EuGH, Rs. 152/82 v. 13.7.1983 - Forcheri (english)


EuGH, Urteil v. 13.7.1983, Rs. 152/82, Slg. 1983, 2323 - Sandor Forcheri und Marisa Marino / Belgischer Staat und A.S.B.L. Superieur de Sciences Humaines Appliques - Ecole Ouvriere Superieure


EWG-Vertrag, Art. 128, Art. 7

Summary

1 . IT FOLLOWS FROM DECISION NO 63/266 , ADOPTED ON THE BASIS OF ARTICLE 128 OF THE TREATY AND LAYING DOWN GENERAL PRINCIPLES FOR IMPLEMENTING A COMMON VOCATIONAL TRAINING POLICY , THAT ALTHOUGH EDUCATIONAL AND VOCATIONAL TRAINING POLICY IS NOT AS SUCH PART OF THE AREAS WHICH THE TREATY HAS ALLOTTED TO THE COMPETENCE OF THE COMMUNITY INSTITUTIONS , THE OPPORTUNITY FOR SUCH KINDS OF INSTRUCTION FALLS WITHIN THE SCOPE OF THE TREATY .

2.IF A MEMBER STATE ORGANIZES EDUCATIONAL COURSES RELATING IN PARTICULAR TO VOCATIONAL TRAINING , TO REQUIRE OF A NATIONAL OF ANOTHER MEMBER STATE LAWFULLY ESTABLISHED IN THE FIRST MEMBER STATE AN ADDITIONAL ENROLMENT FEE WHICH IS NOT REQUIRED OF ITS OWN NATIONALS IN ORDER TO TAKE PART IN SUCH COURSES CONSTITUTES DISCRIMINATION BY REASON OF NATIONALITY , WHICH IS PROHIBITED BY ARTICLE 7 OF THE TREATY .

3.ALTHOUGH UNDER THE SECOND PARAGRAPH OF ARTICLE 13 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES AN OFFICIAL OF THE COMMUNITIES , WHO IS BOUND NORMALLY TO RESIDE IN THE PLACE IN WHICH HE IS EMPLOYED , IS EXEMPT FROM NATIONAL TAXES ON SALARIES , WAGES AND EMOLUMENTS PAID BY THE COMMUNITIES , HE IS LIABLE ON THE OTHER HAND , UNDER THE FIRST PARAGRAPH OF THE SAME ARTICLE , TO A TAX FOR THE BENEFIT OF THE COMMUNITIES ON SALARIES , WAGES AND EMOLUMENTS FROM WHICH THE HOST MEMBER STATE , AS A MEMBER OF THE COMMUNITIES , BENEFITS INDIRECTLY . THE FACT THAT HE DOES NOT PAY A TAX ON HIS SALARY TO THE NATIONAL TREASURY IS THEREFORE NOT A VALID REASON FOR DIFFERENTIATING THE CASE OF THE OFFICIAL AND HIS FAMILY FROM THAT OF THE MIGRANT WORKER WHOSE INCOME IS LIABLE TO TAXATION BY THE STATE IN WHICH HE RESIDES .

Parties

IN CASE 152/82

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE JUGE DE PAIX ( CANTONAL COURT ) OF THE FOURTH CANTON OF BRUSSELS FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

SANDRO FORCHERI AND HIS WIFE MARISA FORCHERI , NEE MARINO , RESIDING IN LINKEBEEK ,

AND

THE BELGIAN STATE , REPRESENTED BY THE MINISTER OF NATIONAL EDUCATION AND FRENCH CULTURE ,

AND

ASBL INSTITUT SUPERIEUR DE SCIENCES HUMAINES APPLIQUEES - ECOLE OUVRIERE SUPERIEURE ( HIGHER INSTITUTE OF APPLIED SOCIAL SCIENCES - HIGHER SCHOOL OF LABOUR STUDIES ), ANDERLECHT ,

SUBJECT OF THE CASE:

ON THE INTERPRETATION OF ARTICLES 7 AND 48 OF THE TREATY , REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) AND ARTICLES 12 AND 13 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES ,

GROUNDS OF THE JUDGEMENT:

1 BY A JUDGMENT OF 11 DECEMBER 1981 , RECEIVED AT THE COURT ON 14 MAY 1982 , THE JUGE DE PAIX ( CANTONAL COURT ) OF THE FOURTH CANTON OF BRUSSELS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLES 7 AND 48 OF THE TREATY , REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) AND ARTICLES 12 AND 13 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES .

