The Right to Education and Free Movement of Persons: Whose Right is it and how does the EU Protect it? Egle Dagilyte1 1 INTRODUCTION The development of the right to education at the EU level has been evolving since Articles 149 EC (education) and 150 EC (vocational training) were introduced by Maastricht in 1993. The right to education stands firmly as an individual legal right in all constitutions of the 27 Member States, including candidate countries Turkey 2 and Croatia. 3 However, is this right as firmly protected at European level as in national law, especially in situations where it limits or goes together with the free movement of persons? The aim of this paper is twofold. Firstly, I shall reconsider whether fundamental rights are always in tension with market freedoms. The ECJ has many times considered fundamental rights as a ground of justification for imposing restrictions on the market freedoms: e.g. human dignity,4 freedom of expression and freedom of assembly 5 as opposed to free movement of goods; right to strike as compared to freedom of establishment6 and freedom to provide services7. However, can there be cases where fundamental rights and market freedoms go hand-in-hand with each other? Can there be situations of non-contradiction between the two which involve the undying questions of subsidiarity and the EU/Member States competences?8 Therefore, I will address the problem of tensions identify which tensions are ‘real’ (fundamental right v fundamental right). To this end, I will suggest that it may be more correct to frame the question of tensions between fundamental rights and economic freedoms as ‘norm v norm’ debate, instead of a ‘right v right’ debate. The second aim of this paper is to raise the question whether long-term resident third-country nationals (LTR TCNs) should also be considered as rights holders in the enlarging European Union. 1 PhD candidate, King’s College London, School of Law. Email: [email protected]. 2 Art 42 of the Constitution of the Republic of Turkey (1982), which is entitled ‘Right and Duty of Training and Education’. 3 Articles 65-67 of the Constitution of the Republic of Croatia (1990). 4 C-36/02 Omega [2004] ECR I-9609. 5 C-112/00 Schmidberger [2003] ECR I-5659. 6 C-438/05 Viking [2007] ECR I-10779. 7 C-341/05 Laval [2007] ECR I-11767. 8 See Art 6(c) TFEU, which states that the areas of the EU action to “support, coordinate or supplement the actions of Member States” include education, vocational training, youth and sport. The exercise of the Union's supportive competence in the field of education is governed by the principles of subsidiarity and proportionality. 1 The paper argues that social rights of LTR TCNs legally residing and working in the EU must be upheld and enforced in the same way as social rights of the EU citizens. Today, despite a certain degree of integration of LTR TCNs into European society, their status remains inconsistent with the EU’s and the Member States’ legal and political commitments to social human rights. Europe needs migrant workers from third countries, but it is unprepared to treat them equally with its citizens. Therefore, in the second half of the paper I will explain why it is time to consider LTR TCNs as an inherent part of the European economic and political society and in this light I will address the problem of protecting LTR TCNs right to education when different tensions arise (‘real’ and ‘other’). Both questions will be posed in the light of the recent case C-73/08 Bressol & Chaverot 9 which deals with the fundamental right to equal access to education and free movement of persons. This case is a reflection of the continuing ‘competence struggle’ between Member States and the Commission10 as to who has the priority to regulate the right of access to education when individuals travel to study to another Member State and exercise the economic right to free movement. Before commencing to discuss different types of tensions, I would like to clarify that for the purposes of this article the right to education is understood as the right to equal access to education. This means we will exclude equal access to education funding (e.g. recent ECJ cases, including Grzelczyk,11 Bidar,12 Forster13 etc). Further, in this article LRT TCNs are understood as long-term resident TCNs who have been legally residing in one of the Member States for a minimum of five years without major interruptions, provided they have a minimum level of resources and do not constitute a threat to public order or public security. 14 This definition excludes students, diplomats, refugees, persons benefiting from temporary protection, asylum seekers, short-term labour migrants, illegal immigrants or individuals who for other humanitarian reasons cannot be returned to their country of origin. 9 Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française; not yet decided by the ECJ. The opinion of AG Sharpston delivered on 25 June 2009 supports the Commission’s view: the Belgian legislation infringes EU law on non-discrimination and cannot be effectively justified in order to remain in force. 10 See Case C-65/03 Commission v Belgium [2004] ECR I-6427 and Case C-147/03 Commission v Austria [2005] ECR I-5969. In both cases the ECJ held that the Member States infringed EU law, as especially the principle of non-discrimination on the grounds of nationality, by imposing more difficult university entrance conditions for nationals of other Member States. As a result, in 2006 Belgium capped the number of foreign students (mainly French) of 30% in a number of medical subjects dominated by non-nationals, establishing a quota of 70% for students who are resident in Belgium. On the day the judgement in Commission v Austria was delivered, Austria ended unlimited access to free medical education, too: 75% of the places in Austrian medical schools would be reserved for students who finished their secondary education in Austria; 20% of the places were left for EU students; and 5% for third-country nationals. 11 Case C-184/99 Grzelczyk [2001] ECR I-6193. 12 Case C-209/03 Bidar [2005] ECR I-02119. 13 Case C-158/07 Förster [2008] ECR I-8507/ 14 Articles 4-7 of the Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003] OJ L16/44. 2 In order to discuss the two main questions raised, I would first like to have a look at the tensions and right-holders behind Bressol & Chaverot. Therefore, it appropriate to briefly outline the background of the case before attempting to answer the two main questions outlined above. 