would charging continental students higher tuition than british students at british institutions of...

8/13/2019 Would Charging Continental Students Higher Tuition than British Students at British Institutions of Higher Education

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Law548CEuropean Union LawHolden Agnew-Pople

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Would Charging Continental Students H igher Tui tion than Br iti sh Students at Bri tish

I nstituti ons of H igher Education Be a Violation of European Union Law?

INTRODUCTION

It has long been assumed that European Union law precludes institutions of higher

education within its jurisdiction from discriminating between national students and foreign

European Union (EU) studentsregarding tuition.1Consequently, students who are citizens of

the EU are currently able to study at any institution of higher education within the EU without

having to pay the high international student fees that non-EU citizens studying in the EU have to

pay.2As Davies notes, positive corollaries of the aforementioned fact are that (i) study abroad is

both a possible and an attractive option for many EU students and (ii) institutions of higher

education within the EU are a lot more diverse than they were in the past.3As Davies also noted,

however, the supposed inability of EU institutions of higher education to charge foreign EU

nationals higher tuition has at least one very significant consequence: the cost of attending an

institution of higher education in the EU for EU students is highly subsidized by Member State

governments, respectively, so, should enough nationals from other Member States decide to

study in a particular Member State, that latters education budget will quickly become

inadequate, leading to higher tuition for everybody.4

The United Kingdom is particularly affected by the aforementioned supposed inability to

charge foreign EU nationals higher tuition than home students.5This is because British

institutions of higher education attract a prodigious amount of students from other Member

States each year. During the 2011/12 academic year, for example, 132,550 students from other

1Gareth Davies,Higher Education, Equal Access, and Residence Conditions: Does EU Law Allow Member States

to Charge Higher Fees to Students Not Previously Resident?, 12MAASTRICHT J.EUR.&COMP.L.227,227(2005).2Id.

3Id.

4Id.at 278.

5Home students are students who are citizens of the country in which they attend university.


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ending the subsidization of foreign EU nationals educations at British institutions of higher

education.

Upon close examination of the issue, it becomes clear that, despite the strong contrary

belief, British institutions of higher education may be able to generally deny tuition subsidies to

foreign EU nationals higher without violating EU law. I shall explain why in this essay.

I. BACKGROUND

During the middle of the twentieth century, Europe began the process of federalization.14

To facilitate this process, supranational European governmental institutions developed the

concept of the four freedoms: capital, goods, services and people.15

The last of the four

freedoms listed in the previous sentence, the free movement of people through the EU, was

created to allow Europeans to capitalize on the opportunities provided by the other freedoms.16

To effectuate the free movement of people within the EU, EU citizenship and laws and

regulations curtailing national immigration laws, as applied to European Union citizens, were put

into effect.17

Consequently, the countries that make up the European Union (Member States)

are very limited in their ability to control the ingress and settlement of EU citizens within their

territories.18

Additionally, Member States are very limited in their ability to deny EU citizens

the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member StatesAmending 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 O.J. (L 158) 77.14Finn Laursen,Federalism: From Classical Theory to Modern Day Practice in the EU and Other Polities, inThe

EU and Federalism: Polities and Policies Compared 3, 3-24 (2011).15Michael Johns,A Problem by Their Own Hands: Intra-EU Migration and Its Implications for Europe, in The EU

and Federalism: Polities and Policies Compared 245, 245 (2011).16Id.

17Id.

18Id.at 249.


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who have availed themselves of their mobility rights access to the benefits that their own citizens

receive, such as social security payments.19

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004

(Directive 2004/38/EC) is the mechanism used by the European Union to ensure that Member

States facilitate the EUsgoal of the free movement of people within the Union. Article 7(1)(c)

of the Directive makes it clear that Member States are precluded from denying the right of

residence to an EU citizen from another Member State who is enrolled at an institution of higher

education within its borders and is able to demonstrate that he has both adequate health insurance

there and sufficient pecuniary resources to avoid burdening the social assistance system.20Unlike

the case of foreign students studying in the United States, then, a student from, say, Italy, a

Member State of the EU, is not required to obtain a visa from the British government prior to

commencing his studies at a university in the United Kingdom, another Member State of the EU.

An even greater dichotomy between foreign university students situationin the United States

and foreign EU university students situation in another Member State is the fact thatin virtually

all situations the latter group receives the same benefits as university students who are citizens of

the host Member State21

receive. Pursuant to Article 24 of Directive 2004/38/EC, [A]ll Union

citizens residing on the basis of this Directive in the territory of the host Member State shall

enjoy equal treatment with the nationals of that Member State within the scope of the Treaty.22

19

Id.at 250.20Directive 2004/38/EC of the European Parliament and of the Council 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, art. 7, 2004 O.J. (L 158) 77, 93.21Host Member State means a Member State to which a Union citizen moves in order to exercise his/her right of

free movement and residence.Id.at art. 2(3), 88.22Id.at art. 24(1), 112. It is important to note that the application of Article 24(1) is restricted by Article 24(2),

which states that the host Member State shall not be obliged to confer entitlement to social assistance during the

first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it


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II. ANALYSIS

Part A: Would Article 24 of Directive 2004/38/EC Be Infringed If British Institutions of Higher

Education Based Tuition on How Long One Has Lived in the United Kingdom?