2 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS RELATING TO AN ADDITIONAL ENROLMENT FEE DESCRIBED AS ' ' FEE FOR FOREIGN STUDENTS ' ' REQUIRED AT THE BEGINNING OF THE 1979 AND 1980 ACADEMIC YEARS FROM THE ITALIAN WIFE OF AN OFFICIAL OF THE COMMISSION , ALSO OF ITALIAN NATIONALITY , WORKING IN BRUSSELS .

3 THE SAID FEE HAS IN PRINCIPLE BEEN REQUIRED IN BELGIUM SINCE THE 1976 ACADEMIC YEAR FROM ALL STUDENTS NOT OF BELGIAN NATIONALITY AND WHOSE PARENTS ARE NOT RESIDENT IN BELGIUM . IN NON-UNIVERSITY FURTHER EDUCATION , WHICH INCLUDES THE INSTITUT SUPERIEUR DE SCIENCES HUMAINES APPLIQUEES IN WHICH MRS FORCHERI ENROLLED , A CIRCULAR FROM THE MINISTER FOR NATIONAL EDUCATION OF 8 JUNE 1978 IN FORCE AT THE TIME OF THE ENROLMENT IN ISSUE IN THE MAIN PROCEEDINGS , STATED THAT THE FEE FOR FOREIGN STUDENTS WAS NOT REQUIRED IN PARTICULAR FROM STUDENTS WHOSE PARENTS WERE FOREIGN OFFICIALS WORKING IN BELGIUM WITH THE EUROPEAN COMMUNITIES OR WHOSE SPOUSE WAS RESIDENT IN BELGIUM , WAS IN PAID EMPLOYMENT THERE AND PAID TAXES TO THE BELGIAN TREASURY . IT MUST HOWEVER BE OBSERVED THAT FOR THE 1981/82 ACADEMIC YEAR A CIRCULAR OF 12 MAY 1981 ACCORDS THE SPOUSE , AND NO LONGER ONLY THE CHILDREN , OF AN OFFICIAL OF THE COMMUNITIES RESIDENT IN BELGIUM THE SAME TREATMENT AS STUDENTS OF BELGIAN NATIONALITY .

4 UPON A REQUEST FOR AN EXPLANATION FROM THE MINISTER FOR NATIONAL EDUCATION MRS FORCHERI ' S HUSBAND RECEIVED AN ANSWER BY LETTER DATED 7 MAY 1980 TO THE EFFECT THAT MRS FORCHERI COULD NOT ' ' ENJOY EXEMPTION FROM THE FEE FOR FOREIGN STUDENTS AS THE WIFE OF AN OFFICIAL OF THE EUROPEAN COMMUNITIES SINCE THAT PRIVILEGE WAS GRANTED ONLY IN CASES WHERE THE STUDENT ' S SPOUSE WAS IN PAID EMPLOYMENT AND PAID TAXES TO THE BELGIAN TREASURY WHICH IS NOT THE CASE FOR OFFICIALS OF THE EUROPEAN COMMUNITIES ' ' .

5 THE PLAINTIFFS IN THE MAIN ACTION BROUGHT THE MATTER BEFORE THE JUGE DE PAIX OF THE FOURTH CANTON OF BRUSSELS WHO TOOK THE VIEW THAT THE CASE INVOLVED PROBLEMS OF THE INTERPRETATION OF COMMUNITY LAW AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

