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EUROPE: Countries can restrict non-resident students

The European Union's Court of Justice has found that while EU law prevents countries limiting non-resident student enrolments in certain university courses in the public health field, this was legitimate if the restriction involved protection of public health.

The ruling is certain to attract the interest of European countries facing similar problems. Austria, for example, has many German students in its medical courses and has also imposed its own restrictions on non-resident enrolments.

The Court of Justice had been asked by Belgium's Constitutional Court to issue a preliminary ruling regarding limits placed on non-resident students in nine medical or paramedical courses.

The French Community in Belgium had noted a significant increase in the number of students from other member states, particularly France, enrolling in its institutions of higher education.

Believing the number of students had become too large, the French Community adopted a decree in June 2006 obliging universities and schools of higher education to restrict the number of non-resident students who registered for the first time in the courses.

The total number was limited to 30% of all enrolments in the preceding academic year.
Once that percentage was reached, non-residents were selected by drawing lots.

The Court of Justice said the legislation created a difference in treatment between resident and non-resident students and this constituted indirect discrimination on the ground of nationality. This was prohibited unless it was objectively justified.

According to the court, in the light of the method of financing higher education in the French Community, the fear of an excessive financial burden could not justify that unequal treatment.

But a difference in treatment based indirectly on nationality could be justified if the goal was to maintain a balanced, high-quality medical service open to all, "in so far as it contributes to achieving a high level of protection of health".

"Thus, it must be determined whether the legislation at issue is appropriate for securing the attainment of that legitimate objective and whether it goes beyond what is necessary to attain it.

"In that regard, it is ultimately for the national court, which has sole jurisdiction to assess the facts of the case and interpret the national legislation, to determine whether and to what extent such legislation satisfies those conditions," the Court of Justice said.

But it was up to the referring court to establish whether there were genuine risks to public health. But the court said it could not be ruled out a priori that a reduction in the quality of training of future health professionals might ultimately impair the quality of care provided.

"It also cannot be ruled out that a limitation of the total number of students in the courses concerned may reduce, proportionately, the number of graduates prepared in the future to ensure the availability of the service in the territory concerned, which could then have an effect on the level of public health protection.

"In assessing those risks, the referring court must take into consideration the fact that the link between the training of future health professionals and the objective of maintaining a balanced high-quality medical service open to all is only indirect and the causal relationship less well-established than in the case of the link between the objective of protecting public health and the activity of health professionals who are already present on the market."

The court said that in that context, it was for the competent national authorities to show such risks actually existed.

As well, if the referring court considers there are genuine risks to public health, it must assess in the light of the evidence provided whether the legislation is appropriate for attaining the objective of protecting public health.

The court said restrictions on access to education must therefore be limited to what is necessary to obtain the objectives pursued and must allow sufficiently wide access by those students to higher education.

It would also be up to the Constitutional Court to determine whether the selection process for non-resident students was limited to the drawing of lots. If that was the case, it would have to decide whether that means of selection, based not on the aptitude of the candidates concerned but on chance, was necessary to attain the objectives pursued.

In the case of Austria, it has allocated 75% of places for medicine for students with a certificate from Austrian schools while 20% are reserved for students from other EU countries and 5% for non-EU students.

Austrian newspaper Der Standard said the court's ruling suggested the Austrian decree was also not likely to be overturned on discrimination grounds.
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