If one were to have analyzed whether it is permissible for British institutions of higher

education to base tuition on how long one has lived in the United Kingdom prior to the middle of

the last decade, it is virtually certain that he would have reached a negative conclusion. This is

because the leading case on the issue prior to that time was Gravier,27

and this case lends plenty

of support to the argument that it would be impermissible for British institutions of higher

education to base tuition on the length of ones residence in the country.

In Gravier, Francoise Gravier, a French student at the Academie Royale des Beaux-Arts,

a higher education art school in Liege, Belgium, was required to pay an enrollment fee that only

foreign students whose parents are not resident in Belgium were required to pay to attend a

higher educational institution run or supported by the state.28

He challenged the statute, arguing

that it restricts his freedom of movement provided for under EU law, and this litigation

ultimately ended up before the European Court of Justice.29

The Court was faced with two

issues: (i) whether EU laws ambit encompasses the situation of EU citizens who enter the

territory of another Member State for the sole purpose of taking part in vocational training and, if

so, (ii) whether the aforementioned enrollment fee violates EU law.30

Regarding the first issue, the Court held that access to vocational training is within the

ambit of EU law.31The Court reached this holding after finding that (i) EU institutions have

27Case 293/83, Gravier v. City of Liege, 1985 E.C.R. 606.

28Id.at 607-08.

29Id.at 607, 609.

30Id.at 609.

31Id.at 612.


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given a great deal of attention to the problems of access to vocational training and its

improvement within the EU and (ii) access to vocational training in other Member States is

likely to promote free movement of people within the EU by enabling them to get a qualification

in the Member State in which they intend to work and enabling them to develop their talents in

the Member States that have good programs in their desired areas of study.32

In other words, the

right to receive vocational training anywhere within the EU, according to the Court, is a

corollary of the principle of the free movement of people. Regarding the second issue, the Court

was not receptive to the Belgian governmentsargument that charging foreign EU nationals

higher tuition than Belgian nationals was justified on the ground that foreign nationals do not pay

income tax in Belgium, reasoning that the cost of higher art education is not borne by students of

Belgian nationality.33

This led the Court to conclude that the higher tuition charged to foreign EU

nationals was based on their nationality.34

These findings lead the Court to ultimately hold that

the enrollment fee at issue violated EU law because it constituted discrimination on the grounds

of nationality,35

an action antithetical to EU law.36

Graviers holding is now applied to all higher education, not just vocational training.

This was made clear by the European Court of Justice inDHoop, where it held that the freedom

of movement encompasses the right to pursue higher education in general, not just vocational

training.37

In addition to Gravierexplicitly holding that EU universities may not charge EU

nationals who are foreign higher tuition than nationals of the host Member State on the basis of

32Id.at 612-13.

33Id.at 610-11.

34Id.at 611.

35Id.at 613.

36See supra Part I.

37Case C-224/98,DHoop v. Office nationale de lemploi , 2002 E.C.R. I-6191, paras 29-34.


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their nationality alone, the opinion can be read to implicitly hold that any attempt by an EU

institution of higher education to distinguish foreign EU nationals from nationals from the host

Member State regarding tuition will constitute discrimination and, therefore, violate EU law. If

the lack of foreign nationals paying income tax was not a good enough argument to prevent the

Court from holding that they were being discriminated against on the basis of nationality, what

would be? After all, being a taxpayer is what has traditionally been viewed, and still is in many

countries, as entitling one and ones family to receive benefits from the state which others do not

receive.38

In the 2000s, the cases Collins,Bidar, andForsterprovided an answer to this question.

At issue in Collinswas one of the conditions that the British government requires for an

individual to be eligible to receivejobseekers allowance, a social benefit provided to

unemployed British residents who are out of work but actively seeking it.39

The condition at

issue is that a single claimant must be habitually resident in the United Kingdom,the Channel

Islands, the Isle of Man, or the Republic of Ireland to receivejobseekers allowance.40

The challenge to the aforementioned condition on the reception ofjobseekers allowance

was brought by Mr. Collins.41

Mr. Collins was a dual citizen of the United States and Ireland.42

He arrived the United Kingdom on 31 May 1998 for the purpose of residing and finding work

there.43

Having been unable to find work and having lacked pecuniary resources, he claimed

38

While I realize that indigent people and their dependents in many states receive benefits from their respectivestates even though they do not pay taxes, it is presumed that they will one day have the pecuniary resources to pay

taxes, thus entitling them to the benefits that they receive. For instance, the reception of welfare by indigents is

viewed by their respective governments as temporary grants to be given to the former until they are able to

overcome their financial difficulties and become productive citizens once again.39Collins,supranote 23, at para 20.

40Id.at paras 16-17.

41Id.at para 20.

42Id.at para 18.

43Id.at para 19.