2 BRESSOL & CHAVEROT AND THE RIGHT TO EDUCATION IN THE EU 2.1 Prelude to Bressol & Chaverot: Belgium and Austria in 2003 The story behind the Bressol & Chaverot judgement goes back to 2003, when two similar cases appeared in Belgium and Austria. In both the action was taken by the Commission against the two Member States on the grounds of discrimination on nationality regarding free access to education. In Commission v Belgium 15 national legislation on recognition of foreign qualifications and diplomas was in question. It prescribed that nationals of other Member States possessing qualifications awarded on successful completion of secondary studies at a home Member State, must ‘take and pass an aptitude test.’ 16 This applied to courses in medical studies, dental and veterinary science, and agricultural engineering in Belgium. The Commission claimed that this additional requirement constituted a condition of access to higher and university education as it was the Gravier17 case. The Court, therefore, held that Belgian nationals and nationals of other Member States (i.e. Luxembourg) were treated differently, which resulted in discrimination on the grounds on nationality.18 As Belgium did not put forward any justifications for such a treatment, the ECJ concluded that it ‘failed to fulfil its obligations under Article 12 EC, read in conjunction with Articles 149 EC and 150 EC.’19 In Commission v Austria 20 the Law on University Studies 21 was questioned, where special requirements for foreign EU students were established. The Law on University Studies stated that ‘[i]n addition to possession of a general university entrance qualification, students must demonstrate that they meet the specific entrance requirements for the relevant course of study’.22 The Court held that these rules of national law regulate the conditions of access to higher or university education. 23 Therefore, they fall within the scope of the treaty and must meet the non-discrimination requirements 15 Case C-65/03 Commission v Belgium [2004] ECR I-6427. 16 Para 13. 17 Para 15. 18 Para 29. 19 Para 31. 20 Case C-147/03 Commission v Austria [2005] ECR I-05969. 21 Universitäts-Studiengesetz. 22 Paragraph 36(1) of Universitäts-Studiengesetz. 23 Para 34. 3 as stated in Art 12 EC. According to the ECJ, Austrian law constituted indirect discrimination. Such rules resulted in higher proportion of Austrian students than EU students in Austrian universities. The fact that Paragraph 36(1) of the Law on University Studies applied to all students did not matter, as the effect of it was discriminatory and hence infringing the non-discrimination principle24 on the grounds of nationality. The Court concluded that this indirect discrimination could not be justified either on safeguarding the homogeneity of the Austrian higher or university education system,25 or preventing abuse of Community law,26 or because of Austria’s obligations under international law.27 ‘In rejecting the justification of the Austrian legislation, the judgment goes to show that the ECJ is willing to go far in enforcing the principle of equality in access to education, unafraid of the substantial impact the ruling might have on the organization of the domestic education system.’ 28 As we can see, in both cases the ECJ followed the Commission’s line of arguments and disregarded Member States. Further, both cases concern the social right of EU citizens, not LTR TCNs. This begs the question: what influence did these two decisions have on the regulation and funding of public education (both for EU citizens and LTR TCNs) in Belgium and Austria? Naturally, it caused outrage from the Member States. Both countries decided not to comply with the Court’s ruling: they passed new legislation in response to the judgments. As a result of the outcome in Commission v Belgium, in March 2006 Belgian Minister for Higher Education proposed capping the number of foreign students (mainly French) at 30% in a number of medical subjects dominated by non-nationals, establishing a quota of 70% for students who are resident in Belgium.’29 On the day the judgment in Commission v Austria was delivered, Austria ended unlimited access to free medical education, too: 75% of the places in Austrian medical schools would be reserved for students who finished their secondary education in Austria; 20% of the places were left for EU students; and 5% for TCNs.30 In 2007 the Commission sent Austria and Belgium letters of formal notice regarding restrictions of access to their higher-education systems by holders of secondary education diplomas from other 24 Para 47. Para 66. The Court pointed out that similar risks to higher or university education system are also experienced by Belgium and referred to its Case C-65/03 Commission v Belgium [2004] ECR I-6427; see para 62 to that regard. Also, Austrian law was not in line with the principle of proportionality: the Court held ‘that excessive demand for access to specific courses could be met by the adoption of specific non-discriminatory measures such as the establishment of an entry examination or the requirement of a minimum grade’; see para 61. 25 26 Para 70. The right to gain access to higher or university education cannot of itself constitute an abuse of freedom of movement for students guaranteed by the Treaty. Para 75. Austria failed to take all appropriate steps to eliminate the incompatibilities of its international agreements that are not compatible with the Treaty. 27 28 S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 8. 29 S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 12. 30 E. Beerkens, ‘The Europeanisation of Higher Education’ (Presentation at CHEPS European Summer School Modes of European Integration, Enschede, the Netherlands, 6-10 July 2009) <http://www.utwente.nl/cheps/summer_school/Presentations/Beerkens.pdf>, retrieved 19 August 2009. 4 Member States,31 claiming that both countries failed to justify the new national legislation governing the matter, which discriminates on the ground of nationality. Having received responses on 28 November 2007 the Commission was forced to suspend both ongoing infringement cases and gave five years to Belgium and Austria to submit supplementary data on their situations in order to be able to judge whether the national measures in question are justified on the basis of proportionality.32 2.2 Bressol & Chaverot: law to date and likely outcomes While the Commission was waiting, another case came up before the ECJ in 2008. Once again, it was against Belgium. However, instead of the Commission as the applicant, in Bressol & Chaverot33 it was more than 60 individuals, including French students and teaching and administrative staff of higher education institutions in the French Community, 34 who challenged the Belgian legislation ‘on suspension’ with the Commission. As Garben correctly notes, another challenge (this time not involving the Commission) of the restrictive national legislation was only a matter of time: ‘the student population of Europe has proved to be litigious, pro-active and vocal, to know its way to court and not to be hesitant to seek to assert their rights, and up to now they have met with a European Court more than willing to help them do so.’35 The students in Bressol & Chaverot sought to annul the Belgian Decree 36 and disputed the difference in treatment it established between Belgian and other EU nationals for the admission to courses in question.37 What were the national arguments in favour of the legislation? ‘[T]he [Cour constitutionnelle de Belgique] in its judgment extensively dealt with the legislation under scrutiny and its legitimate European Commission, ‘Free movement of Students: the Commission Sends Letters of Formal Notice to Austria and Belgium’ (press release IP/07/76, January 2007) <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/76&format=HTML&aged=0&language=EN&guiLan guage=en>, retrieved 20 August 2009.. 