Suchergebnisse

This article looks at the law and policy issues surrounding the practice of charging uniform fees for higher education to home students and students coming from other EU Member States. It begins with the observation that within the EU such fees are heavily subsidised by governments and therefore amount to a financial benefit (or a disguised grant) to students. In the light of this, this article suggests that restricting that subsidy to students resident prior to their studies would be not only compatible with recent case law on non-discrimination but would also fit better with the underlying logic of free movement, which denies any right to benefits for non-economic recent migrants. Secondly, it looks at the policy, and finds that while equal fees have a number of very positive social effects, they also carry moral and economic risks. A better approach, less distorting of the market for higher education and more consistent with the wider EU approach to welfare migration, might be to require exportability of subsidies from the student's state of origin.

The caselaw has found healthcare systems firmly subject to Article 49, yet education systems not so. Both are important public services, and subsidised from the public purse, but in the cases decided they were organised differently. One was provided through a market-like mechanism, the other directly from the State. It is not the social importance of the service, nor the motives or character of the provider or recipient or payer that determines when Article 49 applies. It is the nature of these parties' behaviour. As States use market behaviour ever more in public services, we may therefore expect an expansion of the application of Article 49 to welfare. Many restrictions will be found, because of the essentially national nature of welfare, but many will be justified and irremovable by the Court. In the end only legislation can create cross-border markets for welfare.