court' s decision in Gravier . At meetings between the Commission and Belgian officials on 25 June 1985 the Commission expressed its view that vocational training could cover university courses and made certain criticisms of the 1985 Law; at a meeting of the Education Committee of the Council on 27 and 28 June 1985, at which Belgium was represented, there was a discussion of the Gravier case . Although the Commission' s representative stated that the Commission had not yet completed its analysis of the effects of the Gravier judgment, Belgium must have known from the earlier meeting that the Commission felt that vocational training could cover university courses .

It is difficult to accept that the Belgian Government was taken by surprise by the letter or the reasoned opinion . There was, moreover, an element of urgency as the new academic year was about to start and, as events proved, it was justified to move fast in order to ask for interim measures .

Although it is essential that the Commission should give proper time for situations to be remedied and for a reply to be given, the time-limits must be judged in all the circumstances . In the present circumstance I accept that the proceedings are admissible .

The issues are obviously of great importance to Belgium which considers that it adopts a liberal stance in relation to the admission of students and the fees which are charged and which it contrasts with other university systems where very substantial grants are given but the number of students is very limited . The case is also important to the Commission since, to adapt Disraeli, "upon the education of the people of this Community the fate of this Community depends ".

On the substance of the case the issues canvassed to some extent arise in more concrete form in the Barra and Blaizot cases and I take the arguments in those cases into account so far as relevant to the issues which fall for consideration in the present case .

The first ground of complaint is that students who go to Belgium for the sole purpose of studying in universities are not exempted by Article 16 ( 1 ) of the 1985 Law, as are "Forcheri-type" students, from the minerval . The issue is thus confined to universities, and does not relate to students who can claim separate rights as "workers", a question to be considered in the remaining two of the five cases mentioned, namely Cases 39/86 Lair v University of Hanover and 197/86 Brown v Secretary of State for Scotland . Although the first ground is put in general terms, the Commission has made it clear that in these cases it does not seek to go beyond "vocational training"; it does not suggest that in respect of all education - in particular what is called "general education" - the Treaty prohibits discrimination in regard to persons on the basis of nationality . Although it argued for a wider rule in Gravier on the basis of some of the documents which had emanated from the Council and the Commission over the years, and although the Court in Gravier accepted that "access to and participation in courses of instruction and apprenticeship, in particular vocational training, are not unconnected with Community law", and although the Forcheri-type exemption in Article 16 ( 1 ) is not limited to vocational training, it seems to me right to approach the application on that footing, desirable though it may be that education in general should in due course be available on a Community basis .

The issue is thus whether, and if so, in what circumstances, vocational training within the meaning of Article 128 of the Treaty as interpreted in Gravier can be undertaken in universities so that the undoubted discrimination on the ground of nationality which constitutes a restriction on the access of Community students ( other than Luxembourg nationals and the other specifically exempted groups ) is prohibited by Article 7 of the Treaty .

The thrust of the argument has been directed to analysing the nature of university education .

The Commission and Belgium ( the latter supported by the arguments of the four universities involved in Blaizot ) are poles apart in their main contentions . The Commission says that university education is always vocational training, Belgium that it never is . It is, however, not without interest that in its pleadings the Commission argued that "in almost all cases" students enrolled for university courses in order to gain the knowledge and skill necessary to pursue a specific occupation, whilst Belgium' s counsel submitted that "generally speaking, apart from a few exceptions, and it is up to the Court to specify those, university studies are not covered" by the Treaty .

The starting point, it seems to me, is Article 128 of the Treaty and the judgment in Gravier . The former envisages a vocational training policy "capable of contributing to the harmonious development both of the national economies and of the common market ". The latter judgment accepted that "although educational organization and policy are not as such included in the sphere which the Treaty has entrusted to the Community institutions" ( a statement based on Case 9/74 Casagrande v Landeshauptstadt Moenchen (( 1974 )) ECR 773, at p . 779 ) "access to and participation in courses of instruction and apprenticeship, in particular vocational training, are not unconnected with Community law" ( paragraph 19 ). After referring to Community measures taken in pursuance of Article 128 the Court concluded that : "Any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and level of training of the pupils or students, even if the training programme includes an element of general education" ( paragraph 30 ).

