Court of Justice 13-07-1983 ECLI:EU:C:1983:205

Observations submitted by Mr and Mrs Forcheri

The plaintiffs in the main action contend that according to Community law it is unlawful to claim in Belgium payment of the fee for foreign students, to which Belgian and Luxembourg students are not subject, from students who, like Mrs Forcheri, are the spouses of officials of the European Communities, are nationals of a Member State and live in Belgium because their spouses must live there for their work in the service of the Communities. The requirement is in breach inter alia of the principle of nondiscrimination between nationals of Member States, contained in particular in Article 7 of the Treaty and, in the sphere of free movement of workers, in Articles 48 and 49 of the Treaty and Article 12 of Regulation No 1612/68 of the Council.

According to the plaintiffs in the main action freedom of movement, which is an aspect of the principle of nondiscrimination, requires, as the preamble to the said regulation states, that obstacles to the mobility of workers should 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.” The fee for foreign students is an obstacle to the integration into Belgium of the family of a worker who is a national of a Member State of the Community and resides in Belgium. That is a fortiori the case where the fee is demanded of the spouse of an official of the Communities is bound by the terms of the Staff Regulations to live where he works or within such distance that he is not impedwho ed in carrying out his duties.

Article 12 of Regulation No 1612/68 mentions only the children of a national of a Member State but there is no doubt that the scope ratione materiae must be extended to all members of the family of a worker who are students and in particular to the spouse since the ratio legis is the integration of the family of the immigrant worker into the host country in accordance with the requirements of the basic principle of nondiscrimination between nationals of the Member States. The Court has, moreover, already given a wide interpretation to Article 12 (Cases 9/74 Casagrande [1974] ECR 773 and 32/75 Cristini [1975] ECR 1085). In addition, according to a report from the Committee on Education adopted by the Council on 27 June 1980, where enrolment fees are required in a Member State students from other countries of the Community cannot be charged more than the students from the Member State in question (cf. Official Journal C 316, 3. 12. 1980, Commission's answer to Written Question No 1248/80 from Mr Seal).

Ex abundanti cautela the plaintiffs in the main action observe that the requirement at issue also disregards the provisions of Article 12 of the Protocol on the Privileges and Immunities and that Luxembourg students are exempt from the fee for foreign students albeit discrimination between the nationals of the various Member States is unlawful under Community law.

Alternatively the plaintiffs in the main action claim that the refusal to grant exemption from the fee on the basis that Mr Forcheri as an official of the European Communities does not pay taxes to the Belgian Treasury disregards the second paragraph of Article 13 of the Protocol on the Privileges and Immunities. According to that provision officials and other servants of the Communities are exempt from national taxes on salaries, wages and emoluments paid by the Communities. Accordingly it would be a breach of that provision to deprive the spouse of a European official of a benefit simply because the official does not pay national taxes on his remuneration.

Observations submitted by the Italian Government

The Italian Government does not doubt that Article 12 of Regulation No 1612/68 must also apply to the spouse of the worker. In Case 76/72 Michel S. [1973] ECR 457 the Court held that the scope of that article extended to measures in relation to the education of the handicapped although they were not specifically referred to there, since the article did not exhaustively list all cases which might arise but must be interpreted in a broad sense and in the light of the considerations which led to the adoption of the regulation, especially the need referred to in the fifth recital to ensure conditions for the integration of the worker's family into the host country.

Even though the Community legislature may not, when drafting the regulation in question, have thought of the position of officials of the Communities, the Italian Government considers that the same principles and the same provisions in the regulation must be applied to persons working for the Communities, especially if they are Community nationals; they clearly are in paid employment in the territory of a Member State in accordance with the Community rules which as such are directly applicable in the territory of the State in question. It is moreover unacceptable that European officials should be placed in a less favourable position than that of any other employed person who is a national of a Member State. Equality of treatment, which derives directly from the general principle of Article 7 of the Treaty even independently and outside the scope of Regulation No 1612/68 is a logical and inescapable premise of the Protocol on the Privileges and Immunities which in consequence is confined (in Article 12 et seq.) to laying down certain rules regarding officials and servants of the Communities with the object of confirming their independence and mobility and governing certain special aspects of their position.

The doubt expressed in the second question put by the national court is incomprehensible. The position of the Communities in relation to the national legal systems and their system of resources makes it impossible to contemplate discrimination to the detriment of Community officials resulting directly from the fact that they are not required to contribute to national public expenses. In view of the choice between national and Community taxation and of the obligation to avoid double taxation the second was chosen in order to ensure greater independence for officials of the Communities.

Observations submitted by the Commission

As a preliminary the Commission states that on 22 September 1978 it sent the Council (Document COM(78) 468 final) a number of proposals for the elimination of obstacles to the mobility of students at university level, one of which concerned a restriction on the number of admissions. As regards the financial aspects of that question the proposal was to the effect that where fees for study were required in a Member State, fees which students from other countries of the Community were required to pay must not be higher than those applicable in the case of national students.

