EU Law: Educational Organisation And Policy Are Not As Such Included In The Spheres Which The Treaty Essay, Research Paper

In 1957, the EEC was created under the Treaty of Rome, its primary objectives involving economic integration . Education did not fall within the scope of such integration, its only relevance being in regard to vocational training under article 128 of the Treaty. Where such training would aid the development of the nation’s economy and the common market. It was not until the TEU in 1992 that education was given a Treaty basis under the EC Treaty (article 126-127). During the intervening period, the activism of the European Court of Justice resulted in an ‘education policy’, albeit only where access and treatment was involved. Under article 128 of the EEC Treaty, the Council was to lay down general guidelines for the implementation of a “common vocational training policy”. The council was seen to use a series of soft law to regulate the area of education. Council regulation 1612/68 granted clear and express rights concerning equality of access and treatment in education of immigrant workers and their children. This though was limited in scope due to the many students within the Community who did fall under the ambit of the regulation. Despite such manifest restrictions, the Court interpreted vocational training widely, thus increasing the jurisdiction of the Community in this area. In Casagrande1, the child of an immigration worker was accorded with equal rights to that of nationals in education under regulation 1612/68. The Court acknowledged that despite lack of specific powers in this area, through the doctrine of implied powers, if education was effected by the proper exercise of Community powers, these powers should not be curbed. Therefore a certain degree of influence could be exerted over education by the Community, where competences overlapped. The scope of the Community over education was widened further in Forcheri v Belgium2. This involved the wife of an immigrant worker in Belgium, who was required to pay the minerval for her vocational course3, this fee being incurred only by non-nationals. The Court resolved the case under article 7 of the EEC Treaty, applying the principle of non-discrimination. The Treaty basis for the Community in this area was found in article 128. Whilst the Court was seen in its activist role by extending Regulation 1612/68 to include the spouses of immigrant workers. Therefore, the charging of the minerval to EC nationals was discriminatory thus illegal under Community law. It is disputable though whether such an application was intended for article 128. Where its express purpose was to enable the Council to provide general principles for a common policy, with the use of majority voting, and no role for the Parliament. Such a requirement is extremely uncommon for such an area given great importance by member States. The Court though, takes a teleological interpretation of the article creating a basis for Community intervention in this area. In Gravier v Liege4, a French national resident in France, registered for a course at a non-university institution in Belgium, requiring the payment of the minerval. The plaintiff claimed under article 59 EEC, free movement of services5, where the minerval was an obstruction to free movement. The Court though, relied upon article 7 and 128 EEC, as employed in Forcheri, to prohibit the minerval for EC students participating in vocational training. Where vocational training was provided by an institute of higher education preparing the student with qualifications, skills or training for a specific trade, profession or employment. The Court also judged that no competences were held by the Community over educational policy and organisation. Instead a policy concerning vocational training was seen to be formulated. In Blaizot v University of Liege6, eleven French nationals studying veterinary medicine at university in Belgium claimed a refund of the minerval in light of Gravier. The Court judged that university degrees were vocational where skills, qualifications or training were provided for a certain occupation. Consequently, access to university courses came under the sphere of Community institutions. This inevitably effected the organisation and policy of member States in this area, where income to fund universities was subsequently reduced. To a certain extent though the Court restricted the liability of the member states and therefore the impact upon funding by only allowing refunds where proceedings were initiated prior to the ruling. However a similar claim and judgement in Barra v Belgium7, involving a non-university institute was not limited. University courses designed merely to increase general knowledge rather than skills for a specific occupation, were judged to be non-vocational. However, no examples were given by the Court. In Lair v University of Hanover8, a course in Romance and Germanic languages was not challenged though for being non-vocational. With many graduate vacancies only distinguishing on class of degree, a distinction between vocational and non-vocational is of little use, and thus extends the jurisdiction of Community law further. The case involves a French national residing