Both Article 128 and these paragraphs from the Court' s judgment seem to me to direct attention to the nature of the course of training or instruction rather than to the kind of institution involved . I do not consider that either the article or the judgment imply a priori that a university is an institution apart which must necessarily be excluded from the principle upheld in Gravier . For the medieval schoolmen a university may have been sui generis . In the late twentieth century that is not to be assumed so far as teaching as opposed to research is concerned, not least since other institutions, such as United Kingdom polytechnics, now frequently teach courses in some subjects at a comparable level to that attained in the universities . It would be quite wrong if, for example, a degree or a diploma in architecture from a university or a specialist school qualified for practice, that one should count as vocational training and not the other . Moreover it is possible that what in some Member States is included only in university curricula is in other Member States taught in other institutions of higher education which are not strictly categorized as universities . To distinguish by institutions rather than by the nature of the courses therefore seems to me to be unacceptable .

This approach is recognized in the judgment in Gravier which accepted that vocational training is "any form of education" which produce certain results "whatever the age and level of training of the pupils or students" and even if that education includes "an element of general education ".

It is also in my view supported by the developments which have taken place in the recognition by the institutions of the Community of the importance of education at high levels and of the mobility of students at those levels . Belgium is right to point out that in earlier days emphasis was put on manual or lower managerial training but even in the Council Decision of 2 April 1963 laying down general principles for implementing a common vocational training policy ( Decision 63/266/EEC - Official Journal, English Special Edition 1963-64, p . 25 ) there was recognition of the need to "acquire the technical knowledge and skill necessary to pursue a given occupation and to reach the highest possible level of training" ( second principle ), and the publications of the European Centre for the Development of Vocational Training established by Regulation ( EEC ) No 337/75 ( Official Journal 1975, L 39, p . 1 ) do not rule out university education as such . Proposals in the Comett programme 1986-92 ( Official Journal 1985, C 234, p . 3 ) and the Erasmus programme ( Commission' s proposal Official Journal 1985, C 73, p . 4 ), as implemented by Council Decision 87/327/EEC ( Official Journal 1987, L 166/20 ) both of which are based on Article 128 of the Treaty, take the matter much further and plainly contemplate university courses .

It is perhaps also recognized by the statements made by Belgian ministers in the course of the debate on the 1985 Law when they accepted vocational training as including university education .

On the other hand, I cannot accept the Commission' s contention that all university courses constitute vocational training . The mere fact that employers, whether in industry or in the civil service, advertise for graduates does not mean that any course leading to a degree is necessarily vocational in nature, not least since frequently a degree rather than a degree in a specific discipline is indicated . The degree may be required only as evidence that the holder is of a certain intelligence level and has proved himself capable of mastering a particular subject at a relatively high level .

Such a conclusion - that university education cannot be ruled out as, but that it does not always constitute vocational training - of course makes the problem more rather than less difficult for the national court which eventually has to decide whether a form of education constitutes vocational training .

The test in Gravier is whether the form of education in whatever institution "prepares for a qualification for a particular profession, trade or employment or provides the necessary training and skills for such a profession, trade or employment ".

The essential task as I see it is to look at the course as a whole and to ask whether, in the first place, it provides a qualification recognized for admission to a particular profession, trade or employment . If it does, that is enough for the course to qualify . Thus, if in a particular Member State, a degree in veterinary medicine, architecture or pharmacy allows the holder to begin to practise ( even though obviously he will for years go on learning and acquiring skills which may make him a more proficient practitioner ) that is clearly enough .

What if a university degree is a necessary but not a sufficient condition for qualifying for a particular profession? It may not be uncommon that the student must have a degree plus a further professional certificate or that he must have a professional certificate but he may rely on the subjects studied in the degree course to obtain exemption from those subjects in the examinations for the certificate . In Gravier I considered that vocational training included "education which prepares for and leads directly to a qualification" ( emphasis added ). In its judgment the Court considered that it was sufficient to find "education which prepares for a qualification ". On that basis, which I adopt, it seems to me that it is sufficient if a university degree is an integral and necessary part of a qualification or if it provides exemptions from proving proficiency in subjects which would otherwise be tested by a professional body and even if it covers some subjects not so required .