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jobseekers allowance on 8 June 1998.44

The competent authorities refused to grant him

jobseekers allowance, having claimed that he was not habitually resident in the United

Kingdom.45

Consequently, he filed suit, having claimed that EU law precludes a Member State

from implementing a scheme that prevents a foreign EU national from receiving a

noncontributory social benefit46

that nationals of the host Member State receive unless the

former has lived within the host Member State for a set period of time.47

Such a scheme, he

argued, constitutes discrimination based on nationality.48

The issue, then, that the European

Court of Justice was required to answer was whether the principle of equal treatment, laid out in

Article 24 of Directive 2004/38/EC, prohibits national legislation which makes entitlement to a

jobseekers allowance conditional on a residence requirement.

The Court held that conditioning a noncontributory social benefit to foreign EU nationals

on the satisfaction of a residency requirement can be justified as long as i) it is based on

objective considerations other than nationality and ii) it is proportionate to a legitimate aim.49

The Court found that a residency requirement is able to meet both these criteria in this context.50

First, this is because a residency requirement in this context is not based on nationality. Rather, it

is used to ensure that there is a genuine link between an applicant for jobseekers allowance

and the local employment market.51

Second, so long as a residency requirement is not longer

than necessary for a host Member State to ensure that there is a genuine link between an

44Id.

45Id.

46A noncontributory social benefit is a benefit that is not conditioned on contributions to it. It is the opposite of a

contributory social benefit, for which reception is conditioned on contributions to it. Examples of a contributory

social benefit include pensions and social security payments.47Id.at para 45.

48Id.

49Id.at para 66.

50Id.at para 73.

51Id.at para 67.


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applicant for jobseekers allowance and the local employment market, it would not run afoul of

the proportionality requirement.52

The Court added, however, that if a host Member State does

condition the reception of a noncontributory social benefit on the satisfaction of a residency

requirement, the residency requirement must be based on clear criteria made known to foreign

EU nationals and allow for a means of redress of a judicial nature.53

Bidaris a similar case to Collins, but it is more pertinent to the issue with which this

essay deals. Like Collins, at issue was a noncontributory social benefit conditioned on a

residency requirement, but it concerned foreign EU students instead of foreign EU workers. The

facts are as follows: Mr. Bidar entered the United Kingdom in August 1998 to accompany his

mother, who entered the country to undergo medical treatment.54

Prior to September 2001, when

he began university at University College London, he lived with his grandmother in the United

Kingdom, as her dependent, and completed secondary school.55

Having sought assistance with

maintenance costs concomitant to his pursuing a degree, Mr. Bidar applied for a student loan.56

The British government rejected his application on the ground that he was not settled in the

country.57

Consequently, he initiated a claim against the British government in which he argued

that his freedom-of-movement rights were violated by the British government as a result of its

conditioning student maintenance loans on ones being settled in the country.58

The European Court of Justice, having followed the logic of Collins, held that it is

legitimate for a Member State to condition the reception of a student maintenance loan on ones

52Id.at para 72.

53Id.

54R. v. London Borough of Ealing and Secy of State for Educ. & Skills ,supra note 23, at para 20.


56Id.at para 22.

57Id.

58Id.at para 23.


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demonstration that one is sufficiently integrated into its society.59

The Court also held that a

Member State may avail itself of a residency requirement to determine whether one is

sufficiently integrated into its society.60

The United Kingdoms residency requirement at issue, however, did violate Mr. Bidars

rights.61

This is because, in addition to having precluded foreign EU students who lack

integration into British society from receiving a student maintenance loan, the residency

requirement precluded students who are integrated into British society from receiving a student

maintenance loan as well.62

Under the Student Support Regulations, which stated the eligibility

requirements for reception of student maintenance loans, it was the case that one who went to the

United Kingdom solely for the purpose of attending a higher educational institution was unable

to ever meet the requirement unless he subsequently qualified for Regulation (EEC) No 1612/68

status63

or he married a British national.64

Therefore, the scheme that the British government

used to condition the issuance of student maintenance grants was not based on objective

considerations other than nationality.65

ForsterreinforcedBidars holding. InForster, a twenty-year-old German national, Ms.

Forster, moved to the Netherlands in March 2000 to get a degree in teaching.66

Unlike the

plaintiff inBidar, however, Ms. Forster, in addition to attending school in the Netherlands, had

59Id.at para 57.

60Id.at para 59.

61Id.at para 63.

62Id.at para 61.

63Regulation (EEC) 1612/68 encompasses migrant workers and their families. Id.at para 16.

64Seeid.at paras 14-17.

65Id.at para 61. Because the scheme was not based on objective considerations other the nationality, the Court did

not have to determine whether the scheme was proportionate to the British governments aim.66Forster,supranote 23, at para 5.


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various kinds of paid employment there.67

For example, from October 2002 until June 2003, she

took part in a paid-work placement in a Dutch school that provides secondary education to

students who have behavioral and psychiatric problems.68

After her placement at that school,

however, Ms. Forster ceased to engage in employment for the remainder of time in school.69

During her time at school in the Netherlands, she was the beneficiary of a maintenance

grant provided by the Dutch state.70

She was awarded a maintenance grant despite the fact she

was not a Dutch national because the government considered her to be a worker within the

meaning of Article 39 EC, which qualified her to be treated the same way as Dutch nationals

regarding maintenance grants.71 After the government realized she was unemployed between

July and December 2003, however, it concluded that she was not a worker during that period

and, consequently, she was told that she had to pay back all the money she received from

maintenance grants during that period.72

The European Court of Justice rejected her argument that the Dutch governments having

forced her to repay all the money she received from maintenance grants between July and

December 2003 violated her freedom-of-movement right.73

First, it held that she stopped being a

worker the moment she stopped working.74

Therefore, she was not entitled to receiving the

maintenance grants during the aforementioned period on the basis of being a worker.75

Second,

it stated that, pursuant toBidar, a Member State may condition school maintenance grants on the

67Id.at para 16.68Id.at para 17.

