Opinion of Mr Advocate General Sir Gordon Slynn delivered on 15 March 1988. - Belgian State v René Humbel and Marie-Thérèse Edel. - Reference for a preliminary ruling: Justice de paix de Neufchâteau - Belgium. - Non-discrimination - Access to education - Enrolment fees. - Case 263/86.



European Court reports 1988 Page 05365



Opinion of the Advocate-General

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My Lords,

Mr and Mrs Humbel, the defendants in the national proceedings, are French nationals resident and, at least in Mr Humbel' s case, working in Luxembourg . Their son Frédéric, born in 1966, attended Belgian schools from 1977 onwards and fees known as "minervals" of varying amounts were paid in respect of his education from school year 1978/79 to school year 1984/85 inclusive, after which the minerval was abolished .

The national proceedings before the juge de paix at Neufchâteau leading to this reference under Article 177 concern the minerval of BFR 35 000 for school year 1984/85 which Mr Humbel refuses to pay and which the Belgian State is seeking to recover from him . In other proceedings, Mr Humbel has apparently obtained a judgment against the Belgian State ordering repayment to him of the minervals paid in previous years; that judgment is presently on appeal .

The national court asks three questions . First, do the studies in question constitute vocational training? Second, if not, can Frédéric be said to be a recipient of services within Article 59 and is the charging of a minerval a restriction of his freedom to go to Belgium to receive such services? Finally, if Luxembourg nationals are entitled to send their children to Belgian educational establishments without paying a minerval, can a French worker resident in Luxembourg claim the same right?

As to the first question, in Case 293/83 Gravier v City of Liège (( 1985 )) ECR 593 the Court held that the imposition on Community nationals of a charge such as the 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, read with Article 128, vocational training being defined as "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 ... whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education" ( paragraph 30 ).

It does not appear to be in dispute in these proceedings that the minerval charged in respect of Frédéric' s education was levied solely on nationality grounds . It would not have been levied had he been a Belgian or Luxembourg national . Whether the course he followed constitutes vocational training as defined in Gravier seems to me to be a question essentially for the national court . As I see it, it is only in very clear cases that this Court can rule that a course is vocational training ( as it did in the judgment of 2 February 1988 inCase 24/86 Blaizot and Others v University of Liège and Others ECR 379, but as it refrained from doing expressly in Gravier itself ).

The course at issue is given at a secondary school known as a technical institute . This does not prevent it being vocational training since the Court said in Gravier that the age of the pupils and level of the training was irrelevant . The course itself is of six years divided into three so-called "degrees" of two years each . The year in respect of which the disputed minerval was paid was Frédéric' s fourth year and it is accepted that during that year the subjects he studied were quite general ( such as languages, mathematics, economics, general science, typing ). In the fifth and sixth years, however, some rather more technical subjects are studied . Mr Humbel and the Belgian State seem to agree that the training given in the last two years is vocational and, indeed, it appears that no minerval was charged in respect of those years . They disagree on the question whether it is possible to take the course year by year and charge a minerval in respect of the years in which the education was not vocational . Mr Humbel' s approach seems to me the correct one - it is necessary to look at the course as a whole and decide whether it is a vocational course, and the fact that a course includes an element of general education is not fatal to its status as a vocational course, as the Gravier definition makes clear .

This approach is confirmed by Blaizot in which, dealing with Belgian university courses in veterinary medicine which were divided into two three-year cycles known as "candidature" and "doctorat" respectively, the Court held that the second cycle presupposed the completion of the first and the two cycles made an indivisible whole ( paragraph 21 of that judgment ). I am not at present sure - though it is a matter to be investigated by the national court - that there is the same link between the present courses as there was between the two courses in Blaizot .

However, even if the course is to be seen as one, it is not obvious that the course taken as a whole is vocational . The first four years ( including the year in issue in these proceedings ) seem from what this Court knows to be largely, if not entirely, general education . Moreover, the Court was told at the hearing that, even in the final two years when the technical subjects account for their highest proportion of the training given, they only amounted to 13 hours per week whereas 19 hours per week were devoted to general subjects . It seems to me that, when it said in Gravier that a vocational course might include "an element of general education", the Court had in mind a subsidiary or minor proportion . It is debatable whether a course in which the vocational element was only 40% could be said on balance to be a vocational course .