I do not accept the argument advanced that a degree course can only be vocational training where it is an essential prerequisite to admission to a profession, though such a requirement may be indicative that the course leading to the degree is vocational training . I consider that it would be right to accept that a course leading to a degree which, though not formally a part of a qualification, gives the necessary grounding to enable the student to obtain by examination a formal qualification is vocational training . It also seems to me that a course leading to a degree which is a condition of admission to a professional institution which awards further qualifications after practical experience is capable of being vocational training .

Such an approach would be consistent with the second limb of the Court' s definition that education which provides the necessary training and skills for such a profession, trade or employment is vocational training . The latter limb is the more difficult to apply . The question is, however, whether the course provides "the necessary training and skills" for "a particular profession, trade or employment ". It is not sufficient that, because for most jobs it is necessary to read or write or to do basic arithmetic ( if that still exists as part of mathematics teaching ), training in these constitutes vocational training . There must be a sufficiently direct link between the training and the profession or trade . Thus, courses which essentially are to increase knowledge or cultural awareness or "develop the mind" would ordinarily be excluded . A course in literature, medieval history or classics may be invaluable for the successful career of the diplomat, the politician or the clergyman but they do not have a sufficiently direct link with the skills needed in those particular professions .

Whether such courses could be sufficient to constitute vocational training for teachers, particularly at university, was raised in argument . It may be that there are such courses specifically designed to prepare for a teaching qualification or to provide the skills and training for the students to teach the subject to others . If so such a course is capable of being vocational training . If it is not so geared then to my mind such a course is to be treated as general education rather than vocational training .

In this context no distinction is to be drawn between the liberal professions and other trades or employments, nor between courses which usually lead to a contract of employment and those which prepare people to practise independently in the so-called liberal professions . To distinguish between the liberal professions and others is unreal, since many doctors, pharmacists, architects and lawyers are employed under contracts of employment just as are other workers .

Nor is the Community prohibition on discrimination limited to those who are already workers and who wish to undertake further training, or to those who undertake training in the course of industrial employment . I do not accept the suggestions which were put forward that vocational training can only take place in the framework of a profession rather than in order to pursue or with a view to a profession . It covers all those who undertake education of the kind indicated .

I have throughout referred to the nature of the course because it is that which has to be considered . The intention of the particular student is not to my mind an appropriate test . A student taking the same course as Miss Gravier' s would be following a course of vocational training even if, committed or doomed to a role in a family business, he was merely seeking four years of a culture which he found more immediately appealing than a course in Latin or philosophy . Students may or may not know what they want to do next, or they may change their minds after beginning a course . Whether they are following a course of vocational training is independent of their intentions .

If this is the right approach, as I think it is, there will be difficult cases, not least where students can amalgamate a wide range of courses, but since in my view it is not possible to distinguish between institutions ( here universities against other specialized institutions of higher education ) the difficulty has to be faced, and the overall relevance of the course to a particular profession, trade or employment assessed .

Thus, in relation to students who go to Belgium solely to undertake vocational training in universities, Belgium may not charge higher fees than those charged to Belgian nationals .

It follows in my view, in answer to the second ground of complaint, that it is wrong to refuse to register students who do not pay the minerval, and to the extent that Article 16 ( 2 ) empowers such an action it is in breach of Community law . If, however, the minerval is abolished, the discrimination complained of under both the first and the second heads in relation to the minerval will disappear . In so far as the Commission sought in its final arguments a wider order under the second ground of complaint, relating to the removal of all discrimination in the financing of students, I would not accept it . Gravier was stated expressly to concern neither "the organization of education nor even its financing, but rather the establishment of a financial barrier to access to education for foreign students only" ( paragraph 18 ): "education organization and policy are not as such included in those spheres which the Treaty has entrusted to the Community organizations ". In any event, central funding by Member States of education poses much broader issues . On a more particular matter I remain of the view provisionally expressed in my Opinion in Gravier that maintenance grants to enable students to live while studying are on a different footing, if indeed a refusal of such a grant can be properly categorized as a barrier to access to vocational training .