69Id.at para. 18.

70Id.at para 20.

71Id.

72Id.at para 21.

73Id.at para 60.




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demonstration of a certain degree of integration into the society of that Member State and that a

residence requirement may be used to for the purpose of determining whether a foreign EU

national is sufficiently integrated into the society.76

Additionally, the Court stated that a five-year

residence requirement for the purpose of guaranteeing that a student is integrated into the society

of the host Member State is legitimate.77

It is legitimate for two reasons. The first reason is that it

does not go beyond what is necessary for a Member State to become assured that foreign EU

students are sufficiently integrated into its society.78

The second reason is that it is in accordance

with settled case law that in order to be proportionate, a residence requirement must be applied

by a Member State on the basis of clear criteria known in advance.

79

Therefore, because Ms.

Forster did not meet the residence requirement, she was not entitled to receive school

maintenance grants between July and December 2003.

Taken together, then, Collins,Bidar, andForstercan be viewed to imply that British

institutions of higher education are able to charge foreign EU nationalswith the exception of

foreign EU nationals who can be classified as workers, self-employed persons, retain the status

of a worker or self-employed person, or are a qualified family member of somebody falling

within one of those exceptions as a result of the special protection these groups are given under

EU law(1612/68-qualified persons)80studyingin the United Kingdom higher tuition on the

basis that they lack a sufficient degree of integration into British society. Each of these cases

separately held that distinguishing between prospective beneficiaries of noncontributory social


77Id.at para 52.

78Id.at para 58.


80See generallyDirective 2004/38/EC, of the European Parliament and of the Council 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 O.J. (L 158) 77.


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to the student, who then uses that subsidy to cover the cost of his education.83

Borrowing a

phrase from Daviess article: a grant barely touches the students hands. It is truly a disguised

fee reduction.84

Despite the strength of Daviess argument,there are reasons to distinguish student

maintenance grants from subsidized tuition. These reasons are contained in Articles 7(1)(c) and

24(2) of Directive 2004/38/EC.

As was mentioned already in this essay,85

Article 7(1)(c) of Directive 2004/38/EC makes

it clear that a Member State is precluded from denying the right of residence to an EU citizen

from another Member State who is enrolled at a university within its borders and is able to

demonstrate that he has both adequate health insurance there and sufficient pecuniary resources

to avoid burdening the social assistance system.86

Conversely, if a foreign EU student cannot

demonstrate to the host Member State that he has both adequate health insurance there and

sufficient pecuniary resources to avoid burdening its social assistance system, the host Member

State may deny him the right of residence there. This article, it can be argued, is what

distinguishes a maintenance grant from a tuition subsidy. If a foreign EU citizen were to have to

resort to the reception of a maintenance grant in order to finance his higher education in the host

Member State, there is no doubt this conduct would constitute burdening the social assistance

system and, therefore, violate Article 7(1)(c), justifying his being discharged of his right of

83Id.

84Id.

85See supraPart I.

86Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of



73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, art. 24(1), 2004 O.J. (L 158) 77,

112.


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residence. By contrast, it would be a stretch to argue that enjoying a subsidized fee to attend

school constitutes burdening the social assistance system of the host Member State.

Unlike a student maintenance grant, subsidized tuition is notpersesocial assistance.

Like roads, parks, and libraries, subsidized tuition in EU countries is a public good, meaning it is

a commodity provided without profit to everybody within a community by the government for

the formers well-being. Subsidized tuition is an EU public good because it is provided by the

EUs Member States to all EU citizens for EU citizens well-being. Subsidized tuitions

classification as a public good is important because societies do not view a community members

use of a public good as a burden on society.

Article 24(2) provides just as strong of an argument as Article 7(1)(c) does, if not more

so, regarding why student maintenance grants and subsidized tuition are distinguishable. As was

mentioned in footnote 22, Article 24(2) of Directive 2004/38/EC makes it clear that, despite the

fact that Article 24(1) states that all foreign EU nationals are to be treated by the host Member

State equally with its own nationals as long as the foreign EU nationals are residing there on the

basis of the Directive, the host Member State is not obliged to grant school maintenance aid to

foreign EU students unless they can be classified as workers, self-employed persons, retain the

status of a worker or self-employed person, or are a qualified family member of somebody

falling within one of those exceptions.87

Noticeably absent from that article is the European

Council and Parliaments imprimatur that Member States are not obliged to provide foreign EU

students subsidized tuition unless they can be classified as workers, self-employed persons,

87Directive 2004/38/EC, of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of




112.


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retain the status of a worker or self-employed person, or are a qualified family member of

somebody falling within one of those exceptions. This absence, then, is another reason to

distinguish student maintenance grants and subsidized tuition.

