Article 7 of the Treaty of Rome Bites

DOIhttp://doi.org/10.1111/j.1468-2230.1985.tb00853.x
AuthorAnne de Moor
Publication Date01 Jul 1985
452
THE
MODERN
LAW
REVIEW
[Vol.
48
there is more than one view of the most appropriate way to oppose
it.
If
an elected authority is free to require citizens publicly to
endorse its social policies, as the price of its consent to the use of
public facilities, important individual rights and opportunities for
political debate and criticism are alike placed in jeopardy.
T.
R.
S.
ALLAN*
ARTICLE
7
OF
THE
TREATY
OF
ROME BITES
THE
plaintiffs in the case before a Belgian Court, which led to the
recent ruling of the European Court of Justice in
Forcheri,’
were
an Italian married couple. Mr. Forcheri, an official of the European
Commission in Brussels, and his wife complained that Mrs. Forcheri
had been required to pay an extra
fee
as a foreign student for
attending a training course for social workers. The European Court
in a formation of five judges advised the Belgian Court that
discriminatory practices of this nature might be contrary to
European Community Law. The Court’s reasoning is noteworthy.
It attempts to steer a middle course between the “conservative
view” that in this context the right not be discriminated against on
the ground of nationality derives from Articles
48, 52,
and
59
of
the Treaty, by which Community nationals are guaranteed the
right to move freely within the countries of the European
Community in order to take up employment, set up a business, or
provide services, and the novel proposition that such a right flows
directly from Article
7
of the Treaty, by which any discrimination
on the ground of nationality within its scope
of
application is
forbidden. Before analysing the Court’s judgment and arguing that
it was not successful in avoiding the controversial implications of
the novel argument,
I
will show why the Court might have doubted
whether, on the conservative argument, the plaintiffs had a good
case.
Discrimination and the Right
of
Free Movement
When the drafters of the Treaty and later, the Community
Institutions charged with implementing it, explicitly rendered certain
forms of discrimination unlawful, it was with the aim of rendering
the right of free movement effective. Consequently, both the
substantive scope of the prohibition of discrimination, which in
Article
7
was set out in general terms, and its beneficiaries came to
be restricted by reference to this aim.
Roughly speaking, foreigners should have to be given non-
discriminatory access to productive activities only, and not, at first
sight, to educational facilities. It is true that in Article
7
(third
Lecturer
in
Law,
University
of
Nottingham.
I
am grateful to
Mr.
B.T.C.
Small,
M.B.E., M.A.,
partner
of
R.G.
Frisby and Small, solicitors
for
the applicants,
for
suyplying the
full
text
of
the judgment
in
the Court
of
A
peal.
Case
15382,
Forcheri
v.
Belgium and another,
[1983FE.C.R.
2323.

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