31 32 European Commission, ‘Access to Higher Education: the Commission Suspends its Infringement Cases against Austria and Belgium’ (press release IP/07/1788, November 2007) <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1788&format=HTML&aged=0&language=EN&guiL anguage=en>, retrieved 20 August 2009. The change of Commission’s behaviour was due to the fact that Austria demanded a special Treaty protocol, which would allow it to set a cap on the number of foreign university students. Garben gives rightful comments on Austria’s political game: ‘In what one could call a master class in political bargaining, the Austrian government seized the opportunity of the Lisbon Treaty negotiations to wheedle a promise from the Commission to suspend the infringement proceedings, allowing it to keep in place its condemned discriminatory legislation;’ S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 5. 33 C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, not yet judged. The opinion of AG Sharpston delivered on 25 June 2009 in Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, not yet reported, para 3. 34 35 S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 14. 36 Décret régulant le nombre d’étudiants dans certains cursus de premier cycle de l’enseignement supérieur (Decree regulating the number of students in certain programmes in the first two years of undergraduate studies in higher education). 37 The opinion of AG Sharpston delivered on 25 June 2009 in Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, not yet reported, para 27. 5 justification, and provided many arguments why it felt that the ECJ should come to the conclusion that the legislation was indeed justifiable.’38 The reasons for justification pointed out by the national court included the fact that the education was mainly publicly funded; that limited human and material resources were closely connected to the educational facilities; that in some courses the huge amount of foreign students (78-86% of total students) undertaking health courses was a threat to the public health system; and that the French Community in Belgium had already tried a system with a general entry exam in the area of veterinary science (as suggested by the ECJ in Commission v Austria)39 which was detrimental to the French Community.40 AG Sharpston delivered her opinion on 25 June 2009, in which she firstly established that both cumulative conditions for entry set out in Belgian legislation 41 constitute discrimination. The requirement to show that a student’s principal residence is in Belgium was held to amount to an indirectly discriminatory measure42 and the fulfilment of one of eight further conditions listed therein amounted to direct discrimination.43 AG Sharpston stated that indirect discrimination is easier to justify than direct one. 44 However, according to the Advocate-General, the first condition could not be justified either on the excessive burden of public finances (as a purely economic argument, where increase/decrease of number of students is budget neutral),45 or on the possibility of jeopardising the quality of education in the French Community,46 or on the quality of public health system47 (which can be addressed at national level).48 As for the second, directly discriminative cumulative condition, AG Sharpston pointed out that it can only be justified by a derogation stated in the Treaty itself; as no such derogations from non-discrimination on the grounds of nationality exist, the second cumulative 38 S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 16. 39 Para 61. 40 In France the access to national veterinary courses was subject to two years of preparatory education after obtaining a secondary school diploma and high competition due to numerus clausus for physiotherapy courses. Therefore, French students had academic advantages against straight out-of-school Belgian students of the French Community in Belgium. Next to this, the size of the French Community was much smaller than that of France. See S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 17. See also the opinion of AG Sharpston delivered on 25 June 2009 in Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, not yet reported, paras 21-24. 41 Article 1 of the Decree: (i) he must show that his principal residence is in Belgium; (ii) he needs to fulfil one of eight further conditions listed there. See paras 37 and 12 of the opinion of AG Sharpston delivered on 25 June 2009 in Case C-73/08 Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française, not yet reported. 42 Para 63. 43 Para 67. 44 Para 78. 45 Paras 87-99. Paras 112-113; AG Sharpston suggested for Belgium to adopt the same capping as it is in place in France, which is in line with EU law; see paras 106-110. 46 47 Paras 114-126. 48 Paras 120-121. 6 condition of Article 1 of the Decree could not be justified, either.49 Therefore, the AG’s advice to the ECJ is that the Belgian legislation infringes EU law on non-discrimination and cannot be effectively justified in order to remain in force. It is quite likely that the outcome of this case could affect the Commission’s final view on the numerus clausus in Belgium and Austria. Two possible endings were proposed by Garben in Bressol & Chaverot. In the first scenario the ECJ could follow Advocate General’s opinion and declare that Belgian law is incompatible with the EC Treaty, suggesting less discriminating types of entry qualifications.50 Here the Court could even have a chance to ‘expound the meaning of the prohibition of harmonization as laid down in Article 149(1) EC.’51 The second scenario for the Court is to uphold that Belgian legislation is indirectly discriminatory; however, that this discrimination can be justified in the light of proportionality principle, which allows balancing the EU and Member States’ interests. This would be a step back in the light of current jurisprudence; nevertheless, having in mind the substantial arguments for justification of such a treatment and the fierce reactions of Austrian and Belgian governments to previous judgements, the ECJ is quite likely to take the second route, even though the opinion of AG Sharpston goes against Belgium. As Garben puts it, ‘the fact that the general rule is student mobility does not mean that certain exceptions should not be allowed. And in determining the scope of these exceptions, the ‘taxpayers argument52’ as well as the ‘free-rider argument’53 could serve as a background, allowing the Court to come to a more flexible approach to scrutinizing the justification of insufficient resources.’ 54 The outcome of Bressol & Chaverot is important not only for Belgium and Austria, but also for other Member States. Belgian and Austrian ‘wrestling’ with the Commission are closely watched by Denmark, which suffers a large medical student influx from Sweden (one third of students accepted in 2006 were Swedish, who find it easy to follow courses in Danish language)55 and seeks a solution in line with EU law. Therefore, it seems that the Bressol & Chaverot judgment can be the shaping factor of quite a few national education systems that are based on the right of free access to education at the moment. 49 Paras 128-131. 50 S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 19. 