22nd Jun 2021

EU member states fear scholarship tourism

  • The ruling will have implications for the EU member states' grant systems for education (Photo: European Commission)

As more and more young Europeans study in member states other than their own, this has serious implications for how governments manage their social assistance for students.

Next month, in a keenly awaited opinion, the European Court of Justice, will give a preliminary answer to a key question: To what extent do foreign students have the right to be treated equally to national students.

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The answer - the Advocate General's opinion is generally followed in the final judgement by the court - is set to a large extent to determine whether member states can continue with generous educational grants and whether they can prevent what is known as scholarship tourism.

The particular case concerns a German student Jaqueline Foerster who went to study in the Netherlands in 2000.

Ms Foerster did the minimum number of hours of work in order to be eligible for a Dutch grant - one of the criteria in the Netherlands is that foreign students need to work. But the Dutch scholarship board, which initially granted the student aid to her, in 2005 demanded a partial refund because Ms Foerster had not worked in the second half of 2003.

The German student took the case to court saying the move was discriminatory as Dutch students do not have to work. The court's opinion is due on 10 July and has member states worrying about whether they will be able to protect their expensive grant schemes from foreign students.

In a sign of the interest in the case, a court hearing was attended by the German, British, Belgian, Swedish and Finnish governments.

An EU official noted that at the hearing the court appeared to be "conscious of the implications of a wide-ranging ruling that would set a precedent."

He added that it was felt at the hearing that the court would try and issue a judgement that was "specific" to the case bearing in mind the "large financial implications" for member states.

Not the first case

This is not the first case in this area but has arisen from a European court judgement of 2005 on a similar question.

The 2005 case concerned French student Dany Bidar studying in the UK who had gone to court because he was refused a normal UK student scholarship.

The court found in his favour that students who "have demonstrated a certain degree of integration into the society of that State" should have the same rights as national students.

Member states took this judgement to mean that foreign students should have lived in a country for five years to be entitled to the same treatment as national students.

The Foerster case opens the same questions about the extent to which nationals can be favoured over foreigners because the Dutch government is arguing that it had a right to set the minimum work criteria because the effects of the Bidar case had not yet come into force.

EU education law and tensions elsewhere

Brussels has few specific rights in the area of education under EU law. Article 149 of the treaty states that the EU action "shall contribute to the development of quality education by encouraging cooperation between Member States."

But although education large remains a – jealously guarded – domain of member states, the court has potentially large scope. It is using both the anti-discrimination article in the treaty, which prevents, among other things, discrimination on the grounds of nationality and is upholding the rights of every EU citizen to freedom of movement within the bloc.

In another case involving education between Germany and Austria, the court ruled that Austria was breaching EU law by setting restrictions on foreigners wanting to study medicine and dentistry in the country. The limit was targeted at German students who came in droves to Austria to study at its medical schools but returned to Germany afterwards to practise.

Similar tensions can be seen in Belgium concerning French students. The French-speaking part of the country in 2006 adopted quotas for nine separate areas, including medicine and veterinary studies fearing, like Austria, that its public health system would otherwise be undermined.

For the moment, Brussels has taken a wait and see attitude. Last year it granted both countries five years to accumulate data so they can justify whether the restrictive steps they took were "necessary" and "proportionate."

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