1 . IN VIEW IN PARTICULAR OF THE PRINCIPLE OF NON-DISCRIMINATION BETWEEN NATIONALS OF MEMBER STATES OF THE EUROPEAN COMMUNITY , A PRINCIPLE EMBODIES INTER ALIA IN ARTICLE 7 OF THE EEC TREATY AND , IN THE CONTEXT OF FREEDOM OF MOVEMENT FOR WORKERS , IN ARTICLES 48 AND 49 OF THE EEC TREATY , OF ARTICLE 12 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY , AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 312/76 OF 9 FEBRUARY 1976 , AND OF ARTICLE 12 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES , IS IT LAWFUL UNDER COMMUNITY LAW FOR STUDENTS WHO ARE SPOUSES OF OFFICIALS OF THE EUROPEAN COMMUNITIES , ARE NATIONALS OF A MEMBER STATE AND RESIDE IN BELGIUM BECAUSE THEIR SPOUSES MUST RESIDE THERE BY REASON OF THEIR EMPLOYMENT BY ONE OF THE INSTITUTIONS OF THE EUROPEAN COMMUNITIES TO BE REQUIRED IN BELGIUM TO PAY THE ENROLMENT FEE FOR FOREIGN STUDENTS , WHEN BELGIAN AND LUXEMBOURG STUDENTS ARE NOT SUBJECT TO THAT REQUIREMENT?

2 . DOES NOT THE REFUSAL TO GRANT AN EXEMPTION FROM THE ENROLMENT FEE FOR FOREIGN STUDENTS TO THE ABOVE-MENTIONED STUDENTS ON THE GROUND THAT THEIR SPOUSES ARE OFFICIALS OF THE EUROPEAN COMMUNITIES AND DO NOT PAY TAXES TO THE BELGIAN TREASURY CONSTITUTE AN INFRINGEMENT OF THE SECOND PARAGRAPH OF ARTICLE 13 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES?

6 THOSE QUESTIONS ARE INTENDED TO ALLOW THE NATIONAL COURT TO DETERMINE THE COMPATIBILITY WITH COMMUNITY LAW OF A NATIONAL PROVISION SUBJECTING THE SPOUSE OF AN OFFICIAL OF THE EUROPEAN COMMUNITIES RESIDENT IN A MEMBER STATE WHERE HE PERFORMS HIS DUTIES TO THE PAYMENT OF AN ENROLMENT FEE FOR TAKING PART IN A COURSE OF FURTHER EDUCATION WHEN SUCH A FEE IS NOT REQUIRED FROM A NATIONAL OF THAT STATE OR THE SPOUSE OF SUCH A PERSON .

7 IT MUST BE REMEMBERED FIRST OF ALL THAT ARTICLE 7 OF THE TREATY PROHIBITS WITHIN THE SCOPE OF APPLICATION OF THE TREATY , AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY .

8 IT IS NOT DENIED IN THIS CASE THAT THE BELGIAN RULES LAY DOWN IN CONNECTION WITH THIS MATTER DIFFERENT TREATMENT FOR BELGIAN NATIONALS AND THE NATIONALS OF OTHER MEMBER STATES . THE NATIONAL COURT IS THEREFORE ASKING WHETHER IN THE CASE OF THE SPOUSE OF AN OFFICIAL OF THE COMMUNITY WHO IS NOT OF BELGIAN OR LUXEMBOURG NATIONALITY THE PAYMENT OF THE ENROLMENT FEE FALLS ' ' WITHIN THE SCOPE OF APPLICATION ' ' OF THE TREATY AND IF SO WHETHER THE FACT THAT OFFICIALS OF THE COMMUNITY WORKING IN BELGIUM ARE EXEMPT FROM PAYMENT OF TAXES TO THE BELGIAN STATE MAY BE RELEVANT IN THAT RESPECT .

9 IN ANSWER TO THAT QUESTION IT MUST BE OBSERVED THAT THE LEGAL POSITION OF OFFICIALS OF THE COMMUNITY IN THE MEMBER STATES IN WHICH THEY ARE EMPLOYED COMES WITHIN THE SCOPE OF THE TREATY ON A DUAL BASIS BY REASON OF THEIR POST WITH THE COMMUNITY AND BECAUSE THEY MUST ENJOY ALL THE BENEFITS FLOWING FROM COMMUNITY LAW FOR THE NATIONALS OF MEMBER STATES IN RELATION TO FREEDOM OF MOVEMENT , FREEDOM OF ESTABLISHMENT AND SOCIAL SECURITY .