51 Ibid. 52 ‘Member States have the right to favour their nationals (to a certain extent) in educational matters, if only for the reason that they are residents of the country where the taxes are raised that finance higher education;’ S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 10. 53 ‘[S]tudents, fleeing numerus clausus, who would return to their Member State of origin to work after their studies, <...> would be able to reap the benefits from publicly funded education provided in Austria by moving abroad to study, while not contributing to its financing via national taxes nor ‘paying back’ by staying to exercise their professional life in the host State;’ S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 10. 54 S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 10. 55 H. Spongenberg, ‘Denmark Seeks EU Help on Swedish <http://euobserver.com/?aid=22184>, retrieved 20 August 2009. Student Influx’ (July 2006) EU Observer 7 It poses a danger that the free public education as it stands today may disappear from the European Union. These considerations aside, it is worth now asking a question what type of balancing exercise will be employed by the ECJ in this pending case? Even more importantly, what will the ECJ have to balance? In other words, are there tensions between free movement of persons and the social right to access free education, or are there other types of tensions involved in Bressol & Chaverot? Before attempting to answer these questions, let us have a look what tensions can be defined as ‘real’ tensions in this context. 3 THE RIGHT TO EDUCATION AND FREE MOVEMENT OF PERSONS: ARE THEY IN TENSION? 3.1 What ‘fundamental rights’? Before commencing to discuss different types of tensions, I would like to identify what kinds of ‘rights’ these tensions could potentially involve. The evolution of the EU from an economic to a political Union meant that economic freedoms, upon which it was based, gradually evolved into fundamental rights, at least in the language of the ECJ.56 In its case law the Court never made a clear distinction between economic freedoms and fundamental rights,57 even though it had plenty of chances to do so before EU Charter became a legally binding set of fundamental rights in the EU. As Morijn argues,58 the lack of Court’s initiative to do so may be explained by the fact that European trade lawyers (as opposed to human rights lawyers) are more inclined to treat economic freedoms as fundamental rights. Moreover, his argument goes, trade courts (and the ECJ started off as one of them) are usually more likely to address and give more importance to economic freedoms.59 J. H. Gerards, ‘Fundamental Rights and Other Interests: Should it really Make a Difference?’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 670. As an example Gerards considers the principle of equal pay for men and women, which originally was inserted for economic reasons, but later interpreted by the ECJ as a fundamental right, which has not only economic, but also a social purpose (see, e.g. cases 43/75 Defrenne [1976] ECR 455; C-50/96 Schröder [2000] ECR I-743;) 56 57 J. H. Gerards, ‘Fundamental Rights and Other Interests: Should it really Make a Difference?’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 684. 58 J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 593. 59 J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 613. 8 Therefore, there has been a rising scholarly debate60 on whether conflicts of fundamental rights and economic freedoms should be understood as conflicts of fundamental rights. If we hypothetically agree that economic freedoms belong to the category of fundamental rights, then will rules of balancing the two be similar to those adopted by human rights courts (ECtHR, for example)? In other words, it would be incorrect to discuss the balancing between fundamental rights and economic freedoms without first identifying what types of rights are involved. The position seems to be that economic freedoms are not of the same nature as fundamental human rights (including social rights). Economic freedoms are not universal (only valid within the EU) and do not belong to any human being (European citizenship is necessary as a prerequisite to entitlement to free movement rights). As I will show below, the types of competences given for the EU in regards to economic freedoms and in regards to protecting equal right to education are not the same; which suggests that these two categories are distinct. Zucca suggests that ‘fundamental rights, as a family, have qualified priority over any other types of interests.’61 Lohse supports this position by stating that the protection of human rights finds ‘justification in human dignity and the high value of humanity as such.’ 62 Therefore, she claims, the individual economic freedoms are a spill-over of Member States’ obligations to each other. For this reason, Kombos calls such fundamental rights that result from the protection of economic freedoms as incidental.63 However, even though there seems to be an agreement on the different nature of fundamental rights, there are attempts to reconcile them, especially when it comes to adjudicating between the two. To this end, Gerards proposes 64 that the difference between fundamental rights and economic freedoms at times is superficial, especially when there is a presumption to give higher importance either to a certain economic freedoms, or a fundamental right. Instead, she suggests a new way of looking at the two, which resonates with Morijn’s proposal for the ECJ not to address conflicts between fundamental rights and economic freedoms, until ‘a clear common fundamental rights vocabulary has 60 See, for example, J. Krzemi ska-Vamvaka, ‘Free Speech Meets Free Movement – How Fundamental Really is ‘Fundamental’? The Impact of Fundamental Rights on Internal Market Law’ (2005) ZERP Discussion Paper 03/2005; M. Avbelj, ‘European Court of Justice and the Question of Value Choices. Fundamental human rights as an exception to the freedom of movement of goods’ (2004) Jean Monnet Working Paper 06/04 <http://centers.law.nyu.edu/jeanmonnet/papers/04/040601.pdf > retrieved 2 April 2010. L. Zucca, ‘Conflicts of Fundamental Rights as Constitutional Dilemmas’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 37. 61 E. J. Lohse, ‘Fundamental Freedoms and Private Actors - Towards an ‘Indirect Horizontal Effect’ (2007) 13(1) European Public Law, p. 173-174. 62 63 C. Kombos, ‘Fundamental Rights and Fundamental Freedoms: a Symbiosis on the Basis of Subsidiarity’ (2006) 12(3) European Public Law, p. 435. 64 J. H. Gerards, ‘Fundamental Rights and Other Interests: Should it really Make a Difference?’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 686. 9 been articulated.’65 Morijn argues that fundamental rights protection must go hand-in-hand with the protection of economic freedoms of the ‘individuals pursuing economic activity.’66 To conclude, there is no one voice in academic writing and in the Court’s practice whether economic freedoms can be considered as part of the fundamental rights. In the next paragraph, I will suggest that it may be more useful to consider tensions between free movement of persons and right of equal access to free education as ‘norm v norm’ instead of ‘right v right’ debate. 