In any case, even if the technical subjects were preponderant, it would be necessary, before the course could be characterized as vocational within the Gravier definition, to show that it prepared for a qualification, or provided the necessary training and skills, for a particular profession, trade or employment .

The Court seems to have taken the same approach in paragraph 19 of the Blaizot judgment where it said, in respect of university courses, that they may be vocational not only if they lead to the required qualification for a particular profession, trade or employment but also in so far as they confer the necessary training and skills (" aptitude particulière", the phrase used in Gravier ) as where the student needs certain knowledge for the pursuit of a profession, trade or employment even if a formal certificate is not required by law or administrative provision .

The Court was not told for what particular profession, trade or employment, if any, Frédéric' s course was relevant .

I consider, therefore, that the first question should be answered on the lines that it is for the national judge to evaluate the details of the course ( which this Court does not really have ) to see whether it satisfies the definition of vocational training in Gravier and Blaizot .

If I had come to the view that this first question fell to be decided by this Court then I would not be satisfied on the information available that this course, even taken as a whole, was vocational training within the meaning of Gravier . It seems to me to be a general educational course with a few subjects of recent origin (" informatique ") which are now on the borderline of general and technical education . The actual year in issue is not, if taken alone, vocational training .

If the national court finds that Frédéric' s course was not vocational, the second question relating to the Treaty provisions on services arises .

Mr Humbel, supported by the Commission, makes an argument similar to one raised by Miss Gravier which I considered in my Opinion but with which the Court did not need to deal in its judgment since it accepted that a vocational training course fell within the ambit of the Treaty so that Article 7 applied . Put shortly ( as it may be since I dealt with the point fully in Gravier ), it is as follows . The provision of education at a school or other seat of learning is the provision of a service . Frédéric was therefore a recipient of that service and, as such, falls within the scope of the Court' s ruling in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro (( 1984 )) ECR 377, notably the following paragraph :

"... the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even in relation to payments ... tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services ." ( paragraph 16, ECR 403 )

That case is not directly in point here since it concerned restrictions on freedom to make payments for services received abroad imposed by the home State of the recipients of the services .

I accept, as I accepted in Gravier, that education is capable of constituting a service within the non-exclusive definition contained in Article 60 of the Treaty . I do not think that the fact that Frédéric received this service for a period of some six years necessarily takes the matter outside the scope of the Treaty provisions on services, which some would say must be of a transitory nature given the contrast with the more permanent nature of "establishment" covered in Articles 52 to 58 of the Treaty . Where a provider of a service goes very often to the Member State in which his services are to be received, the question whether he is established in that State may arise . However, as Article 60 ( 3 ) clearly implies, that is only one way in which services within the meaning of the Treaty may be provided . It may equally be that neither provider nor recipient move, the service being provided and paid for by post or more modern forms of communication, or, as here and in Luisi and Carbone, that the recipient moves . In neither of the latter situations, it seems to me, is the distinction between establishment and services of relevance .

The United Kingdom Government argues that the Treaty provisions on services aim to free the provider of services from restrictions, whether imposed upon him or upon the persons desirous of receiving his services ( as in Luisi ). They do not, however, require him to provide those services against his will . In other words, he may use the freedom as much or as little as he likes . Refusal to supply services may be covered by other provisions of the Treaty, notably the competition rules . His unwillingness to supply is not a "restriction" within the chapter on services and neither is his readiness to supply certain classes of recipient on special or more onerous terms .

There is much force in this argument, particularly as regards the supply of services by natural or legal persons independent of the State . However, when a service is supplied by the State or an emanation thereof ( as in the case of a State school ), different considerations may apply and it seems to me that the State' s unwillingness to supply except on terms discriminatory against nationals of other Member States may in certain circumstances constitute a restriction forbidden by Articles 59 and 60 .