In summary, there is a cogent argument that Article 24 of Directive 2004/38/EC would

not be infringed if British institutions of higher education, excluding 1612/68-qualified persons,

only subsidized tuition for British nationals. This argument goes as follows: because i) there is

no meaningful difference between a fee subsidy and a student maintenance grant, ii) the

European Court of Justice has held that Member States may base the reception of a student

maintenance grant on the ability to satisfy a residency requirement, and iii) theForsterCourt in

particular held that the ability to satisfy a five-year residency requirement in order to receive a

student maintenance grant from the host Member State is legitimate, it necessarily follows that

iv) British institutions of higher education may justify only subsidizing tuition for British

nationals on the ground that foreign EU nationals, for the most part, will not satisfy a five-year

residency requirement. However, Articles 7(1)(c) and 24(2) provide reasons to distinguish

student maintenance grants from subsidized tuition. Article 7(1)(c) allows a Member State to

deny a foreign EU student a right of residence if he cannot demonstrate that he has both adequate

health insurance there and sufficient pecuniary resources to avoid burdening its social assistance

system, and access to subsidized tuition arguably does not constitute recourse to a Member

States social assistance system, whereas access to a school maintenance grant would because i)

receiving a school maintenance grant constitutesper sesocial assistance, unlike receiving a

tuition subsidy, and ii) a school maintenance grant is not a public good, whereas subsidized

tuition is. Article 24(2) explicitly allows a Member State to not grant school maintenance aid to


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foreign EU students who are not 1612/68-qualified persons, but it does not do the same for

subsidized tuition.

Part B: If Article 24 of Directive 2004/38/EC Would Be Infringed If British Institutions ofHigher Education Based Tuition on How Long One Has Lived in the United Kingdom, Could

Not Subsidizing Tuition for Foreign EU Nationals Be Justified on the Ground of Public Policy

Under Article 27?

Whether Article 24 of Directive 2004/38/EC would be infringed if British institutions of

higher education subsidized tuition for British nationals and 1612/68-qualified persons, but not

the tuition paid by foreign EU students is ambiguous. Even if the European Court of Justice were

to decide that that it would infringe Article 24, however, this would not necessarily preclude

British institutions of higher education from doing just that. Pursuant to Article 27(1) of

Directive 2004/38/EC, a Member State may disregard foreign EU nationalsArticle 24 freedom-

of-movement rights under certain circumstances: Member States may restrict the freedom of

movement and residence of Union citizens and their family members, irrespective of nationality,

on the grounds of public policy, public security or public health.88

These grounds, however,

Article 27(1) continues, shall not be invoked to serve economic ends.89

Additionally, pursuant

to Article 27(2), for one of Article 27(1)s exceptions to be applicable, i) the restriction imposed

by the host Member State must comply with the principle of proportionality, ii) the restriction

must be based on the personal conduct of the person concerned, and iii) the personal conduct of

88Directive 2004/38/EC, of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of




113.89Id.


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the person on whom the restriction is being imposed must represent a genuine, present and

sufficiently serious threat affecting one of the fundamental interests of society.90

An apt case issued by the European Court of Justice regarding the public policy exception

to the principle of equal treatment is Van Duyn v. Home Office. The genesis of this case was the

British governments refusal to grant leave to a Dutch woman to enter the United Kingdom to

work as a secretary for an English branch of the Church of Scientology.91

The British

government based its decision on the fact that it viewed the Church of Scientology as a socially

harmful organization.92

Because Article 3 of Directive No 64/221/EEC, the precursor to Article

27 of Directive 2004/38/EC, mandated, as Article 27 of Directive 2004/38/EC now does, that a

Member States invocation of the public policy exception to the principle of equal treatment be

based exclusively on the affected persons personal conduct, the Court had to determine

whether association with a body or an organization can in itself constitute personal conduct

within the meaning of Article 3 of Directive No 64/221.93

The Court answered this question

affirmatively, having stated that present association does constitute personal conduct.94

After concluding that present association constitutes personal conduct, the Court had to

determine whether present association with a legal body or organization could be used to invoke

Article 3.95

It held that present association with a legal body or organization, such as the Church

of Scientology, could be used by a Member State to invoke the concept of public policy within

Article 3 if it considers the body or organizations activities to be contrary to the public good.96

90Id.at art. 27(2), 114.

91Case 41-74, Van Duyn v. Home Office, 1974 E.C.R. 01337, para 2.

92Id.at para 3.


94Id.at para 17.

95Id.at para 18.

96Id.at paras 18-19


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foreign EU nationals with British institutions of higher education may constitute a legitimate

reason under the public policy exception to the principle of equal treatment to disallow the

subsidization of their educations within the United Kingdom. First, Van Duynwas an action

initiated under Directive No 64/221/EEC, one of the precursors to Directive No 2004/38/EC.

Therefore, it demonstrates how Article 27 of Directive No 2004/38/EC is to be interpreted and

applied. Second, if the Church of Scientologys activities were contrary to the public good in the

United Kingdom, surely the activities of the United Kingdoms institutions of higher education

could be deemed contrary to the public good.