3.2 How should we understand ‘real’ tensions in the context of EU law? ‘Real’ tensions can be understood when two norms of the same value conflict. The EU Charter (which protects social rights, as well as the right to free movement of persons) is now legally binding and has the same legal value as the Treaties,67 which allows us to presume that the right of equal access to education and the right to free movement of persons are two norms of the same legal value (in hierarchical terms). The Preamble of the EU Charter states (emphasis added): Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, services, goods and capital, and the freedom of establishment. Art 14(1) EU Charter states that ‘[e]veryone has the right to education and to have access to vocational and continuing training’ (emphasis added). According to the Explanations relating to the Charter of Fundamental Rights,68 Art 14 is based on the common constitutional traditions of Member States and on Article 2 of the Protocol to the ECHR. It also extends to access to vocational and J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 614. 65 J. Morijn, ‘Conflicts between Fundamental Rights or Conflicting Fundamental rights Vocabularies? An Analysis of Diverging Uses of ‘Fundamental Rights’ in the Context of International and European Trade law’ in E. Brems (ed), Conflicts Between Fundamental Rights (Intersentia, Oxford 2008), p. 615. 66 67 Article 6(1) TEU. 68 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/02. 10 continuing training, which is based on point 15 of the Community Charter of the Fundamental Social Rights of Workers and Article 10 of the Social Charter. Title V of the Charter entitled ‘Citizens' Rights‘ contains Art 45, which guarantees every EU citizen’s right to move and reside freely within the territory of the Member States; the same Article states that this right for nationals of third countries legally resident in the territory of a Member State will be granted ‘in accordance with the Treaties’. In this way, the EU Charter codifies the right to free movement of persons as a political right,69 which places it on equal footing in the Charter with the social right to education. Therefore, we could draw a conclusion that right of equal access to free education and the right to free movement of persons are two norms of the same legal value. Both norms (Art 14 and Art 45 of the Charter) are of the same legal ranking (the Charter has constitutional status together with TEU and TFEU) and both aim to protect a certain individual interest in the context of European law. Both these interests are economic. Therefore, it may be more correct to frame the question of tensions between fundamental rights and economic freedoms as ‘norm v norm’ debate, instead of a ‘right v right’ debate. The next task would be assessing whether there will always be ‘real’ tensions between these two norms in general, and in Bressol & Chaverot in particular. One could distinguish between types of scenarios when it comes to exercising the right of equal access to education and where the economic freedoms of free movement may be engaged. The first one is where education concerns free movement of persons. In most of the cases dealt with by the ECJ the right of access to education involves education as a public service: funded by Member States from public funds (even though part of the tuition fees may be paid by the student), when the purpose of education is to fulfil social, cultural and educational goals of the society instead of seeking profit. In this first scenario (education as a public service) the right to equal access to education would be supported and enforced by free movement of persons, as well as non-discrimination on the grounds of nationality. Therefore, there most likely will be no ‘real’ tensions between social right to equal access to education and free movement of persons. The second scenario involves those few cases, 70 where equal access to education can be understood in the light of free movement of services or establishment. In other words, if education was provided by a private equity seeking profit and not funded from public funds, a person who intends to pursue this type of education will be considered a recipient of a service that would usually be provided 69 It is outlined in the Chapter called ‘Citizens' Rights’, which allows us to make an assumption that the right to free movement of persons could be understood as a political right. 70 See the strand of cases where the ECJ considered whether education can be classed as a “service” within the meaning of Art 56 TFEU (ex Art 49 EC): Case 263/86 Humbel & Edel [1988] ECR 5365; Case C-109/92 Wirth [1993] ECR I-6447; Case C-153/02 Neri [2003] ECR I-13555. 11 under an agreement between a service provider (e.g. educational institute) and the recipient (e.g. student). If we consider the type of education providers discussed in Neri,71 in the UK there are more than 413 of such private colleges72 that are usually registered as private limited companies and provide tuition only for the courses of the Universities that have degree awarding powers (University of London External System, University of Trent, University of Wales are some of the most common degree awarding bodies). Therefore, education in the second scenario (education as a private service) is understood as a “service” within the meaning of Art 56 TFEU (ex Art 49 EC). The social right to equal access to education here will be supported by free movement of services and the two will not be in ‘real’ tension. Applying the above to Bressol & Chaverot it is clear that there are no ‘real’ tensions between the right of equal access to education and free movement of persons in this case. On the contrary, it seems that the ‘right’ to free movement of persons exercised by the applicants (i.e. EU nationals students) enables them to claim the right of equal access to education in Belgium. The question then arises: why is Bressol & Chaverot such a controversial case? Why are Member States waiting for the ECJ’s ruling with anxiousness and (maybe) fear? In the next paragraph I will argue that the reasons for such a reaction may be the existence of different (‘other’) types of tensions. In particular, we have in mind the eternal debate and struggle for competences between Member States and the European Union. 3.3 Other types of tensions As mentioned earlier, the Treaty competence to the EU to act in the area of education has been granted by the Treaty of Maastricht. Therefore, such a competence has been granted for the EC only less than twenty years ago. Maastricht also introduced the citizenship provisions, which gave a plethora of case law from the ECJ promoting the right to free and equal access to education for EU citizens.73 According to Art 6 TEU (Lisbon), the Union’s competence in regards to education is supportive of the Member States’ action in this area. This means that the Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in regards to education. The EU can create legally binding acts in this area but they ‘shall not entail harmonisation of member States’ laws or regulations’ so the carteblanche empowerment of the EU to create superior law that permanently pre-empts national law which exists in areas of shared competence does not exist here. The Lisbon Treaty gives the EU the role of 71 C-153/02 Neri [2003] ECR I-13555. 