On this view of the first and second questions, it is not necessary to review in detail Belgium' s argument that the Commission' s submissions on financing are inadmissible ( which I reject, since they are the Commission' s conclusions on the effect of the ruling it was hoping to obtain, rather than a separate ground ) or that Article 16 ( 2 ) of the 1985 Law was aimed, not specifically at Community students who refuse to pay the minerval, but at all students, Belgian or otherwise, who wish to repeat a year for the second time . I reject that argument also; Article 16 ( 2 ) certainly does cover, inter alia, Community students who refuse to pay the minerval in respect of vocational training courses at Belgian universities . To that extent, Article 16 ( 2 ) is incompatible with Community law .

The third and fourth complaints relate to Article 59 ( 2 ) of the 1985 Law which covers non-university students and, so far as relevant, students in special and higher non-university education . The third complaint is that a residence permit valid for more than three months is not issued to the Community student seeking to undertake vocational training unless he has registered for a course . When he applies to register, he will only be exempted from paying the minerval ( which is payable in full at registration ) if he has a residence permit . Since he cannot have a residence permit until he has registered for a course he must pay the minerval . The fourth complaint is that when he applies for a residence permit he must show that he has sufficient means to support himself ( set at BFR 12 000 per month ) which is a condition not imposed on Belgian students .

Article 59 ( 2 ) of the 1985 Law clearly exempts from the minerval foreign students admitted to stay for more than three months or to become established in Belgium pursuant to Articles 10 and 15 of the 1980 Law as amended by the 1984 Law . Article 10 gives a right to stay more than three months to those foreigners whose right is recognized by law or by royal decree . By virtue of the amendment to Article 58 of the 1980 Law, only those wishing to study in higher education and the preparatory year for higher education ( and not as previously those in all levels including secondary and technical education ) have the right to stay more than three months and then only if they can produce the necessary certificate that they are, for example, enrolled for a course . They can only be entitled if they have paid the enrolment fee payable at the time of enrolment .

On the other hand the Royal Decree of 30 August 1985 ( Moniteur belge of 12 September 1985 ) appears to exempt from the enrolment fee students in so far as by registering in an educational establishment they obtain access to vocational training .

It would thus seem that the student in non-university higher education, which constitutes vocational training, is exempted from the enrolment fee, including the student in technical institutions, even if the latter does not have the right of residence .

The Commission contends that the student cannot register, without paying the minerval, unless he has a residence permit, so that the vicious circle is once again complete . It is said in reply that the Community student can stay in Belgium for three months during which time he can register and then obtain a long residence permit .

To the extent that registration and the right of residence are by Belgian law dependent on payment of the minerval, it seems to me that the Belgian rules are in conflict with the decision in Gravier . Once the minerval is removed as being contrary to Community law for those students undertaking vocational training in institutions of higher non-university education, this problem will, it seems, cease to exist .

The Commission contends further that if educational institutions are barred from charging higher fees to university students they will refuse to register them because they will receive no central funding in respect of such students . Methods of financing universities are not dealt with in Gravier and seem to me, on the arguments so far, to be in principle outwith the scope of application of the Treaty . Even if it can be argued that methods of central financing can prove a barrier to access, it seems to me to be impossible to decide this issue on such a hypothetical basis .

There has been discussion in the case as to whether students have an independent right to move into a Member State of which they are not nationals . Belgium contends that they do not have such a right on the basis of such cases as 66/77 Kuyken v Rijksdienst voor Arbeidsvoorziening (( 1977 )) ECR 2311 and 53/81 Levin v Staatssecretaris van Justitie (( 1982 )) ECR 1035 . The right, it is said, only belongs to those who are economically active . It does not seem to me that this broader issue, which has not been fully argued, falls within the compass of the present application . In any case the judgment in Kuyken was specifically said to be related to specific articles of the regulation there in question .

