Opinion of Advocate General Gulmann

Mr President,

Members of the Court,

1. In this case the Commission is claiming, pursuant to Article 169 of the EEC Treaty, that Belgium has failed to comply with its obligations under Articles 5 and 7 of the Treaty, first, by continuing in some instances to levy a special supplementary enrolment fee, the minervai, on nationals of other EC countries following university studies for vocational training purposes, second, by restricting the access of such students to such studies in Belgium and, third, by restricting the possibility for students to obtain a refund of minervals that have been unduly paid.

2. Those issues are ones that the Court has had occasion to consider before.

3. I would observe at the outset that:

The first complaint

4. The Commission claims that Belgium has failed to comply with its obligations under the Treaty by failing, in Article 16(1) of the Law of 21 June 1985 on education, to exempt from payment of the minervai étudiants étrangers (supplementary enrolment fee for foreign students) nationals of other Member States who come to Belgium for the sole purpose of studying in a Belgian university institution.

5. The minervai was introduced by a 1976 amendment to the Law governing universities and their financing of 27 July 1971. Under Article 27 it was basically to be paid by all university students, other than those of Belgian or Luxembourg nationality, unless they had special links to Belgium.

6. The Commission claims that Belgium is under a general obligation to refrain from levying the special enrolment fee on students from other Member States who are undergoing vocational training at Belgian universities when such charges are not required of Belgian students and that the legal position in Belgium (as far as concerns the French Community), despite the amendments adopted in 1985 and 1987, is still not wholly in accordance with that obligation.

7. The Belgian Government does not dispute that that legal situation still obtains in the French Community and that the situation described by the Commission does not comply with the Treaty requirement of equal treatment of Belgian students and students from other Member States in this field.

The second complaint

8. The Commission claims that Belgium has failed to comply with its Treaty obligations by conferring, in Article 16(2) of the said 1985 Law, on the rectors of university institutions the right to refuse to register students from other Member States who wish to register at Belgian universities for vocational training.

9. The Commission claims that that provision gives rectors a right to refuse students from other Member States which they do not have as regards Belgian students. They are entitled to refuse not only students who will not pay the special enrolment fee but also students who agree to pay that fee in so far as the rectors' refusal may be based on the ground that those students do not fall within the special 2% category of foreign students in respect of whom universities are, under Article 27 of the 1971 Law, entitled to State funding. The Commission points out that in its judgment in Case 42/87 the Court upheld the Commission's claim that a corresponding rule applying in the field of non-university education was incompatible with Belgium's obligations under the Treaty.

10. The Belgian Government does not dispute that that rule still applies in the French Community and that it is incompatible with the Treaty.

The third complaint

11. The Commission claims that Belgium has failed to fulfil its obligations under the Treaty by restricting in an ad hoc manner the possibilities of obtaining reimbursement of minervals unduly paid under Community law only to Community nationals who commenced legal proceedings before 13 February 1985 and by bringing into force the exemptions granted to workers and their spouses and to those who are merely students who are nationals of other Member States on 1 October 1983 in respect of university studies and on 1 January 1985 in respect of non-university studies, as provided by Articles 63, 69 and 71 of that Law.

12. The restriction on the right of reimbursement which still applies both in the Flemish Community and in the French Community and relates both to university studies and other further education is set out in Article 63 of the 1985 Law which provides: The enrolment fees or supplementary registration fees charged to pupils and students who are nationals of a Member State of the European Economic Community and have taken vocational training courses will be refunded on the basis of judicial decisions made in proceedings for repayment brought before the courts before 13 February 1985.

13. The following factors are relevant to an understanding of this part of the application:

14. The Commission has pointed out that:

15. At the hearing the Commission narrowed its claim on this point in the context of the following circumstances. The Commission's application included a separate complaint of alleged unequal treatment of nationals of other EC Member States who were to pursue vocational training at non-university institutions. That alleged infringement of the Treaty stemmed from the particular wording of Article 59(2) of the 1985 Law which made exemption from the enrolment fee conditional on grant of a residence permit. That head of complaint related only to the Flemish Community and even as regards that community was withdrawn in the course of the proceedings because new rules were adopted.

16. The Belgian Government does not dispute that Belgium has failed to fulfil its obligations under the Treaty in the manner described by the Commission.

Conclusion

17. I therefore propose that the Court uphold the Commission's claim that the Kingdom of Belgium has, as described in the form of order sought by the Commission, as amended, failed to fulfil its obligations under Articles 5 and 7 of the EEC Treaty and that the Kingdom of Belgium should be ordered to pay the costs.

1 Original language: Danish.

2 Case 293/83 Gravier v City of Liège [1985] ECR 593.

3 Case 24/86 Blaizot v University of Liège [1988] ECR 379.

4 Case 293/85 Commission v Belgium [1988] ECR 305.

5 Exemptions also applied to foreign students [that is, students other than those of Belgian and Luxembourg nationality] whose parents or legal guardians are domiciled or resident in Belgium and carry on or have carried on their main occupation there; students residing in Belgian territory whose parents or legal guardians are or have been employed on Belgian territory and are nationals of a Member State of the European Economic Community.

6 Case 152/82 Forcheri v Belgium [1983] ECR 2323.

7 Article 16(2) of the 1985 Law added a new paragraph 7 to Article 27 of the 1971 Law which provides: The rector of the university may, from the 1985/86 academic year, refuse to register students who arc not eligible for financing.

8 Case 42/87 Commission v Belgium [1988] ECR 5445.

9 Case 309/85 Barra v Belgium [1988] ECR 355.

10 Case 152/82 Forcheń v Belgium [1983] ECR 2323.