72 According to British Accreditation Council data based on the number of fully accredited institutions <http://www.thebac.org/colleges/directory/ukdirectc.pl >, retrieved 2 April 2010. 73 For history and evolution of the EU’s right to education see G. Gori, Towards an EU Right to Education (Kluwer Law International, Hague 2001). 12 supporting competence in several new fields including health, education, tourism, energy and sport. In the areas of supporting competence, such as education, the EU has the power to ‘contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.’74 This implies that there may be no harmonisation of the laws and regulations of the Member States in the areas of supporting competence; the Union is only allowed to contribute by adopt incentive measures (Art 165(4) TFEU). Therefore, most of social rights and economic freedoms75 will not fall within the exclusive competence of the EU. It is interesting to note that in order to protect social rights the Union has two types of competence to act (shared76 and supportive)77, whereas for the protection of economic freedoms the EU can exercise one type of competence (shared). This can be summarised by the scheme below: EU Competence Exclusive Shared: Supporting: Internal market (freedoms); Social security; Work Health; Education Therefore, one may argue that the competence given for the EU in regards to economic freedoms and in regards to protecting equal right to education is not the same. This is another reason why fundamental economic freedoms cannot be regarded at the same level and importance as fundamental rights. Bressol & Chaverot is an example of the competence struggle between Member States and the EU, when the EU tries to regulate social rights (i.e. the right to equal and free education). Should the ECJ uphold its decisions against Belgium and Austria, or should it consider a possibility for Member States to justify the numerous clauses conditions that restrict equal access to free education? Will this be another case in line with citizenship case law, upon which LTR TCNs’ right could be built, or will this be a step back? 74 Art 165(1) TFEU. The Union has a shared competence in matters related to internal market, which is based on the economic freedoms of movement. 75 76 Art 4 TFEU. 77 Art 6 TFEU. 13 4 RIGHT TO EDUCATION AND TCNs: WHY EXCLUDE? In Bressol & Chaverot there was no question about right holders involved; therefore, there was no mention of the possibility or conditions upon which LTR TCNs’ right to education could be exercised should a similar problem arise. However, I would like to complicate the discussion in attempting to examine a possibility of a similar scenario where LTR TCNs’ right to education could be at stake. This also due to the fact that after Commission v Austria judgement Austria left only 5% free of charge places in Austrian medical schools for TCNs (see above), which may be regarded as hindering LTR TCNs’ equal right to education. For this purpose, it is first relevant to outline the importance of LTR TCNs in the EU. Further, I will then consider whether these right holders could be treated in the same way as EU citizens in Bressol & Chaverot scenario (i.e. when they move in order to access free education). It is surprising that not many people know how greatly TCNs impact European societies and economies. Vink provides some impressive numbers from 2003 (based on EU-15).78 According to this data, Union citizens resident in a Member State other than their country of origin amounted to 6 million, whereas there were 13 million third country nationals (3.4% of the total EU population). According to him, at the time in Germany alone there were almost three times more third country nationals (6.7%) than Union citizens (2.3%). Next to demographic data, the EU has economic problems that TCNs help solve. Legally resident and employed TCNs help to ease labour shortages, supply skilled labour,79 and provide a counterbalance for the ageing of the EU population. LTR TCNs directly contribute to the EU and Member States’ economies not only as tax payers, but also as consumers of goods and services, as well as entrepreneurs. Ironically, more vulnerable80 TCNs (as compared to the EU citizens) are still awarded less protection in terms of social rights, despite great contributions81 and long-term commitment to the Single Market. 78 M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB 4, p. 9. 79 European Blue Card scheme is the outcome of the aim to attract the highly-skilled workers (especially engineers and health care workers), which is so important that it is considered as a distinct policy of the EU in order to realise the objectives of the Lisbon strategy: see I. Awad, ‘Labour Migration to the European Union: Reconciling Objectives of Employment, Migration and Development Policies’ (Presentation at Conference on Strengthening EU Competitiveness - Potential of Migrants in the Labour Market, Prague, 26-27 February 2009), p. 2. <http://www.mpsv.cz/files/clanky/6359/Ibrahim_Awad.pdf>, retrieved 1 April 2009. Especially women, who are a majority of the immigrant population in the EU; see Commission (EC), ‘Third Annual Report on Migration and Integration’ (Communication) COM (2007) 512 final 11 September 2007, p. 6. Next to this, employment rates for non-EU national women are much lower than for non-EU national men; see F. Ramb, ‘LFS ad hoc Module on Migrants and the Labour Market’ (Paper presented at 33rd CEIES Seminar Ethnic and Racial Discrimination on the Labour Market: Measurement, statistics and indicators, Valletta, Malta, 7-8 June 2007) <http://epp.eurostat.ec.europa.eu/pls/portal/docs/PAGE/PGP_DS_CONFERENCES/PGE_CONFERENCES/PGE _33CEIES/TAB73294116/2.3%20RAMB%20EN.PDF>, retrieved 21 February 2009, p. 3. 80 In January 2006, the third-country nationals residing in the EU-27 were about 18.5 million, i.e.3.8% of the total population of almost 493 million; Press release IP/07/1314, ‘Strengthening and Monitoring Measures for Integration Policies in the EU: the Commission Adopts the Third Annual Report on Migration and Integration’ RAPID (12 September 81 14 Therefore, it came as no surprise when in 1999 the European Council adopted the Tampere Programme, which concentrated precisely on fair treatment of TCNs, legally residing within Member States, by providing for an effective integration policy, which ‘should aim at granting them rights and obligations comparable to those of EU citizens’.82 According to the Programme, legal status of TCNs should be ‘approximated to that of Member States' nationals’,83 but not made the same. This political initiative was followed by long-term residents Directive,84 family reunification Directive,85 and, most recently, EU Blue Card Directive.86 However, despite these measures, the protection of LTR TCNs’ social rights remains unequal with that of the EU citizens. Even more, EU law has created different categories of TCNs that enjoy different legal status. These, as well as equality provisions, are discussed below in order to outline the existing problem of protection of TCNs’ social rights (and the right to education) under EU law. 4.1 TCNs as European citizens? It is true that Bressol & Chaverot did not deal with the right of equal access to free education of TCNs: it was the EU citizens who filed the claim. However, with the growing percentage of population of LTR TCNs in the EU (despite of many acquiring national citizenships), the likelihood for TCNs to enforce their social rights (even if they are not always in tension with fundamental freedoms) becomes apparent. To this end, we should mention the growing call for the supra-national EU citizenship to be used for granting LTR TCNs equal social rights with the EU citizens (some speak of inclusive,87 others of residence based88 EU citizenship). The argument goes that it is no longer about exclusive social benefits for the EU citizens: the legal initiatives and political will of the EU institutions proves the need to protect LTR TCNs as a vulnerable part of the European society. By excluding LTR TCNs from EU citizenship (and hence forming a separate “denizenship” instead), EU law tends to reinforce the idea 2007) <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1314&format=HTML&age>, February 2009. retrieved 82 Para 18. 