10 ARTICLE 48 OF THE TREATY PROVIDES THAT FREEDOM OF MOVEMENT FOR WORKERS SHALL BE SECURED WITHIN THE COMMUNITY BY THE END OF THE TRANSITIONAL PERIOD AT THE LATEST . IT ENTAILS THE ABOLITION OF ANY DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS OF THE MEMBER STATES AS REGARDS EMPLOYMENT , REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT .

11 ACCORDING TO BOTH THE LEGISLATIVE PRACTICE OF THE COMMUNITY AND THE ESTABLISHED CASE-LAW OF THE COURT THE RIGHT TO FREE MOVEMENT MUST NOT BE INTERPRETED NARROWLY . AS THE RECITALS IN THE PREAMBLE TO REGULATION NO 1612/68 OF THE COUNCIL STATE , IT CONSTITUTES A FUNDAMENTAL RIGHT OF WORKERS AND THEIR FAMILIES SINCE MOBILITY OF LABOUR WITHIN THE COMMUNITY MUST BE ONE OF THE MEANS BY WHICH THE WORKER IS GUARANTEED THE POSSIBILITY OF IMPROVING HIS LIVING AND WORKING CONDITIONS AND PROMOTING HIS SOCIAL ADVANCEMENT .

12 ACCORDING TO THE FIFTH RECITAL IN THE PREAMBLE TO THE SAME REGULATION THE RIGHT OF FREEDOM OF MOVEMENT , IN ORDER THAT IT MAY BE EXERCISED , BY OBJECTIVE STANDARDS , IN FREEDOM AND DIGNITY , REQUIRES THAT EQUALITY OF TREATMENT SHALL BE ENSURED IN FACT AND IN LAW IN RESPECT OF ALL MATTERS RELATING TO THE ACTUAL PURSUIT OF ACTIVITIES AS EMPLOYED PERSONS AND TO ELIGIBILITY FOR HOUSING , AND ALSO THAT OBSTACLES TO THE MOBILITY OF WORKERS SHALL BE ELIMINATED , IN PARTICULAR AS REGARDS THE WORKER ' S RIGHT TO BE JOINED BY HIS FAMILY AND THE CONDITIONS FOR THE INTEGRATION OF THAT FAMILY INTO THE HOST COUNTRY .

13 THE QUESTION THEREFORE ARISES WHETHER ACCESS TO EDUCATIONAL COURSES , IN PARTICULAR THOSE CONCERNING VOCATIONAL TRAINING , FALLS WITHIN THE SCOPE OF APPLICATION OF THE TREATY .

14 ARTICLE 128 OF THE TREATY PROVIDES THAT THE COUNCIL SHALL , ACTING ON A PROPOSAL FROM THE COMMISSION AND AFTER CONSULTING THE ECONOMIC AND SOCIAL COMMITTEE , LAY DOWN GENERAL PRINCIPLES FOR IMPLEMENTING A COMMON VOCATIONAL TRAINING POLICY CAPABLE OF CONTRIBUTING TO THE HARMONIOUS DEVELOPMENT BOTH OF THE NATIONAL ECONOMIES AND OF THE COMMON MARKET .

15 IN APPLICATION OF THAT PROVISION THE COUNCIL OF THE EEC ADOPTED DECISION NO 63/266 OF 2 APRIL 1963 LAYING DOWN GENERAL PRINCIPLES FOR IMPLEMENTING A COMMON VOCATIONAL TRAINING POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963/64 P . 25 ). THE RECITALS TO THAT DECISION STATE , INTER ALIA , THAT IMPLEMENTATION OF AN EFFECTIVE COMMON VOCATIONAL TRAINING POLICY WILL HELP TO BRING ABOUT FREEDOM OF MOVEMENT FOR WORKERS AND THAT EVERY PERSON SHOULD , DURING THE DIFFERENT STAGES OF HIS WORKING LIFE , BE ABLE TO RECEIVE ADEQUATE BASIC AND ADVANCED TRAINING , AND ANY NECESSARY VOCATIONAL RE-TRAINING .