However, it does not seem necessary to pursue these points in any depth because they proceed on the basis that the education received by Frédéric is a service within the Treaty meaning . I consider, for the same reasons as I gave in my Opinion in Gravier ( loc . cit ., pp . 602 to 604 ), that it is not a service because it does not satisfy the test laid down by Article 60 according to which "services shall be considered to be 'services' within the meaning of this Treaty where they are normally provided for remuneration", a criterion which I do not think can be simply ignored .

My view, with the benefit of the arguments advanced in this case, remains that education provided by the State is not provided "for remuneration ". The State is not a commercial organization seeking a profit or indeed to recover its costs and break even . If an organization which does not seek profit ( not having a "but lucratif ") cannot take advantage of the freedom to establish and to provide services in other Member States conferred by the Treaty ( as is clear from Articles 58 and 66 ), it seems to follow that would-be recipients of services provided by such an organizm cannot rely on the Treaty either .

Profit-making ( or profit-seeking ) organizations are generally financed by payments for goods sold or services rendered (" remuneration "). Their object in selling goods or providing services is precisely to receive remuneration . State education, however, like health care, is largely financed from State taxes . Both are provided as a matter of what might broadly be termed social policy . The fact that a charge, usually nominal but exceptionally approximating to the cost of the services, is levied on some recipients does not change the position . I do not think that Mr Advocate General Warner had this situation in mind in his Opinion in Case 52/79 Procureur du roi v Debauve (( 1980 )) ECR 833, for the reasons I gave in Gravier, and I do not think that the Commission or Mr Humbel can derive assistance from that Opinion .

Mr Humbel argues, as was argued in Gravier, that teachers are paid and bills for the running expenses of schools are met, so that it cannot be said that the services are not provided for remuneration . This cannot be the relevant test to my mind . Charities and religious orders also employ people and pay for heat and light . They may also make a charge for certain services . The real test is whether the services are provided as part of an economic activity . For economic, one could equally well say "commercial" or "professional ". That seems to me to be the meaning of "normally provided for remuneration ". The question is not whether the teachers are remunerated, but whether ( or how ) the school is remunerated ( or financed ).

"Remuneration" within Article 60 will almost invariably be a payment made by or on behalf of the recipient which is related to the economic cost of providing the services or is otherwise fixed by commercial criteria ( as where a service is provided free or cheaply in hopes of attracting more work or in response to competitive pressures ). Such remuneration is not provided, to my mind, when the recipient receives the service without charge or if he pays for it with a grant already received from the State or if he pays for a service provided by or on behalf of the State and then all or a proportion of that charge is reimbursed by or on behalf of the State, as happens in the case of United Kingdom university tuition fees ( an example raised in argument ) and in the case of some countries' health-care schemes .

The analogy with health care is striking since, although Community nationals by and large are entitled to medical care throughout the Community, that entitlement is underpinned by a complex system designed to determine which State should ultimately bear the cost of the treatment . It is to my mind unfortunate that no such system for education throughout the Community yet exists .

I therefore conclude, as in Gravier, that the student cannot rely on the services provisions of the Treaty to claim a right to education when such education is not provided "for remuneration ". The remainder of the second question, and in particular the issue whether the minerval constitutes a "restriction" on the receipt of services, therefore does not require an answer .

I turn to the third question which requires a consideration of Article 48 of the Treaty and of Article 12 of Regulation No 1612/68 ( Official Journal 1968, English Special Edition, p . 745 ) which provides that "the children of a national of a Member State who is or has been employed in another Member State shall be admitted to that State' s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory ".

Mr Humbel has never, so far as the Court is aware, worked in Belgium . The children of Luxembourg nationals, irrespective of residence, whether in the Grand Duchy or elsewhere, are entitled to go to Belgium for their schooling without paying any fees . The Court does not know whether that results from a formal agreement or an informal arrangement between Belgium and Luxembourg . The Court put a written question to the Luxembourg Government on this point but received no reply . Counsel for the Belgian Government was unable to enlighten the Court at the hearing .

