3.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.
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