in Germany who was refused a maintenance grant due to failure to comply with German legislation. This required residence and employment within Germany for five years before such grants were awarded. The Court held that maintenance grants did not fall within article 7 EEC, being distinguishable from grants to pay fees, and therefore access to education. Instead maintenance fell under the ambit of social policy, the competence of the member States. Article 7(2) of Council Regulation 1612/68 though, entitles immigrant workers to the same ’social advantages’ of nationals. Furthermore, the Court judged that the domestic legislation was invalid, with the concept of immigrant workers being derived from Community law, it was not to be regulated domestically, thus the plaintiff was classed as an immigrant worker9. Therefore maintenance grants were to be awarded, with this being a social advantage. There was a need though to show a link between the previous employment and the subsequent course. In Brown v Secretary of State for Scotland10, the plaintiff had dual nationality, British and French, but resided and was educated in France. However, on taking up a course at a British university, a pre-university industrial training course was taken. However, there was no entitlement to a maintenance grant under national regulations. As in Lair, the national legislation was declared invalid. However there was no entitlement under regulation 1612/68 as the course was not intended to “further the career already embarked upon”. With the pre-university training was incidental to the course and only offered due to the place taken at university. Although the judgements in Lair and Brown are limited in scope, it highlights how under the doctrine of implied powers the Community has been able to gradually gain competence in education organisation and policy. It is surprising though that the Court did not continue its activist approach by holding maintenance grants to be an issue of access, for surely maintenance is a vital consideration for students before entering into a courses. This though may be seen as a compromise by the Court, not to overburden the member States, thus effecting the funding of education, and therefore its organisation and policy. Humbel v Belgium11, concerns secondary education in respect to vocational training. The Court held that despite vocational training being offered as part of the national education system, this was not a service under article 59 EEC. For education under the national system was provided as a public duty of the government and not for remuneration, as stipulated in article 59. Thus restricting the scope of Community action in education to where either vocational training is involved or a service under article 59. For with private fee paying schools there is no such restriction, and no distinction between vocational and non-vocational. The Council has attempted to develop education with an European dimension through voluntary programmes such as ERASMUS and LINGUA, involving greater co-operation and exchange of students, teachers and information, whilst promoting European languages. This has been achieved through using article 128 EEC as the basis despite no express provisions11a. For such programmes may be seen to provide the Community with influence over the content of education and therefore its organisation and policy, which Gravier denied to the institutions. Thus through secondary legislation and case law, the Community has produced a piecemeal education policy, mainly concentrating on access and equality. However, through the doctrine of implied powers the jurisdiction of the Community in education has been extended in areas effecting workers, services, and especially vocational training. Recently, Council Directive 90/360 provides for the right of residence for students in vocational training, thus ensuring access and equality12 . The Court is also able to draw justification of its dynamism in this area through the Community considering education to be an integral part of the its development13. Although this recognition has not provided binding powers for the institutions, it acts as a source of direction for the Community to aim for. Whilst education has been regarded as a lever for integration, with the need to provide an ‘European dimension to education to achieve this14. However in the TEU, the Community’s approach to education was finally given greater coherency through a Treaty basis in article 126-127. Article 126(1) provides for the objective of ‘developing quality education’ through co-operation with member states. Where the Community will ’support and supplement’ the actions of the member States. However, the member states are to have responsibility over the content and organisation of education thus reflecting Gravier. Under the principle of subsidiarity15 though how this effects the doctrine of implied powers is uncertain. For as seen the action taken in regard to maintenance grants and subsequently funding does effect the organisation of education. However, if the doctrine was to repealed this would run counter to another Community principle, that of acquis communautaire16. Article 126(4) entails further safeguards against centralisation of education, prohibiting