It emerges from the observations of Mr Humbel and the Commission that the Belgian legislation in question leads to various anomalies . The minerval is not charged for children of French nationals residing in a French commune any point of which is within 15 kilometres of the Belgian border; however, a Frenchman who resides in any part of Luxembourg has to pay if his children attend Belgian schools .

Mr Humbel contends that such discrimination on nationality grounds is simply prohibited by Article 7 of the Treaty . However, as Gravier shows, it is necessary to show that the discrimination is practised in circumstances which fall within the scope of the Treaty .

Mr Humbel also alleges that the Belgian Government seeks to justify that discrimination by reference to Article 233 of the Treaty which provides :

"The provisions of this Treaty shall not preclude the existence or completion of regional unions between Belgium and Luxembourg, or between Belgium, Luxembourg and the Netherlands, to the extent that the objectives of these regional unions are not attained by application of this Treaty ."

Mr Humbel argues that this article provides Belgium with no defence . The Benelux Union cannot be relevant since similarly favourable treatment is not extended to Dutch students; the Belgo-Luxembourg Economic Union has nothing to do with students . Furthermore, the text of the article, as the Court' s judgment in Case 105/83 Pakvries (( 1984 )) ECR 2101 confirms, makes it clear that it only applies when the objective of the regional union cannot be achieved under the Treaty which is not the case here .

However, it seems to me that, like Article 7, Article 233 only falls to be considered if the discrimination practised is contrary to the Treaty, which remains to be established .

Mr Humbel then alleges that the Belgian practice restricts the free movement of French workers contrary to Article 48 . However, as I see it, and as the Commission and the Italian Government ( which intervened at the oral hearing solely on the third question ) seem also to argue, the particular rights of migrant workers in respect of their children' s education are to be deduced from Article 12 of Regulation No 1612/68 .

However, the Commission has to concede that the letter of Article 12, and in particular the requirement that the worker' s children have to reside in the host State, precludes the Court from applying it to the present case . Nevertheless, the Commission considers that the discrimination is contrary to the spirit of Article 12 and suggests that Article 12 might require Luxembourg to provide free education in other Member States for children of migrants resident in Luxembourg in respect of types of education not available in Luxembourg itself but which are available free to the children of Luxembourg nationals in another Member State .

Likewise, the Italian Government ( which starts from the basis that the discrimination complained of is between Luxembourg workers and migrant workers of other Community nationalities resident in Luxembourg ) argues that Article 12 is not in terms limited to education provided on the territory of the host State . If the host State procures for the benefit of its own nationals the possibility of studying abroad on advantageous terms, that benefit must be extended equally to other Community nationals resident on its territory or at least those covered by Regulation No 1612/68 . The purpose of that regulation, implementing Article 48, is to integrate the migrant into the host State and would be frustrated if the migrants' children are not afforded chances of educational and cultural advancement equal to those enjoyed by host State nationals .

Although there is much force in this argument, it is, as I think counsel for the Italian Government recognized, primarily directed at the situation obtaining in Luxembourg which is not in issue before the Belgian court . As the Commission recognized at the end of the day, Article 12 cannot reasonably be extended so as to require Belgium to extend advantages to migrant workers resident in Luxembourg which it is not obliged to grant, but has conceded on a basis unknown to the Court, to Luxembourg nationals .

Accordingly, I consider that the questions of the juge de paix at Neufchâteau be answered along the following lines :

"( 1 ) It is for the national court to rule whether the course followed by Frédéric Humbel constitutes vocational training as defined in Gravier .

( 2 ) Education provided by the State is not a service within the meaning of Articles 59 and 60 of the EEC Treaty since it is not provided for remuneration .

( 3 ) Article 12 of Regulation No 1612/68 does not require a Member State to make education available to migrant workers resident in another State on the same basis as it makes it available to nationals of that other Member State ."

Mr Humbel' s costs and those of the Belgian Government, the parties to the national proceedings, fall to be dealt with in those proceedings . No order should be made as to the costs of the Italian, Luxembourg and United Kingdom Governments or of the Commission .