WRITTEN QUESTION P-3269/02

by Maria Sanders-ten Holte (ELDR) to the Commission

(12 November 2002)

Subject: Free movement of services and persons with reference to attending private denominational schools in a Member State other than the Member State of origin

Although the free movement of persons, services and capital is written into the EC Treaty, there are still some areas where this freedom is still out of the question. For example, students from North Rhine Westphalia, who want to attend a private denominational school in another Member State, in this case the Netherlands, frequently encounter major problems because North Rhine Westphalia does not permit students to complete their compulsory education abroad.

Can the Commission say whether the provisions on freedom to provide services and freedom of establishment for cross-border activities apply to the attendance, establishment and maintenance of private denominational schools, even if they are predominantly State funded?

Is it compatible with the freedom to provide services and the general ban on discrimination under Article 12 of the EC Treaty (which prohibits any discrimination on grounds of nationality), for students from one Member State to be prohibited from attending a non-vocational private denominational school in another Member State, even if the school covers the full period of compulsory education and is recognised and funded by the State, on the grounds that compulsory education can only be completed in the student's own country?

If so, is this also the case when the certificates and final diplomas awarded by schools in the other Member State are recognised both in that country and in the country of origin, irrespective of whether they are awarded to citizens of the Member State or citizens of the Member State of origin who have settled in the country.

Can the Commission say whether Article 45 of the EC Treaty (non-application of the right to freedom of establishment to activities connected, even occasionally, with the exercise of official authority) applies to the right to attend and establish a private denominational school in another Member State?

Reply given by Mr Bolkestein on behalf of the Commission

(17 December 2002)

On the basis of the information provided by the Honourable Member with regard to problems encountered by students of the region of North Rhine-Westphalia, the Commission does not have sufficiently detailed information to be able to decide on whether Community law has been violated. However, in general terms, the Commission can indicate the following.

As indicated by the Court of Justice in its Wirth judgment(1), courses given in a higher education establishment mainly financed by public funds do not constitute services within the meaning of the EC Treaty insofar as for such courses the main characteristic of remuneration is lacking. The education fees which these establishments receive from students could not in fact be regarded as consideration for the services in question.

On the other hand, courses provided in other higher education establishments, including those which try to make a commercial profit and whose funding stems mainly from private sources in particular the remuneration to be paid by students or their parents constitute services within the meaning of the EC Treaty.

Therefore, in the light of these indications provided by the Court's case-law in this specific area, it is possible to evaluate, on a case by case basis, whether the installation and administration of specific educational establishments can come under freedom of establishment (Article 43 of the EC Treaty) and whether attendance of such establishments by pupils can come under freedom to provide services (Article 49 of the EC Treaty).

For situations which are covered by these freedoms under the EC Treaty, obstacles set by authorities (whether central or regional) of a Member State preventing pupils from attending courses provided in another Member State instead of in their own country are likely to constitute a violation of the prohibition of discriminatory measures as provided notably by Articles 43 and 49 of the EC Treaty. This follows from the Court's case-law which, for example, has specified that a Member State's regulations which provide financial advantages for participation in training courses organised on its territory compared with those given abroad constitute a difference in treatment based on the place of provision of the service which is forbidden by Article 49 of the EC Treaty(2).

Furthermore, for such situations covered by the EC Treaty's field of application, Article 45 of the EC Treaty cannot justify an obstacle to the right to attend and establish a school. In fact, according to the Court of Justice's established case-law, this EC Treaty provision, as a derogation from a fundamental freedom, must be interpreted in a strict manner and be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority(3).

(1) Cf. judgment of 7 December 1993, case C-109/92.

(2) Cf. the Vestergaard judgment of 28 October 1999, case C-55/98, point 22.

(3) Cf. judgment Commission v Spain of 29/10/1998, case C-114/97, points 34 and 35.