Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française.
Date: 2010-04-13
28. As a preliminary point, it should be recalled that whilst European Union law does not detract from the power of the Member States as regards the organisation of their education systems and of vocational training – pursuant to Articles 165(1) and 166(1) TFEU – the fact remains that, when exercising that power, Member States must comply with European Union law, in particular the provisions on the freedom to move and reside within the territory of the Member States (see, to that effect, Case C-76/05 Schwarz and Gootjes-Schwarz  [2007] ECR I‑6849, paragraph 70, and Joined Cases C-11/06 and C-12/06 Morgan and Bucher  [2007] ECR I‑9161, paragraph 24).
31. Furthermore, the Court’s case-law makes clear that every citizen of the Union may rely on Article 18 TFEU, which prohibits any discrimination on grounds of nationality, in all situations falling within the scope ratione materiae  of European Union law, those situations including the exercise of the freedom conferred by Article 21 TFEU to move and reside within the territory of the Member States (see, to that effect, Case C-148/02 Garcia Avello  [2003] ECR I‑11613, paragraph 24; Case C‑209/03 Bidar  [2005] ECR I‑2119, paragraphs 32 and 33; and Case C‑158/07 Förster  [2008] ECR I‑8507, paragraphs 36 and 37).
32. In addition, it is apparent from that case-law that that prohibition also covers situations concerning the conditions of access to vocational training, and that both higher education and university education constitute vocational training (Case C‑147/03 Commission  v Austria [2005] ECR I-5969, paragraphs 32 and 33 and case-law cited).
40. It should be recalled that the principle of non-discrimination prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, Case C-212/05 Hartmann  [2007] ECR I‑6303, paragraph 29).
41. Unless objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect nationals of other Member States more than nationals of the host State and there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, Case C-195/98 Österreichischer Gewerkschaftsbund  [2000] ECR I-10497, paragraph 40, and Hartmann , paragraph 30).
45. A residence condition, such as that required by that legislation, is more easily satisfied by Belgian nationals, who more often than not reside in Belgium, than by nationals of other Member States, whose residence is generally in a Member State other than Belgium (see, by analogy, Case C-337/97 Meeusen  [1999] ECR I-3289, paragraphs 23 and 24, and Hartmann , paragraph 31).
47. As stated in paragraph 41 of the present judgment, a difference in treatment, such as that put in place by the decree of 16 June 2006, constitutes indirect discrimination on the ground of nationality which is prohibited, unless it is objectively justified.
48. In addition, in order to be justified, the measure concerned must be appropriate for securing the attainment of the legitimate objective it pursues and must not go beyond what is necessary to attain it (see, to that effect, Case C-527/06 Renneberg [2008] ECR I‑7735, paragraph 81, and Joined Cases C-171/07 and C- 172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I-0000, paragraph 25).
The justification relating to excessive burdens on the financing of higher education
53. Admittedly, it cannot be excluded from the outset that the prevention of a risk to the existence of a national education system and to its homogeneity may justify a difference in treatment between some students (see, to that effect, Commission  v Austria , paragraph 66).
62. It follows from the case-law that a difference in treatment based indirectly on nationality may be justified by the objective of maintaining a balanced high-quality medical service open to all, in so far as it contributes to achieving a high level of protection of health (see, to that effect, Case C-169/07 Hartlauer  [2009] ECR I-0000, paragraph 47 and case-law cited).
64. In that regard, it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent such legislation satisfies those conditions (see, to that effect, Case 171/88 Rinner-Kühn  [1989] ECR 2743, paragraph 15, and Joined Cases C-4/02 and C-5/02 Schönheit and Becker  [2003] ECR I‑12575, paragraph 82).
65. However, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (Case C‑187/00 Kutz-Bauer  [2003] ECR I‑2741, paragraph 52, and Schönheit and Becker , paragraph 83).
69. In assessing those risks, the referring court must take into consideration, first, the fact that the link between the training of future health professionals and the objective of maintaining a balanced high-quality medical service open to all is only indirect and the causal relationship less well established than in the case of the link between the objective of public health and the activity of health professionals who are already present on the market (see Hartlauer , paragraphs 51 to 53, and Apothekerkammer des Saarlandes and Others , paragraphs 34 to 40). The assessment of such a link will depend inter alia on a prospective analysis which will have to extrapolate on the basis of a number of contingent and uncertain factors and take into account the future development of the health sector concerned, but also depend on an analysis of the situation at the outset, that is to say, as it currently stands.
71. That being the case, it is for the competent national authorities to show that such risks actually exist (see, by analogy, Apothekerkammer des Saarlandes and Others , paragraph 39). According to settled case-law, it is for those authorities, where they adopt a measure derogating from a principle enshrined by European Union Law, to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it. The reasons invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments (see, to that effect, Case C-8/02 Leichtle  [2004] ECR I-2641, paragraph 45, and Commission  v Austria , paragraph 63). Such an objective, detailed analysis, supported by figures, must be capable of demonstrating, with solid and consistent data, that there are genuine risks to public health.
79. Equally, it is for the referring court to examine whether the competent authorities have reconciled, in an appropriate way, the attainment of that objective with the requirements of European Union law and, in particular, with the opportunity for students coming from other Member States to gain access to higher education, an opportunity which constitutes the very essence of the principle of freedom of movement for students (see, to that effect, Commission  v Austria , paragraph 70). The restrictions on access to such education, introduced by a Member State, must therefore be limited to what is necessary in order to obtain the objectives pursued and must allow sufficiently wide access by those students to higher education.
90. It has consistently been held that the interpretation which the Court, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, gives to a rule of European Union law clarifies and where necessary defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted can, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions are satisfied for bringing an action relating to the application of that rule before the courts having jurisdiction (see Case 24/86 Blaizot and Others [1988] ECR 379, paragraph 27, and Case C-415/93 Bosman  [1995] ECR I-4921, paragraph 141).
91. It is only exceptionally that the Court may, having regard to the general principle of legal certainty inherent in the European Union legal order, find it necessary to limit the possibility for interested parties, relying on the Court’s interpretation of a provision, to call in question legal relations established in good faith. For there to be such a limitation, two essential criteria must be fulfilled, namely that those concerned acted in good faith and there is a risk of serious difficulties (see, inter alia, Case C-57/93 Vroege  [1994] ECR I-4541, paragraph 21, and Case C-402/03 Skov and Bilka  [2006] ECR I-199, paragraph 51).
92. It is also settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effect of the ruling (see, inter alia, Case C-184/99 Grzelczyk  [2001] ECR I‑6193, paragraph 52).
93. Indeed, the Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with European Union law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed ( Grzelczyk , paragraph 53).