16 ACCORDING TO THE SECOND PRINCIPLE STATED IN THE DECISION , THE COMMON VOCATIONAL TRAINING POLICY MUST HAVE CERTAIN FUNDAMENTAL OBJECTIVES WHICH ARE INTER ALIA , TO BRING ABOUT CONDITIONS WHICH WILL GUARANTEE ADEQUATE VOCATIONAL TRAINING FOR ALL AND TO OFFER TO EVERY PERSON , ACCORDING TO HIS INCLINATIONS AND CAPABILITIES , WORKING KNOWLEDGE AND EXPERIENCE , THE OPPORTUNITY TO GAIN PROMOTION OR TO RECEIVE INSTRUCTION FOR A NEW AND HIGHER LEVEL OF ACTIVITY .

17 IT FOLLOWS THAT ALTHOUGH IT IS TRUE THAT EDUCATIONAL AND VOCATIONAL TRAINING POLICY IS NOT AS SUCH PART OF THE AREAS WHICH THE TREATY HAS ALLOTTED TO THE COMPETENCE OF THE COMMUNITY INSTITUTIONS , THE OPPORTUNITY FOR SUCH KINDS OF INSTRUCTION FALLS WITHIN THE SCOPE OF THE TREATY .

18 CONSEQUENTLY IF A MEMBER STATE ORGANIZES EDUCATIONAL COURSES RELATING IN PARTICULAR TO VOCATIONAL TRAINING , TO REQUIRE OF A NATIONAL OF ANOTHER MEMBER STATE LAWFULLY ESTABLISHED IN THE FIRST MEMBER STATE AN ENROLMENT FEE WHICH IS NOT REQUIRED OF ITS OWN NATIONALS IN ORDER TO TAKE PART IN SUCH COURSES CONSTITUTES DISCRIMINATION BY REASON OF NATIONALITY , WHICH IS PROHIBITED BY ARTICLE 7 OF THE TREATY .

19 AS REGARDS THE SPECIAL POSITION OF AN OFFICIAL OF THE COMMUNITIES AND HIS FAMILY IT MUST BE REMEMBERED THAT THE OFFICIAL IS BOUND BY ARTICLE 20 OF THE STAFF REGULATIONS NORMALLY TO RESIDE IN THE PLACE IN WHICH HE IS EMPLOYED . MOREOVER , ALTHOUGH UNDER THE SECOND PARAGRAPH OF ARTICLE 13 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES HE IS EXEMPT FROM NATIONAL TAXES ON SALARIES , WAGES AND EMOLUMENTS PAID BY THE COMMUNITIES , HE IS LIABLE ON THE OTHER HAND , UNDER THE FIRST PARAGRAPH OF THE SAME ARTICLE , TO A TAX FOR THE BENEFIT OF THE COMMUNITIES ON SALARIES , WAGES AND EMOLUMENTS FROM WHICH THE HOST MEMBER STATE , AS A MEMBER OF THE COMMUNITIES , BENEFITS INDIRECTLY . THE FACT THAT HE DOES NOT PAY A TAX ON HIS SALARY TO THE NATIONAL TREASURY IS THEREFORE NOT A VALID REASON FOR DIFFERENTIATING THE CASE OF THE OFFICIAL AND HIS FAMILY FROM THAT OF THE MIGRANT WORKER WHOSE INCOME IS LIABLE TO TAXATION BY THE STATE IN WHICH HE RESIDES .

COSTS

20 THE COSTS INCURRED BY THE GOVERNMENTS OF THE ITALIAN REPUBLIC AND THE UNITED KINGDOM AND BY THE COMMISSION , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

OPERATIVE PART OF THE JUDGEMENT

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE JUGE DE PAIX OF THE FOURTH CANTON OF BRUSSELS BY JUDGMENT OF 11 DECEMBER 1981 , HEREBY RULES :

IF A MEMBER STATE ORGANIZES EDUCATIONAL COURSES RELATING IN PARTICULAR TO VOCATIONAL TRAINING , TO REQUIRE OF A NATIONAL OF ANOTHER MEMBER STATE LAWFULLY ESTABLISHED IN THE FIRST MEMBER STATE AN ENROLMENT FEE WHICH IS NOT REQUIRED OF ITS OWN NATIONALS IN ORDER TO TAKE PART IN SUCH COURSES CONSTITUTES DISCRIMINATION BY REASON OF NATIONALITY , WHICH IS PROHIBITED BY ARTICLE 7 OF THE TREATY