Commission of the European Communities v Republic of Austria.
Date: 2005-07-07
16. As regards the other reason put forward by the Republic of Austria for the purpose of reopening the oral procedure, it must be borne in mind that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure should be reopened in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, Case C-209/01 Schilling and Fleck-Schilling  [2003] ECR I-13389, paragraph 19, and Case C‑30/02 Recheio – Cash & Carry  [2004] ECR I-6051, paragraph 12).
22. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission v Netherlands  [2001] ECR I-3463, paragraph 23; Case C-439/99 Commission v Italy  [2002] ECR I-305, paragraph 10, and Case C‑185/00 Commission v Finland  [2003] ECR I-14189, paragraph 79).
23. Accordingly, the letter of formal notice from the Commission to the Member State concerned and then the reasoned opinion issued by it delimit the subject-matter of the dispute, so that it cannot thereafter be extended. Consequently, the reasoned opinion and the application must be based on the same complaints (see, in particular, Case C-191/95 Commission v Germany  [1998] ECR I-5449, paragraph 55; Case C-139/00 Commission v Spain  [2002] ECR I-6407, paragraph 18, and Commission v Finland , cited above, paragraph 80).
24. However, that requirement cannot be stretched so far as to mean that in every case the statement of the complaints set out in the letter of formal notice, the wording of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings as defined in the reasoned opinion has not been extended or altered (see, in particular, the judgments cited above in Commission v Germany , paragraph 56, Commission v Spain , paragraph 19, and Commission v Finland , paragraph 81).
25. In the present case, the Commission did not alter the subject-matter of the dispute between the pre-litigation and judicial phases. In its application, the Commission formulated complaints and pleas in law identical to those referred to in the two letters of formal notice and the reasoned opinion. The Republic of Austria was thus duly informed of the nature of the infringement of Community law alleged by the Commission and, in particular, the indirectly discriminatory nature of the national provision in question, which related therefore to the conditions of access to the Austrian higher and university education system for students holding secondary education diplomas from other Member States.
26. With regard to the objection relating to Paragraph 36(4) of the UniStG, the Comm ission has clearly stated that it mentioned it only for the purposes of illustrating the fact that that subparagraph had replaced a similar provision which was directly discriminatory. It is not therefore a new complaint.
31. Under the first paragraph of Article 12 EC, within the scope of application of the Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality is to be prohibited.
32. As the Court has already held in paragraph 25 of Case 293/83 Gravier  [1985] ECR 593, the conditions of access to vocational training fall within the scope of the Treaty (see also Case C-65/03 Commission v Belgium  [2004] ECR I-6427, paragraph 25).
33. It also follows from the case-law that both higher education and university education constitute vocational training (see Case 24/86 Blaizot  [1988] ECR 379, paragraphs 15 to 20, and Case 42/87 Commission v Belgium  [1988] ECR 5445, paragraphs 7 and 8).
34. In the present case, Paragraph 36 of the UniStG lays down the conditions governing access to higher or university education in Austria. In that connection, it provides that, in addition to satisfying the general requirements for access to higher or university studies, holders of general university entrance qualifications awarded in other Member States must prove that they meet the specific requirements governing access to the chosen course, which are laid down by the State which issued those qualifications and give entitlement to direct admission to those studies.
35. In those circumstances, the provision at issue must be examined in the light of the Treaty and, in particular, in the light of the principle of non-discrimination on the grounds of nationality contained in Article 12 EC.
The plea alleging infringement of Community law
Arguments of the parties
37. Pursuant to Paragraph 36 of the UniStG, access by holders of diplomas awarded in another Member State to certain Austrian higher or university education courses is made subject to a condition to which holders of general university entrance qualifications awarded in Austria are not subject.
41. According to settled case-law, the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, in particular, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Case C-65/03 Commission v Belgium , cited above, paragraph 28, and Case C-209/03 Bidar  [2005] ECR I-0000, paragraph 51).
44. The opportunities offered by the Treaty relating to free movement are not fully effective if a person is penalised merely for using them. That consideration is particularly important in the field of education in view of the aims pursued by Article 3(1)(q) EC and the second indent of Article 149(2) EC, namely encouraging mobility of students and teachers (see Case C-224/98 D’Hoop [2002] ECR I-6191, paragraphs 30 to 32).
45. Case-law has moreover established that Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (Case C-184/99 Grzelczyk  [2001] ECR I-6193, paragraph 31, and D’Hoop , cited above, paragraph 28).
48. Consequently, the differential treatment in question could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions (Case C-274/96 Bickel and Franz  [1998] ECR I-7637, paragraph 27, and D’Hoop , cited above, paragraph 36).
Justification of discrimination
Arguments of the parties
– Justification based on safeguarding the homogeneity of the Austrian higher or university education system
63. Moreover, it is for the national authorities which invoke a derogation from the fundamental principle of freedom of movement for persons to show in each individual case that their rules are necessary and proportionate to attain the aim pursued. The reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State and specific evidence substantiating its arguments (see, to that effect, Case C-42/02 Lindman  [2003] ECR I-13519, paragraph 25, and Case C-8/02 Leichtle  [2004] ECR I-2641, paragraph 45).
66. Consequently, it must be held that the Republic of Austria has failed to demonstrate that, in the absence of Paragraph 36 of the UnistG, the existence of the Austrian education system in general and the safeguarding of the homogeneity of higher education in particular would be jeopardised. The legislation in question is therefore incompatible with the objectives of the Treaty.
– Justification based on preventing abuse of Community law
68. According to case-law, whether there is abuse or fraudulent conduct must be examined individually on a case-by-case basis and must be based on objective evidence (see Centros , paragraphs 24 and 25, and X and Y , paragraphs 42 and 43).
70. In this case, it need merely be observed that the possibility for a student from the European Union, who has obtained his secondary education diploma in a Member State other than Austria, to gain access to Austrian higher or university education under the same conditions as holders of diplomas awarded in Austria constitutes the very essence of the principle of freedom of movement for students guaranteed by the Treaty, and cannot therefore of itself constitute an abuse of that right.
– Justification based on international conventions
73. It is settled case-law that, whilst Article 307 EC allows Member States to honour obligations owed to non-member States under international agreements preceding the Treaty, it does not authorise them to exercise rights under such agreements in intra-Community relations (see, in particular, Commission v Luxembourg , cited above, paragraph 40, and Case C-203/03 Commission v Austria [2005] ECR I‑0000, paragraphs 57 to 59).