83 Para 21. 84 Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003] OJ L16/44. 85 Directive 2003/86 on the right to family reunification [2003] OJ L251/12. 22 86 Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L155/17. The Directive is to be implemented by Member states by by 19 June 2011. 87 See e.g. A. Beasley, ‘Caught Between History and Imagination: The Arguments for Post-National European Union Citizenship’ (PhD Thesis, University of Pittsburgh 2007), <http://etd.library.pitt.edu/ETD/available/etd-04202007180919/unrestricted/Beasley2007.pdf>, retrieved 6 May 2008. 88 K. Rostek, G. Davies, ‘The impact of Union citizenship on national citizenship policies’ (2006) 10 EIoP <http://eiop.or.at/eiop/index.php/eiop/article/view/2006_005a>, retrieved 9 May 2008, p 32. 15 that unequal treatment of EU citizens and LTR TCNs is justified. 89 Therefore, a closer political integration in the area of the European citizenship would help to guarantee social rights to LTR TCNs and to enhance free movement within the Single Market. This argument is further strengthened by the fact that the active role of Member States in immigration policies has led to the development of a sectoral approach to statuses of rights, which is not acceptable:90 today there is one Directive for the free movement of EU citizens91 and another one – for the free movement of long-term resident TCNs.92 The question then arises whether the protection of the right to education is guaranteed to LTR TCNs in the same way as for EU citizens under secondary legislation? As for EU citizens, Recital 20 of the Preamble to Directive 2004/28 guarantees ‘equal treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law’ (emphasis added). The areas where this equality is guaranteed include equal treatment when exercising the right of equal access to free education (e.g. Bressol & Chaverot scenario), as it is guaranteed under EU law. As far as TNCs are concerned, equal treatment with nationals under EU law is only available to those TCNs who are family members of EU citizens and ‘have the right of residence or permanent residence.’93 As for other categories of TCNs, Article 11(1)(b) of Directive 2003/109 provides that LTR TCNs shall ‘enjoy equal treatment with nationals as regards education and vocational training, including study grants in accordance with national law’ (emphasis added). In other words, the importance of Member States’ national laws is much higher when it comes to regulating LTR TCNs’ rights to education, as compared to EU citizens’ rights. Another difference in protection can be read from Recital 14 of the Preamble to Directive 2003/109, which calls for ‘access for [TNCs] minors to the educational system under conditions similar to those laid down for their nationals’ (emphasis added). From this it follows that the language of the Directive is confusing: one is left to wonder whether ‘equal’ status means the same as ‘similar’ status when it comes to protecting LTR TCNs’ right to 89 H. Oger, ‘Stratified EU denizenship revolving around EU Citizenship: Bridging or restructuring the gap?’ (Paper for WP39: Midterm Conference: European Citizenship – Challenges and Possibilities, Roskilde, Denmark, 3-6 June 2007) <http://cinefogo.cuni.cz/getfile.php?&id_file=166>, retrieved 5 May 2008, p. 5. 90 H. Oger, ‘Stratified EU denizenship revolving around EU Citizenship: Bridging or restructuring the gap?’ (Paper for WP39: Midterm Conference: European Citizenship – Challenges and Possibilities, Roskilde, Denmark, 3-6 June 2007) <http://cinefogo.cuni.cz/getfile.php?&id_file=166>, retrieved 5 May 2008, p. 2. 91 Directive (EC) 2004/58 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L229/35. 92 Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003] OJ L016/44. 93 Art 24(1) of Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2003] OJ L16/44. 16 education? Therefore, we see that there are at least two differences from EU citizen status and the right to education that are not applied for LTR TCNs: firstly, the different source of law under which the right to education is protected (EU law provisions for EU citizens; EU and national law provisions for LTR TCNs); secondly, the long-term resident TCNs Directive falls short of guaranteeing equal treatment of LTR TCNs in regards to right to education and only provides for a ‘similar’ treatment with EU citizens. To conclude, if the calls for inclusive EU citizenship may succeed, they will most certainly face difficulties when it comes to guaranteeing equal social rights for EU citizens and LTR TCNs. In other words, in order to be able to award a “free standing” EU citizenship to LTR TCNs, the EU and Member States first have to guarantee that social rights, which are inherent in social citizenship, are enforced and guaranteed in the same manner for both categories of rights holders. In my view, this would be quite difficult to achieve, but possible if concentrating of introducing equal treatment through equality provisions in the secondary law and EU treaties. Therefore, I would argue for a gradual bottom-up approach through equal treatment in order to achieve an inclusive European citizenship and to guarantee the right to education for both EU citizens and LTR TCNs. Some of its aspects will be discussed in the following paragraph. 4.2 Non-discrimination: different regimes for different categories of TCNs Vink outlines three main categories of TCNs that enjoy different legal protection of social rights under non-discrimination on the ground of nationality clauses. First, those who are family members of EU citizens: they ‘enjoy a full right to equal treatment’ when it comes to social right to education.94 Second, citizens of member countries to the Agreement on the European Economic Area (EEA) enjoy a very similar protection to that of EU citizens, as the Agreement ‘copies the provisions effective under the EC Treaty’ on non-discrimination on the grounds o nationality.95 Third, nationals from accession states (Turkey, Croatia, Former Yugoslav Republic of Macedonia) and Maghreb countries (Morocco, Tunisia and Algeria) derive free movement rights from ‘a myriad of provisions based on the wording in different Agreements ... and especially on the rulings by the ECJ in individual cases’96 on specific implementation measures, and especially on the rulings by the ECJ in individual cases. M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB 4, p. 10. 