Volume 46 (2009) / Issue 5
The ECJ is the driving force behind the realization of the right of students to pursue their education in another Member State. In the article the principle of non-discrimination on grounds of nationality is further developed as regards cross border student mobility. It is argued that a Member State’s demand for payment for an education only imposed on foreign students is a discriminatory measure falling within the ambit of the EC Treaty. The Member States thus have to justify a claim for payment imposed only on foreigners. Territorial restrictions on educational benefits, as well as territorial restrictions on student grants, are also discussed from the perspective of non-discrimination. The ECJ has consistently rejected the argument that Article 49 EC is applicable to public education. The approach to publicly funded education could however benefit from taking as its point of departure the idea that public education, like health care, is an individual welfare benefit. This approach would show that educational benefits and health care benefits have some common features which make the different legal treatment of these benefits difficult to explain.
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