Fourthly, it is said that by requiring that foreign students wishing to undertake higher education must have adequate means of subsistence as a condition of exemption from the minerval, Belgium violates Articles 5 and 7 of the Treaty . This is not a direct requirement of the ground for exemption contained in Article 59 ( 2 ) of the 1985 Law, but it flows from a construction of Articles 10, 58 and 60 of the 1980 Law as amended .

In so far as the means of subsistence is a condition of the grant of a right of residence, itself a condition of the right to exemption from the minerval, it seems to me that it falls to be criticized in the same way as the condition of the grant of a right of residence . There is no right to charge the minerval for students undergoing vocational training in non-university institutions; it is not a right which can be enforced if the student cannot prove that he has no sufficient subsistence .

It appears to be suggested by the Commission that the student has a right to enter without having to prove that he has subsistence, on the same footing as a person seeking employment, who it is said has a right of free movement for such a purpose . I think that the analogy is a false one . Even if the person seeking work has such a right, which the Court appeared to accept in the judgment of 18 June 1987 in Case 316/85 Centre public d' aide sociale de Courcelles v Lebon, he is available for effective and genuine and not merely ancillary work . The full-time student without more is not in that position . If he in fact becomes a lawful worker the position is different .

Although again this is not an issue which I consider to arise in this case, I am not satisfied that the requirements of adequate subsistence on a basis which cannot be said to be unreasonably restrictive is in breach of the Treaty . It is discriminatory in the sense that it is not required of Belgian nationals but they are in a different position since the State supports those who are needy . The Commission concedes that Belgium has no obligation to disburse public funds to support needy foreign students and the requirement that sufficient subsistence be available seems to me not to be one prohibited by the Treaty .

As to the fifth ground, Article 63 of the 1985 Law provides that only those foreign students undergoing vocational training who had instituted proceedings prior to 13 February 1985, the date of the Gravier judgment, can recover the minervals they had paid . Article 69 limits the exemption from paying the minerval by nationals of Member States duly established in Belgium who are pursuing or who have pursued an occupation there to the period after 1 October 1983 . Article 71 imposes the obligation to pay the minerval with effect from 1 September 1976 and makes effective the exemption given by Article 59 ( 2 ) from 1 January 1985 .

There was a plain intention to legalize the minerval from 1976, arguments having been raised as to whether it had been properly introduced by ministerial circular, to limit the time from which exemptions applied and to restrict radically the right of recovery, even for those students who could have claimed the benefit of the exemption from an earlier date than 1 January 1985 .

In both Forcheri and Gravier the Court held that the imposition of the minerval in question was discriminatory and in breach of Article 7 of the Treaty . The charges were therefore at all times unlawful and should not have been imposed .

Since Article 7 has direct effect, which the national courts are bound to recognize ( for example, Case 2/74 Reyners v Belgian State (( 1974 )) ECR 631 and Case 13/76 Donà v Mantero (( 1976 )) ECR 1333 ), relevant Community students who had paid such fees were in principle entitled to recover them once the Court had given its judgments in Forcheri and Gravier . Although it is for each Member State to "determine the procedural conditions governing actions at law intended to ensure the protection of the rights which subjects derive from the direct effect of Community law" it is understood "that such conditions cannot be less favourable than those relating to similar actions of a domestic nature and that under no circumstances may they be so adapted as to make it impossible in practice to exercise the rights which the national courts are bound to protect" ( Case 68/79 Just v Danish Ministry of Fiscal Affairs (( 1980 )) ECR 501, at p . 523 ).

Article 63 makes it impossible to recover the minerval in question in Forcheri and Gravier unless proceedings were instituted before 13 February 1985, whereas under Belgian domestic law sums paid which were not due can be recovered and a much longer limitation period is provided relating to such claims ( Articles 1235, 1376, 1377 and 2260 et seq . of the Belgian Civil Code ).

In Forcheri and Gravier the Court did not impose any temporal limits on the effects of its judgments as, by analogy with Article 174 of the Treaty, it had power to do under Article 177 of the Treaty ( Case 43/75 Defrenne v Sabena (( 1976 )) ECR 455 ).

