WRITTEN QUESTION P-3269/02 by Maria Sanders-ten Holte (ELDR) to the Commission. Free movement of services and persons with reference to attending private denominational schools in a Member State other than the Member State of origin.
Date: 2002-11-12
Institutions: European Parliament, Provisional data
Subjects: EU law, Germany, Netherlands, case-law (EU), foreign student, free movement of persons, freedom to provide services, interpretation of the law, schooling, student mobility

8.5.2003

EN

Official Journal of the European Union

C 110 E/197

Answer given by Mr Byrne on behalf of the Commission

(11 December 2002)

Community legislation lays down equivalent requirements for Community production of poultry meat and
imports of such meat from third countries in order to ensure food safety. Accordingly, there are not two
levels of protection, but only one. Border checks are the responsibility of the Member States. The
Commission conducts inspections periodically in order to monitor compliance with Community legislation
by the competent authorities of the Member States at the Community’s border posts and by the competent
authorities of third countries at all stages of the production and processing of chicken meat. Cases of
contamination of chicken meat with residues of veterinary medicines prohibited by Community legislation
(nitrofurans) have been notified to the Commission by the Member States through the Community rapid
alert system. In order to guarantee the safety of imported chicken meat, the Commission has decided to
have the Member States conduct systematic checks for residues of medicines, and especially nitrofurans, in
all imports of poultry meat from Brazil and Thailand. Whenever these checks produce negative results, the
Member States must destroy the dangerous batch. At the same time, the Commission is providing
technical assistance to developing countries in order to help them to set up a system of control that is as
effective as that developed by the Member States. In this way, the Commission is meeting its obligations to
developing countries while maintaining the level of protection of European consumers.

(2003/C 110 E/219)

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?

C 110 E/198

Official Journal of the European Union

EN

8.5.2003

Reply given by Mr Bolkestein on behalf of the Commission

(17 December 2002)

the information provided by the Honourable Member with regard to problems
On the basis of
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 (cid:1) in particular the
remuneration to be paid by students or their parents (cid:1) 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.

(2003/C 110 E/220)

WRITTEN QUESTION P-3290/02

by Giovanni Fava (PSE) to the Commission

(14 November 2002)

Subject: Emergency in Catania

Following the natural disasters which occurred recently in Sicily and which hit the area around Catania
particularly hard, and in view of the spirit of solidarity which the European Union has traditionally shown
towards less-developed regions and the particular importance it attaches to cohesion policy, would the
Commission not agree that it should redeploy the resources available under Agenda 2000 with a view to
giving absolute priority to making good the damage caused by the above disasters and that this emergency
calls for Agenda 2000 funding to be used in a flexible, targeted manner, even if this means exceeding the
specific forecasts set out in the Regional Operational Programme for Sicily?