Notes of Cases
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02614.x |
| Date | 01 July 1989 |
| Published date | 01 July 1989 |
NOTES
OF
CASES
EQUALITY
OF
ACCESS
TO
EDUCATION?
Introduction-EEC Law
on
Education
ALTHOUGH a common policy
on
education was not included in the
Treaty
of
Rome, Article
128
EEC does provide that “the Council
shall
.
,
.
lay down general principles
for
implementing a common
vocational policy.” This provision was virtually unused for some
years, but now forms a major foundation for many
of
the Com-
munity’s educational initiatives. As a subject,
EEC
law
on
education
now encompasses a variety
of
issues,l ranging from cases
on
the free
movement
of
teachers2 to directives
on
the mutual recognition
of
dip-
loma~.~
By far the majority
of
cases in this area concern equality
of
access
to education for various classes
of
Community nationals. More speci-
fically, they are concerned with the financial aspects
of
access. In
Brown
v.
Secretary
of
Statefor Scotland4
the European Court
of
Jus-
tice had to decide which types
of
education were covered by this prin-
ciple
of
equal access and the extent to which students could rely
on
the principle.
In
earlier English cases “vocational training” had been
equated with “training in vocational schools.”
In
Brown
the Euro-
pean Court ruled that the two terms were fundamentally different.
Additionally, it was held that Community law could not require
Member States to consider nationals
of
other Member States
for
the
award
of
maintenance grants, although their fees would be paid. The
Court also took the opportunity
of
clarifying some points
of
law relat-
ing to the free movement
of
workers.’ Before examining the
Brown
case and its implications, it is appropriate to give a brief account
of
the development
of
the law in this area.
In
Casagrande
v.
Landeshauptstadt Miinchen,6
the Court
of
Justice
held that to deny the
son
of
an Italian migrant worker and a life-long
resident
of
Munich the right to claim a means-tested grant
so
that he
’
For
a useful introduction
to
this relatively new area
of
law see Bruno de Witte
(ed.), The European Community Law
of
Education (Baden-Baden: Nomos, 1989).
In
which the Member States’ reliance
on
the public service exemption in Article
48(4) EEC is challenged. See,
for
example, Case 66/85 Lawrie-Blum v. Land Baden-
Wurttemberg [1987] 3 C.M.L.R. 389; Case 66/87 Groener v. Minister
for
Education
(reference
from
the High Court
of
Ireland,
O.J.
1988 C 37/5) and John Handoll,
“State-Definition and the Free Movement of Workers” (1987) 9 D.U.L.J.
64.
See Recognition
of
Higher Education Diplomas, 22nd Report of the House
of
Lords Select Committee
on
the European Communities, H.L. 240 (1985-86) and
Directive 89/18/EEC;
O.J.
1989 L 19/16.
Case 197186 [1988] 3 C.M.L.R. 403.
These will
not
be considered in this note, but see Case 39/86 Lair v. Universitut
Case 9/74 [1974] E.C.R. 773.
Hannover, judgment of June 21,1988, not yet reported.
540
JULY
19891
NOTES
OF
CASES
541
could continue at school into the 10th class on the ground that he was
not a German national amounted to discrimination prohibited by
Community law. It accepted that educational policy was not a Com-
munity matter, but stated that “it does not follow from this that the
exercise
of
powers transferred to the Community is in some way
restricted
if
it is
of
such a nature as
to
affect the measures taken in the
execution
of
a policy such as that
of
education and training.”7 Article
12 of Regulation 1612/6S8 (which allows the children of migrant Com-
munity workers access to education in the host State on the same
terms as nationals of that State) therefore gave the appellant the right
to consideration for a maintenance grant on the same footing as a
German national.
A different provision
of
this regulation was used by the High Court
in
MacMahon
v.
Deparfment
of
Education and Scien~e.~
Dillon
J.
held that Article
7(2)
and
(3)
of Regulation 1612/681° entitled an Irish
national who had worked in the United Kingdom for a year before
starting a teacher-training course to consideration for a maintenance
grant and to pay the fees appropriate for a United Kingdom student.
He
rejected an argument that the teacher training college was not a
“vocational school” within the meaning
of
the Article: “The phrase
‘training in vocational schools’ covers any training in a school or col-
lege which is intended to prepare or qualify a person for a particular
vocation or job, whether manual or technical or not.yy11 Since Mac-
Mahon had gone on to pursue a career as a teacher, the conclusion
that his training was vocational was inescapable.
Article
7
EEC prohibits “within the scope of application of this
Treaty, and without any prejudice to any special provisions contained
therein, any discrimination on grounds of nationality.” In the
For-
cheri
case12 the European Court held that the conjunction of this pro-
vision with the requirement laid down in Article 128 EEC outlawed
discrimination in the form of an additional enrolment
fee,
known as
the
rninerval,
levied only on foreign students.
It
was, however, care-
ful to reassure the Member States that it was not encroaching on their
right to define educational policy: “Although it is true that edu-
cational and vocational training policy is not as such part of the areas
which the Treaty has allotted to the competence
of
the Community
’
[1974] E.C.R. 773,779 (consideration 12).
Regulation (EEC)
No.
1612/68 of the Council
of
October 15,1968 on freedom
of
movement for workers within the Community,
J.O.
1968 L257/2
(O.J.
Eng. Spec. Ed.
(1968:
11)
p.
475).
[1982]
3
C.M.L.R. 91.
“2.
[A
worker] shall enjoy the same social and tax advantages as national workers.
3.
He shall also, by
virtue
of
the same right and under the same conditions as
national workers, have access to training in vocational schools and retraining
centres.”
lo
This provides that:
[1982]
3
C.M.L.R. 91,97.
I*
Case 152/82
Forcheri
v.
Belgium
[1983] E.C.R. 2323.
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