In the United Kingdom today, as is the case elsewhere in the West, having access to

postsecondary educational institutions is a virtual necessity for success. The reasons are

plentiful: low-skilled jobs are difficult to come across, as many such jobs have been offshored to

third-world countries; competition for jobs in all sectors is a lot more competitive than it was

during any other point in history as a result of globalization; and jobs these days are a lot more

sophisticated than they used to be, requiring more education to perform them. Sadly, then, when

having a postsecondary education is more important than ever before, it is becoming increasingly

inaccessible to a great number of young Britons. Average tuition at British universities is now

above 8,500.103

That is about three times as high as tuition was during the 2011/12 academic

year.104

That foreign EU students studying within the United Kingdom are a cause of these

drastic tuition hikes cannot be doubted. The most basic understanding of economics informs one

that when over 132,550 foreign EU nationals, 5.31 per cent of the university-student population

103Tuition Fees in 2013 Will Rise To 8.500 On Average,supranote 10.

104D. D. Guttenplan, supra note 8.


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in the country,105

have their educations subsidized by the British government, tuition is going to

go up drastically.

The effects of skyrocketing tuition in the United Kingdom are very conspicuous. Within a

period of merely one year, 54,000 fewer Britons enrolled at a British university.106

That is an

astounding 6.6 per cent decline from the prior academic year.107

It is important to note that it is unfeasible for most young Britons to avail themselves of

Directive No 2004/38/EC to get a subsidized education in another Member State. Unlike their

counterparts in other Member States, knowledge of foreign languages is not something for which

the British are known: most Britons solely speak English.108

By contrast, it is unclear from Van Duyenhow the Church of Scientologys activities

within the United Kingdom are contrary to the public good. Whatever its undesired activities are,

it is inconceivable that they are more contrary to the common good in the United Kingdom than

the aforementioned practices by British universities.

Having established that the current activities of British universities are contrary to the

common goodmaking access to postsecondary education for many Britons inaccessible by

subsidizing foreign EU nationals educationsit arguably follows from Van Duyenthat the

British government may invoke the public policy exception to the principle of equal treatment.

Rather than to outright deny them leave to enter the United Kingdom, as occurred in Van Duyen,

however, it would be enough to deny them the tuition subsidization that British citizens receive.

105StatisticsStudents and Qualifiers at UK HE Institutions ,supranote 6.

106D. D. Guttenplan, supranote 8.

107Id.

108See David Thomas, Why Do the English Need to Speak a Foreign Language when Foreigners Speak English?

(Jan. 23, 2012, 1:01 PM), http://www.dailymail.co.uk/debate/article-2090595/Why-English-need-speak-foreign-

language-foreigners-speak-English.html.


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Such conduct would not run afoul of the principle of proportionality. Even a partial subsidy of

foreign EU citizens educations by British universities would push up tuition for Britons and,

consequently, negatively affect their ability to attend university.

One important way in which the issue at hand and the issue that was present in Van

Duyenare distinguishable, however, is that the issue in the latter was noneconomic in nature,

whereas the former is economic in nature. This is important, because Article 27(1) of Directive

No 2004/38/EC states unequivocally that restriction of the freedom of movement of EU citizens

on the ground of public policy shall not beinvoked to serve economic ends.109

Despite this

phrase, there are opinions that the European Court of Justice has issued that imply that it is rather

inoperative. These cases areKohlland Campus Oil.

In Campus Oil, at issue was an Irish law that requires importers of petroleum products to

purchase a certain portion of their petroleum requirements from a state-owned company that

operates a refinery in the country.110

The prices of the petroleum products that the importers are

required to buy from the state-owned company are set by the government.111

In response to the

aforementioned law, six Irish businesses that trade petroleum products sought a declaration that

the law infringed EU laws general prohibition on impediments to the free movement of goods

within the EU.112

The Irish government countered that, as a matter of public security, the law

was necessary.113

First, it explained that the state-owned petroleum refining company was

109Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of




113.110

Case 72/83, Campus Oil Ltd. v. Minister for Indus. & Energy, 1984 E.C.R. 02727, para 1.111

Id.112

Id.at para 2.113

See id.at paras 5-6.


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necessary to prevent the country the country from becoming completely dependent on foreign

petroleum products.114

Second, it explained that the law at issue is meant to ensure that the state-

owned petroleum refinery remains solvent.115

Despite its acknowledgment that derogation from the prohibition of barriers to trade

within the EU on the ground of public security must be non-economic in nature,116

the European

Court of Justice held that a Member State that is very dependent on imports for its supply of

petroleum products may rely on the ground of public security to require importers of petroleum

products to purchase a certain portion of their petroleum requirements at government-fixed

prices from a company that operates a refinery in the Member State if it is necessary to keep the

company solvent.117

According to the Court, a Member States aim of always ensuring a

minimum supply of petroleum products transcend[s] purely economic considerations and [is]

thus capable of constituting an objective covered by the concept of public security.118

This is

because, the Court reasoned, petroleum products are essential for a countrys existence, because

its economy, institutions, essential public services, and the survival of its inhabitants depend

upon them.119

Continued the Court, these resultant dangers are consequently public security

matters.120

InKohll, at issue was a Luxembourgian law that prohibited one, except in the case of

emergency treatment received as a result of an illness or accident abroad, from receiving

insurance coverage for medical treatment abroad without first obtaining prior authorization from

114Id.at para 5.