In its resolution of 27 June 1980 with reference to the Commission's proposal the Council introduced a reservation with regard to the principle of equality as regards the financial aspects, to the effect that in cases where measures restricting numbers or other factors cause a substantial disequilibrium in the movement of students a Member State may take appropriate measures to ensure that the effects of this disequilibrium remain limited. In the Commission's opinion that reservation must not be interpreted as justifying a measure of a general nature by which the enrolment fees in all faculties are higher for students from other Member States than for the national students. On the contrary that exception must be understood as applying only in cases where there is real disequilibrium and where the capacity of a Member State to accept students is found to be inadequate. Moreover, although the Commission does not think the Court likely to find that such a resolution has direct effect capable of creating rights for individuals, nevertheless it feels that the Court cannot allow a Member State to rely on such a resolution to escape its obligations under the Treaty or secondary law.

The Commission observes that the conditions for integration of the family into the society of the host country involve opportunities available not only for the children of the worker, as expressly stated in Article 12 of Regulation No 1612/68, but also for the spouse accompanying the worker, to acquire or perfect training in a career. The conditions for access to education available for the spouse in another Member State may easily lead the worker to forego employment in another Member State or to decide to leave such employment to return to his country of origin! They may therefore constitute an obstacle to mobility should they be discriminatory.

As regards the first question the Commission contends that the applicant is dependent on the legal position to which a Community official is entitled as regards himself and his family, which is the result primarily of the Protocol on the Privileges and Immunities. It recalls that Article 20 of the Staff Regulations provides that: “An official shall reside either in the place where he is employed or at no greater distance therefrom than is compatible with the proper performance of his duties.”

Article 12 of the Protocol on the Privileges and Immunities, which provides that: “In the territory of each Member State and whatever their nationality, officials and other servants of the Communities shall... (b) together with their spouses and dependent members of their families, not be subject to immigration restrictions or to formalities for the registration of aliens”, covers two concepts which are reechoed several times in Community law: that of the family unit and the principle of the recruitment of officials on the widest geographical basis. The question must therefore arise whether in particular the conditions for integrating an official's family into the Member State where he is required to reside are not likely to affect the freedom of the Communities to choose and recruit officials on the widest possible geographical basis and more particularly whether conditions for admission to educational facilities for members of the family of the official and which are discriminatory on the basis of nationality are not likely to restrict the number of potential candidates according to country and even to affect the stability of the staff of the Communities. Such a measure would create moreover an appreciable difference in treatment contrary to the principle of equality of treatment of officials.

As Case 208/80, Lord Bruce of Donington [1981] ECR 2205 establishes, the obligation imposed on Member States by Article 5 of the Treaty to facilitate the achievement of the Community's tasks “includes the duty not to take measures which are likely to interfere with the internal functioning of the institutions of the Community”. Further, even though educational policy is not as such within the area covered by the Treaty, the principle of nondiscrimination embodied in Article 7 of the Treaty may be applied to a measure relating thereto when the issue is the exercise of Community functions, in the present case the very running of the institutions.

As regards the second question the Commission refers in the first place to the objective of Article 13 of the Protocol which is to ensure uniform taxation of officials' salaries and to guarantee the right of the institutions to determine, -uniformly the effective amounts of salaries. The provision indeed prevents “their effective remuneration from differing according to their nationality or fiscal domicile” (Case 32/67 Van Leeuwen [1968] ECR 43). Although it is true that Community officials do not contribute to the general budget of the State in which their place of employment is situated on the same terms and to the same extent as other taxpayers of the same State the reason is that it would have seemed wrong that because of the presence of the institutions the host country should draw unjustified revenue from charging taxes on salaries paid to officials by the said institutions from contributions paid by all the Member States. That does not however mean that the officials of the Communities do not contribute to the general budget of the host State. Indirectly through the intermediary of taxes paid by the officials to the Communities and directly by their presence on the territory of that country they in fact contribute to the revenue of the State.

Moreover it is right to observe that the measure in question in the present case does not subject women of Belgian or Luxembourg nationality who are wives of officials working in Belgium to the fee for foreign students. However, their husbands contribute to the general budget of the Belgian State to the same extent as the officials whose wives are not of one of those two nationalities but who are subject to the fee; nor do those officials pay national taxes on their salaries. The Commission also recalls that notwithstanding that tax exemption the children of officials living in Belgium have been exempt from the fee for foreign students since the measure was brought in. Those considerations in the Commission's view allows it to be said that the argument based on the tax exemption laid down in Article 13 does not apply uniformly to all situations. Above all they lead to a conclusion that there is discrimination on the basis of nationality.