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Protecting Human Rights in the EU pp 145–159Cite as

Free Movement of Students in the EU

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Abstract

The aim of the article is to show how free movement rights have been developed and elaborated in the European Union. One of the important aspects is to analyse the role of education in the EU and the powers of the EU in that sector to see whether rights guaranteed by the EU can be utilised to protect and guarantee education-related movement. Education is also the area that Member States have wanted to exclude from harmonisation. The article looks at a very narrow set of issues related to free movement of students and their rights from a human rights perspective. First, different categories of EU citizens are described and compared vis-à-vis their rights as migrants in another EU Member State. Second, students as a special category are distinguished and issues of both access to education and access to social benefits are covered. The paper also looked at possibilities to create human-rights-based arguments for migrants to receive rights in another Member State, but it was concluded that this basis is rather weak. Also, a special circumstance of linguistic discrimination is analysed as a potential barrier for free movement of students, concluding that the picture is not so clear and further guidance from the CJEU would be advisable.

This article is based on Master Thesis by the author defended in 2012 at Tallinn University of Technology.

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Notes

  1. 1.

    Barnard (2010), pp. 3–30.

  2. 2.

    Ibid., p. 224.

  3. 3.

    Ibid., p. 224.

  4. 4.

    Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, Official Journal L 158, 30.4.2004, pp. 77–123.

  5. 5.

    Tryfonidou (2009), pp. 1616–1617.

  6. 6.

    Davies (2005), pp. 43–56.

  7. 7.

    Jacobs (2007), p. 593.

  8. 8.

    Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, Official Journal L 141-1, 27.05.2011, pp. 1–12.

  9. 9.

    Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, Official Journal L 257, 19.10.1968, pp. 2–12.

  10. 10.

    Known as the concept of reverse discrimination. See Barnard (2010), pp. 230–232.

  11. 11.

    Strumia (2005–2006), pp. 727–736.

  12. 12.

    Orr et al.

  13. 13.

    Case 53/81, D.M. Levin v Staatssecretaris van Justitie, [1982] ECR 1035.

  14. 14.

    See, for example, De Witte (1989), p. 77.

  15. 15.

    Resolution of the Council and of the Ministers for education meeting within the Council of 9/2/76 comprising an action programme in the field of education, OJ C 38 of 19 February 1976.

  16. 16.

    Gori (2001), p. 20.

  17. 17.

    With the single exception of Directive 77/486 on the education of children of migrant workers.

  18. 18.

    Gori (2001), p. 21.

  19. 19.

    Ibid., pp. 55–71.

  20. 20.

    Ibid., p. 63.

  21. 21.

    The current wording of Article 165 TFEU is as follows: “1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.

    The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.

    2. Union action shall be aimed at:

    — developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,

    — encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,

    — promoting cooperation between educational establishments,

    — developing exchanges of information and experience on issues common to the education systems of the Member States,

    — encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe,

    — encouraging the development of distance education,

    — developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.

    3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.

    4. In order to contribute to the achievement of the objectives referred to in this Article:

    — the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,

    — the Council, on a proposal from the Commission, shall adopt recommendations.”

  22. 22.

    For a complete overview, see Käsper and Kerikmäe (2012), pp. 399–413.

  23. 23.

    Article 2 of Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of 20 March 1952, available on the Internet at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf, last accessed 12 May 2012.

  24. 24.

    Application no 7671/76 and 14 other applications, Decision of the Commission of the Convention on the Admissibility of the Applications, 15 Foreign Students vs The United Kingdom, 19 May 1977, available on the Internet at http://cmiskp.echr.coe.int/tkp197/view.asp?action=open&documentId=804246&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649, last accessed 12 May 2012.

  25. 25.

    Gori (2001), p. 371.

  26. 26.

    Ibid., p. 376.

  27. 27.

    Charter of Fundamental Rights of the European Union, Official Journal C 83, 30.3.2010, pp. 398–403.

  28. 28.

    Commission Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2011—Accompanying document to the Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—2011 Report on the Application of the EU Charter of Fundamental Rights, SWD(2012) 84 final, available on the Internet at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2012:0084:FIN:EN:PDF, last accessed 12 May 2012.

  29. 29.

    Article 21 of the Charter of Fundamental Rights.

  30. 30.

    Charter of Fundamental Rights.

  31. 31.

    Ibid.

  32. 32.

    See Huisman and van der Wende (2004), p. 355 for a brief discussion on the issues related to impact of the greater acceptance of English as the lingua franca of higher education and its impact to different countries.

  33. 33.

    Van der Mei (2005), p. 239.

  34. 34.

    Case C-379/87, Anita Groener v Minister for Education and the City of Dublin Vocational Educational Committee, [1989] ECR 3967.

  35. 35.

    Ibid., para. 19.

  36. 36.

    Ibid., para. 19.

  37. 37.

    Ibid., para. 20.

  38. 38.

    Creech (2005), p. 103.

  39. 39.

    Garben (2011), pp. 101–102.

  40. 40.

    See Creech (2005), p. 104 ff.

  41. 41.

    Case 249/81, Commission of the European Communities v Ireland, [1982] ECR 4005.

  42. 42.

    Creech (2005), p. 107.

  43. 43.

    See the discussion in Creech (2005), pp. 107–109. See also the detailed analysis of the French Toubon law in Feld (1998), pp. 153–202.

  44. 44.

    Gori (2001), p. 369.

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Author information

Authors and Affiliations

  1. Tallinn Law School, Akadeemia tee 3, 12618, Tallinn, Estonia

    Kari Käsper

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  1. Kari Käsper
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Correspondence to Kari Käsper .

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  1. Tallinn Law School, Tallinn University of Technology, Tallinn, Estonia

    Tanel Kerikmäe

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Käsper, K. (2014). Free Movement of Students in the EU. In: Kerikmäe, T. (eds) Protecting Human Rights in the EU. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-38902-3_9

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