115Id.at para 6.

116Id.at para 35.

117Id.at para 51.

118Id.at para 35.

119Id.at para 34.

120Id.


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the competent social security institution.121

Such authorization was only granted if it was found

that the treatment that was sought would have been impossible to receive in Luxembourg.122

The

law was challenged by Mr. Kohll after social security medical advisors rejected his request that

his daughter be permitted to receive coverage for orthodontist treatment in Germany.123

The

rejection issued by the social security medical advisors was based on the ground that his

daughters treatment was not urgent and could be provided in Luxembourg.124

Mr. Kohlls

challenge was predicated on the freedom-to-provide-services principle.125

The European Court of Justice held that the law at issue infringed on the right to provide

services because it deterred insured persons from receiving medical services from providers in

other Member States.126

After it reached that conclusion, it went on to determine whether tjis

infringement could be justified.127

The Luxembourgian government argued that the law was

justified on the ground that it was necessary to guard against the risk of the financial balance of

the social security schemes being unable to provide medical and hospital service to all of its

citizens.128

The Court began its analysis of whether the law constituted a justified derogation from

the freedom-to-provide-services principle by stating that an aim that is purely economic cannot

justify a barrier to the principle of freedom to provide services.129

It then stated that the risk of

the financial balance of a Member States social security system being undermined may

121Case C-158/96,Kohll v. Union des caisses de maladie, 1998 E.C.R. I-01931, para 6.122

Id.at para 7.123

Id.at paras 2-3.124

Id.at para 3.125

Id.at para 5.126

Id.at para 35.127

Id.at para 36.128

Id.at para 38.129

Id.at para 41.


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constitute an overriding reason in the general interest that is capable of justifying a barrier that

is of an economic nature.130

Specifically, it stated that a Member States objective of maintaining

a balanced medical and hospital service that all Luxembourgians are able to enjoy may be able to

constitute a valid derogation from the principle of freedom to provide services on the ground of

public health.131

In the case at issue, however, the Court held that the derogation from the

principle of freedom to provide services on the ground of public health could not be justified, as

the Luxembourgian government was unable to demonstrate that the law at issue was necessary to

maintain a balanced medical and hospital service accessible to all Luxembourgians.132

It appears, then, that the language of Article 27 that states that a Member States

restriction of the freedom of movement of EU citizens on the ground of public policy shall not

be invoked to serve economic ends would not precludeBritish institutions of higher education

from subsidizing British nationals and 1612/68-qualified persons tuition but not other EU

nationals tuitionin order to safeguard Britons access to postsecondary education. This is

because the rationale the European Court of Justice applied in Campus OilandKohllis

applicable to the issue at hand. Applying Campus Oils rationale, because the Court held in that

case that Irelands having adequate petroleum products is essential for the countrys existence,

causing its scheme that requires importers of petroleum products to purchase a certain portion of

their petroleum requirements from a state-owned company in the country at prices fixed by the

government to ensure sufficient petroleum products in the country to transcend[ ] purely

economic considerations, there is a strong argument that a scheme by the British government to

disallow British institutions of higher education to subsidize foreign EU nationals tuitionin

130Id.

131Id.at para 50.

132Id.at para 52.


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freedom to move and reside freely within the EU. Therefore, the scope of the phrase in Campus

OilandKohllis almost certain to be the same as it is under Article 27(1). Third, if the phrase

were to have a different scope under Article 27(1) than it had in Campus OilandKohll, it would

arguably be less restrictive under Article 27(1). The freedom to move and reside freely within the

EU is a lot more recent than the freedom to freely move goods within the EU and the freedom to

provide and receive services within the EU.133

Therefore, it is seems inconceivable that the

phrase that the grounds of public policy, public security, or public health shall not be invoked to

serve economic endsin a directive that applies to the freedom to move and reside within the EU

would be broader than the same phrase as it applies to the freedom to freely move goods within

the EU and the freedom provide and receive services within the EU.

While the issue at hands economic nature is likely unproblematic, there is a different

aspect of it that may be problematic. Unlike in Van Duyen, where the Church of Scientology was

viewed by the British government asper sesocially harmful, when it comes the British

institutions of higher education, they are notper sesocially harmful. To the contrary, they

provide people with the education necessary to succeed in the contemporary marketplace.

Rather, the only socially harmful activity they engage in, as it relates to British nationals, is

subsidizing the tuition of foreign EU nationals. What is more, the reason they engage in this

activity is because of they are supposedly required to do so under Directive 2004/38/EC. This is

a large difference between the facts that were present in Van Duyenand the facts concerning the

issue at hand.

The aforementioned difference between Van Duyenand the issue at hand arguably does

not cause an insurmountable problem. This is because the difference is arguably not an important

133SeeJohns,supranote 14, at 245.