Article 63 is a patent attempt to introduce such a limitation . Can the legislature validly do so? In my view it cannot do so any more than can a national court giving effect to the Court' s judgment . As the Court said in Case 811/79 Amministrazione delle Finanze dello Stato v Ariete (( 1980 )) ECR 2545 at p . 2553 ( and similarly elsewhere ): "The fundamental need for a general and uniform application of Community law implies that it is for the Court of Justice alone to decide upon temporal restrictions as regards the effects of interpretations which it gives ".

It follows that any restriction in the Belgian legislation on the right to reclaim the minerval by students in the position of Mrs Forcheri or at institutions of higher education where they were undergoing vocational training was introduced in breach of the Treaty and is invalid .

It is suggested by Belgium that, even apart from the effect of the ruling in Gravier it was entitled, particularly in universities, to require students to pay the minerval because of the large number of foreign students involved ( said to be 4.2 or 4.5% of students in Belgium and much higher than in other Member States ) because of the costs involved, because no taxes are paid by or by the parents of such students, because the Council Resolution of 27 June 1980 recognized that Member States should be able to take appropriate measures in the event of substantial imbalances of movements of students caused by numerical limits and other factors, because the Erasmus programme proposes that State authorities should subsidize their nationals' study abroad, as indeed, in respect of the minerval, the Federal Republic has been prepared to do .

For my part I am not satisfied on the facts that Belgium has established an inherent right to impose the minerval as a protection against an influx of foreign students or as a contribution to the cost of vocational training not demanded of Belgian students . No such right is in any event recognized or reflected in the Court' s judgment in either Forcheri or Gravier which are in absolute terms so far as the minerval is concerned . Moreover there is considerable argument as to the real number of Community students who are in Belgium . It is for example said that some 800 of such students include Luxembourg students who are in any event and by separate provision exempted from the minerval . There is also debate as to the real rate of increase in the number of such students in Belgium .

The 1985 Law makes it impossible for students to recover the minerval in respect of university education unless they had begun proceedings by 13 February 1985 . If the prohibition on discrimination applies to vocational training in universities, then in my view the Belgian law limiting the rights of students to recover the minerval paid which was not due is invalid .

It is then asked that the Court should limit the effect of its ruling in this case if it considers that vocational training can be undertaken in a university .

There is no express power to do so in the Treaty in respect of an action under Article 169, as there is in Article 174 in respect of an action under Article 173 . The Court has accepted that such a power exists by analogy in references under Article 177 . An action against a Member State is different in that what the Court has to decide is whether a Member State has failed to fulfil a Treaty obligation . It can be said that it can do that and no more . On the other hand, in the interests of consistency between the three principal ways of bringing matters of this kind before the Court, it seems to me that by analogy the Court has power, once it has declared the breach, to define on a temporal basis any limitations on the effect of its judgment .

Since the Gravier judgment made no limitations it is argued that it is no longer possible to introduce a limitation in respect of vocational training institutions of higher education and that it would be wrong to do so since other cases may have been decided on the basis of Gravier in respect of earlier years or actions introduced subsequent to 13 February 1985 . The Commission further contends that the Court has used this power in limited circumstances and that it is only if the conditions present in Defrenne are satisfied that the power should be exercised, namely that there was risk of a serious financial repercussion, that a large number of transactions had been concluded by individuals on the basis of the law as it was believed to be and consistently with national law, and that the parties had not been put on notice that what they were doing was unlawful, indeed had been encouraged by the stance of the Commission and certain Member States to think that what they were doing was lawful .

A number of factors here seem to me to be significant .

It is true that from 1963 the importance of general principles in regard to vocational training had been recognized and that in 1971 in the general guidelines laid down by the Council the aim of vocational training was put on a broad basis . It is also true that the European Parliament had urged Belgium to remove the discriminatory minerval .

On the other hand, the 1963 Decision was primarily concerned with posts of a supervisory level and below and the recommendations made by the Commission have been limited to those . The Commission concedes that its view and the general view as to the scope of vocational training has developed . Moreover, to some extent in the letters of 18 April and 28 November 1984 approval had been given for the changes which Belgium had made . The emphasis on higher education in the Erasmus and Comett proposals and in the Council decision on comparability of vocational training qualifications ( Official Journal 1985, L 199, p . 56 ) are all relatively recent and the Commission itself did not until this action bring proceedings under Article 169 against Belgium . Moreover, until Forcheri and particularly Gravier, there was no clear statement that access to education and specifically vocational training fell within the scope of application of the Treaty .