the harmonisation of laws, reflecting the reluctance of member States such as the United Kingdom and Germany to cede sovereignty in this area The aims of the Community concerning education are laid down in 126(2), which involve developing an ‘European dimension’ in education, increasing co-operation and mobility. However, this seems to contradict article 126(1) for the encouragement of an European dimension through incentive measures will inevitably effect the content, which is the ‘responsibility of the member States’. Article 127, concerns vocational training and is based around a similar structure to article 126. Where a policy will be implemented by member States which the Community will ’support and supplement’, whilst excluding any harmonisation. The TEU serves to codify the existing case law in terms of the scope of Community education policy, limiting its activities to that of vocational training and where the free movement of the service is involved. Areas such as the mutual recognition of qualifications, which previously had been found only in ’soft law’ are also given a basis, in the aim of achieving greater mobility of students and teachers. The Treaty though seems to be purposely ambiguous over the type of education referred to. Article 126 only refers to ‘developing quality education’, with no specific level mentioned. Thus in the future this may allow the Community to extend its jurisdiction to primary and secondary education. With no longer there being a need for the education in question to be of higher education of a vocational nature or a service under article 59. Therefore, the ruling in Gravier, in regard to education policy and organisation is not drastically changed by the TEU. For the member States retain their competences in this area, however the Community is entrusted with powers, where necessary. The extent that the Community may contribute though is still unknown with the limits of the article yet to be challenged before the Court. It is likely though that the Court’s activism will allow for greater co-operation and supranationalism over education in the future. Although the TEU fails to provide direct policy competence over equal access to education, the principle of acquis communautaire will ensure that the case law formulated is maintained. Especially through the provisions for non-discrimination in article 6, where the basis for action is found in article 126-127. Whilst article 59, 60 and 62 will ensure that restrictions to education as a service are abolished and no new restrictions are imposed. Therefore the case law of the Community has created a policy over access and equal treatment in education. In terms of freedom to receive the service without any obstructions or discrimination. There is no express allocation of competences in regard to educational policy and organisation to the Community though despite implied powers. For under the doctrine, matters such as funding and content have been permitted, despite their effect on such areas. Thus Gravier, has been essentially correct in stating that no competences have been entrusted to the institutions, but through judicial activism the Community has been seen to influence the policies of member States through case law and secondary legislation. The TEU has been seen to reaffirm Gravier, by stating that education policy and organisation is the competence of member states, but also provides the rights for the Community to exercise in these spheres, thus in contradiction to Gravier. With the imminent expansion of the Community to encompass the EFTA nations, and proposed membership to include the former eastern bloc nations the cultural and linguistic diversity of the Community will invariably increase. The implications of this is that educational organisation and policy in the future at a supranational level will become increasingly difficult in light of such diversity. Furthermore, even in federations such as the USA and Germany, education is always viewed as a matter for the states and not the federation. Thus the future of any Community education policy is likely to lie in the creation of an European dimension in education and subsequently developing an European identity. BIBLIOGRAPHY: Green, Hartley & Usher. The Legal Foundations of the Single European Market 1991 Sprokkereef,A. ‘Development in EC Education Policy’ in Lodge.J , The EC and the Challenge for the Future (1993) 2nd Edn. Wyatt & Dashwood. EC Law (1992) 3rd Edn. Weatherill & Beaumont. EC Law (1993) Lonbay. J, ‘Education and the Law: The Community Context. European Law Review (1989) 363 Flynn. ‘Vocational Training in Community Law and Practice’ (1988) YEL 60 Gould. ‘Equality of Access to Education’ (1989) MLR 540 Lenaerts.K. ‘Education in EC Law after ‘Maastricht’.’ 31(1994) CMLRev 7 Foster. EC Legislation. (1993) 4th Edn. Lasok, D. ‘Students’ Rights in the European Community’ Student Law Review 12(1994) 46 Cases Referred To: Case 293/83 Gravier [1985] ECR 593 Case 152/83 Forcheri [1983] ECR 2323 Case 24/86 Blaizot [1988] ECR 379 Case 39/86 Lair [1988] ECR 3161 Case 197/86 Brown [1988] ECR 3205 Case 236/86 Humbel [1988] ECR 5365 Case 9/74 Casagrande [1974] ECR 773 Case 309/85 Barra [1988] ECR 355 Case 286/82 Luisi & Carbone [1984] ECR 377