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one. First, just because a body or organization is notper se socially harmful to society does not

indicate that it does not engage in at least some activities considered to be contrary to the

common good, which is all Van Duyenrequires for the concept of public policy within Article 27

to be invoked.134

As was explained, although they are notper sesocially harmful, British

institutions of higher education do engage in activities that are harmful to society in that they

subsidize foreign EU nationals educations. Second, just because British institutionsof higher

education believe they are, and might be, acting pursuant to Directive 2004/38/EC when they

subsidize foreign EU nationals educations does not preclude this activity from beingable to be

classified as socially harmful. Even though segregation was engaged in by state entities during

the Jim Crow pursuant to state and local law in the Deep South, virtually nobody would claim

that segregation was not socially harmful. Although, unlike the segregation laws in the Deep

South during the Jim Crow era, the intention of the EU institutions that implemented Directive

2004/38/EC were goodto facilitate integration between the peoples and Member States within

the EUits effects are contributing to an educational disaster within the United Kingdom. Third,

the holding in Van Duyenemphasized that because the particular circumstances that justify

recourse to the concept of public policy are different in each Member State, Member States are

to be given discretion when determining what activities are contrary to the public good.135

The

word discretion implies that, despite the fact that British institutions of education are notper se

socially harmful and despite the fact their socially harmful activities appear to be done under the

aegis of Directive 2004/38/EC, the European Court of Justice would be at least somewhat

reluctant to challenge the British government if it were to formally state that British institutions

of higher education engage in socially harmful activities in that they make access to higher

134Van Duyen, at paras 18-19.

135Van Duyen, at para 18.


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education inaccessible for many young Britons by subsidizing foreign EU citizens educations,

causing tuition to exponentially rise.

In summary, if the government of the United Kingdom were to decide that it no longer

wishes to subsidize the tuition of foreign EU nationals educations within the United Kingdom

and the European Court of Justice were to hold that not doing so would infringe on the latters

right to be treated equally with British nationals under Article 24 of Directive 2004/38/EC, it

may still be able to end state subsidization of foreign EU nationals educations at British

institutions of higher education by invoking Article 27 of Directive 2004/38/EC. Article 27

allows a Member State to infringe foreign EU nationals Article 24 right to equal treatment with

nationals of the host Member State under the concept of public policy, which can be invoked by

a foreign EU national being associated with a body or organization that engages in activities that

are socially harmful. The British government may be able to successfully argue, then, that

foreign EU nationals studying at British institutions of higher education, excepting 1612/68-

qualified persons, may be subjected to differential treatment than British nationals regarding

tuition subsidization because i) they are associated with British institutions of higher education

and ii) these institutionsby causing tuition to go up by subsidizing foreign EU nationals

educations and, therefore, making higher education inaccessible for many young Britons

arguably are engaging in an activity that is socially harmful to British society. If Campus Oiland

Kohllare applicable, the fact that the problem the British government would be addressing is

primarily economic in nature would not be problematic despite the phrase in Article 27 that

states that the concept of public policy shall not be invoked to serve economic ends, but

whether these cases apply is not certain. More problematic is the fact that British institutions of

higher education are notper sesocially harmful and the activities that they engage in that may be


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construed as socially harmful appear to be under the aegis of Directive 2004/38/EC,

distinguishing their activities with those of the Church of Scientology in Van Duyen. There

appear to be strong arguments, however, as to why these differences between the socially

harmful activities of British institutions of higher education and the socially harmful activities of

the Church of Scientology in Van Duyenshould not matter.

III. CONCLUSION

In conclusion, despite the contrary belief of Member States and EU institutions of higher

education, British institutions of higher education may, excepting 1612/68-qualified persons, be

able to deny tuition subsidies to foreign EU nationals without violating EU law. There are two

possible ways they may be able to do so. First, there is a strong argument that, in light of recent

opinions issued by the European Court of Justice regarding the scope of the principle of equal

treatment, Article 24 of Directive 2004/38/EC would not be infringed if British institutions of

higher education based tuition on how long one has lived in the United Kingdom. Whether this

argument would be successful would depend on whether the Court accepts the argument that a

school maintenance grant and subsidized tuition are not meaningfully different from one another

and how much emphasis it places on the fact that Article 24(2) of Directive 2004/38/EC

specifically exempts EU institutions of higher education from having to provide foreign EU

nationals with school maintenance aid, but is silent on whether EU institutions of higher

education have to provide foreign EU nationals with subsidized tuition. Second, there is a strong

argument that even if Article 24 of Directive 2004/38/EC would be infringed if British

institutions of higher education based tuition on how long one has lived in the United Kingdom,

these institutions could nonetheless not provide foreign EU nationals with subsidized tuition by

invoking the ground of public policy under Article 27 of Directive 2004/38/EC. Whether this


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argument would be successful would depend on whether the Court viewed this issue as one that

transcends purely economic considerations and is capable of constituting an objective covered by

the public policy exception and whether it matters that British institutions of higher education are

notper se socially harmful and the socially harmful activities they engage in appear to be under

the aegis of Directive 2004/38/EC.

The British government ought to further inquire into whether it is able to, excepting

1612/68-qualified persons, end the tuition subsidies it currently provides to numerous foreign EU

nationals each year. Subsidizing the tuition of foreign EU nationals is done at the expense of

young Britons, who are increasingly unable to receive a postsecondary education, and, as a result

of the advent of globalization, not having a postsecondary education negatively affects ones life

in a profound manner.

would charging continental students higher tuition than british students at british institutions of...

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