94 95 M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB 4, p. 10. 96 Stabilisation and Association Agreement between the European Communities and Their Member States and the Republic Of Croatia [2005] OJ L26/3. 17 TCNs’ entitlements to equal treatment depend on the ground of equality in question. As for non-discrimination on the grounds on nationality, Vink correctly provides:97 Yet it is clear that none of the Association Agreements gives individuals a right to equal treatment equivalent to the categorical prohibition of discrimination on grounds of nationality for Union citizens under Article 12 TEC.98 The most far-reaching regime applies to Turkish workers under Article 12 of the Turkey Association Agreement, which binds the contracting parties to 'the purpose of progressively securing freedom of movement for workers between them.' The equal treatment of Turkish workers and their family members is, however, only secured in as far as they are already integrated into the labour force of their host member state. Therefore, as law stands today the right not to be discriminated against on the ground of nationality can only be claimed by EU citizens and in very limited cases by TCNs: those Turkish nationals, who are integrated into labour force of their Member State of residence. Are there any other grounds of non-discrimination that LTR TCNs could rely on? Unfortunately, next to the Art 14 of the EU Charter99 and the loose formulation of equal treatment under long-term residents,100 LTR TCNs cannot rely on the Employment Equality Directive101 or the Racial Equality Directive.102 Articles 3(2) of both Directives contain a formulation, which specifically excludes them from the scope of the legislation (emphasis added): This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals ... on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals... Overall, the equality enforcement for LTR TCNs does not look too promising: their legal status remains dependent on which category of TCNs they belong (EU citizens’ family members EEA nationals or nationals of accession states or Maghreb countries). This secondary legislation does not enable them to file a claim neither against a public or private education provider; LTR TCNs’ social rights are not guaranteed by the Treaties, either. The only hope at present seems to be Art 14 of the EU 97 M. P. Vink, ‘Limits of European Citizenship: European Integration and Domestic Immigration Policies’ (2003) ConWEB 4, p. 10. 98 Now Article 18 TFEU. 99 Which guarantees right to education for ‘everyone’; see above. 100 Recital 5 of the Preamble of Directive 2003/109 provides: Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation. 101 Directive 2000/78 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 102 Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 18 Charter, which only recently became legally binding due to entry of the Treaty of Lisbon on 1 December 2009. 5 CONCLUSION Looking at Bressol & Chaverot we could identify balancing at two dimensions. The first dimension is the tension between social rights and economic freedoms. The problems faced here are twofold: first, whether free movement of persons could be understood as a fundamental right of the same value as the right to equal access to free education. It is concluded that because both - the right to equal access to free education and free movement of persons – are embedded in the EU Charter (which is a constitutional document). Second, whether both may come to be in ‘real’ tensions depends if they clash or contradict with each other. Therefore, ‘real’ tensions in most cases are rare and are also absent in Bressol & Chaverot. The second dimension is rotted in the eternal debate of EU competence versus (economic integration) v Member States competence. In other words, when it comes to securing social rights (the right to equal access to free education being one of them), this touches on demarcation of shared and supporting competences which presume co-action of Member States and the EU in the field of education. Therefore, even though there are not ‘real’ tensions in Bressol & Chaverot, the case is a great example of the power struggle between the EU and Member Sates when it comes to protecting social right to equal access to education. The outcome of the case will be relevant not only for Austria and Belgium, who have already faced the problem, but also for Denmark, which suffers a large medical student influx from Sweden. To this end, one cannot help noticing that in cases like Bressol & Chaverot the role of the ECJ becomes of crucial importance. It is not the first time since Van Gend en Loos that the Court delivers unexpected judgements, but ‘[i]t is the ECJ who carries the difficult task to referee in the power struggle between the Community and its Member States.’103 As AG Sharpston puts it: 104 It is ... inevitable that the Court will continue to have to deal with cases which are ever further removed from its original area of expertise as the court of an economic community. ... The root fact is that “political compromise breads ambiguity”, and it is this ambiguity which creates the raw material which must eventually be ruled upon by the ECJ.... In cases where the legislator has not made a choice (possibly due to the need for compromise) then the ECJ is obliged to adjudicate. 103 S. Garben, ‘The Belgian/Austrian Education Saga’ (2008) (Harvard European Law Working Paper No. 01/2008), para 5. The European Circuit of England & Wales, Summary of Keynote Speech by AG E. Sharpston, ‘A year is a Long Time at the ECJ’, delivered at the European Circuit Annual Conference European & International Practice – Contrasts & Comparisons from Regional Bars (Brussels, 16-18 October), paras 4-6 <http://www.europeancircuit.com/files/54/Summary%20of%20Keynote%20Speech%20%20Eleanor%20Sharpston,%20QC%20Advocate%20General%20of%20the%20ECJ.pdf>, retrieved on 8 September 2009. 104 19 Finally, speaking of the possibilities for LTR TCNs to claim social right to equal access to education, the present and near future does not seem bright for these right holders. The reality where LTR TCNs are unable to challenge infringements of the social right to equal access to education (when relying on equal treatment provisions) leads us to the conclusion: despite the fact that numerous clausus imposed by Member States may have an impact on TCNs’ equal right to free education, TCNs will not be able to file a claim in the same way as EU citizens have done in Bressol & Chaverot. This leaves the enforcement of the right to education only in the hands of the Member States, the EU (most likely the Commission) and European citizens. In no way we could call such a protection of fundamental rights effective. Therefore, one can only hope that the EU/Member States’ power balance which will be judged by the ECJ in Bressol & Chaverot will enable the EU to protect not only citizens’, but also TCNs’ equal right to free education in the most effective manner. This may be even easier to achieve in the cases, where there is no need to consider any tensions between social rights and economic freedoms. 20
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