It is also said that to have to pay back the minerval until 1976 would be grave for the other institutions and catastrophic for the universities . There is a dispute as to how much is involved - the parties are far apart - and it is impossible to decide between them . The sum on any view is substantial : all of it was paid on the basis that it was lawfully due and there is said to be a legal doubt as to whether, if the universities paid, they would be able to recover from the State . I say "a legal doubt" because political factors may have more influence than legal ones if the question of repayment arises .

I do not think that it would be right in all the circumstances for Belgium to be obliged to pay back all the minervals of which repayment is demanded in respect of vocational training in universities from 1976 . Equally I do not think that it would be right to limit repayment or rather, in view of the President' s order requiring written undertakings, to accept that the minerval should cease to be payable from the date of the judgment in this case . Gravier put Belgium on clear notice and it was plain that some parliamentarians and two ministers thought that university education could include vocational training .

In my view a fair and just order in all the circumstances would be that the effects of the breach committed by Belgium in respect of vocational training in universities should be limited as follows :

Only those students having the nationality of other Member States who undertook vocational training at Belgian universities and

( a ) were undertaking such training at the date of the Gravier judgment or undertook it subsequently, or

( b ) had at the date of the Opinion in this case commenced proceedings for the repayment of the minerval,

should be entitled to reimbursement, subject to any argument as to unjust enrichment if they had received the amounts already from other sources, for the full period of their courses .

I say "from the date of this Opinion" rather than "from the date of the Court' s judgment" in order not to encourage a spate of hopeful new litigants prior to the judgment .

I well realize that this proposal may cause some resentment amongst students who had completed their studies before the judgment in Gravier but none of them raised the matter and the date chosen seems to me to be reasonable and one capable of implementation .

The position of non-university students is more difficult . In Gravier the Court made no such limitation and there are strong arguments for saying that that position should apply to all students at comparable institutions . On the other hand, I do not read the Court' s judgments as saying that a limitation not imposed in one case can never be imposed in later cases in respect of other, even comparable, situations, although it would be wrong on any view to limit the effect of the judgment for Miss Gravier .

It seems to me that, because all the relevant students were ex hypothesi undergoing vocational training and because there is similarity between some courses in universities and other institutions, it would be right to treat all alike . It would be unfair to limit the repayment in respect of university students but not to do so in respect of students in other institutions, not least since in the Gravier case the question of a limitation was not raised .

I would accordingly limit Belgium' s liability for its breach in respect of non-university vocational training in the same way as vocational training in universities .

Accordingly, in my opinion this action is admissible and the Kingdom of Belgium is in breach of its obligations in so far as, read with other legislation and administrative measures in force in Belgium, the provisions of the 1985 Law :

( a ) empower universities :

( i ) to require Community students to pay the minerval as a condition of access to vocational training, and

( ii ) to refuse to register such students for such training if they do not pay the minerval where such minerval is not charged in the case of its own nationals;

( b ) lead to the imposition of the minerval on Community students wishing to receive vocational training at Belgian educational establishments other than universities;

( c ) limit the right to reclaim minervals charged in the past both as to the classes of Community national who may make such claims and as to the type of vocational training in respect of which such claims may be made .

For my part I would limit the effect of the judgment to provide that only those students of the nationality of other Member States who undertook vocational training, whether in Belgian universities or other educational institutions, and

( a ) were undertaking such training at the date of the the Gravier judgment or who undertook it subsequently, or

( b ) have at the date of the Opinion in this case commenced proceedings for the repayment of the minerval

should be entitled to reimbursement, subject to any argument as to unjust enrichment if they had received the amounts already from other sources, for the full period of their course . It goes without saying that any judgments already given in favour of such students would be given effect .

The Commission has succeeded to a substantial extent, though not entirely . In my view the appropriate order is that Belgium should pay two-thirds of the Commission' s costs .