Crossing borders in search of education? Not for schoolchildren! (part 2)
Can Member States prohibit pupils from attending education abroad, simply on the belief that it might hamper the integration of the children into society? But what of possible justification grounds?
In part 1 this measure is addressed and counter-arguments supported by EU law are provided.
But what of possible justification grounds?
Such restrictions may only be justified if it is ‘based on objective considerations of public interest independent of the nationality of the persons concerned and if it is proportionate to a legitimate objective pursued by the provisions of national law. It follows from the case-law of the Court that a measure is proportionate if, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain that objective.’
As seen above, the UWC has near-examplary scores as to the quality of the education provided. It follows that any argument with respect to the lack of quality of education abroad must fail out at the outset.
The Schulamt has primarily invoked that the pursuit of education in Germany is crucial to ensure the integration of resident children in German society. Case law of the Court of Justice also indicates that Member States can in certain circumstances invoke the need to protect the national identity in this respect, as education is an integral part thereof.
It may however be wondered whether this is a legitimate argument in this context. After all, the Court has indicated that access to education abroad is a core element to the free movement of students within the European Union, which the EU actively seeks to promote. In that light it may be wondered whether it is legitimate for a Member State to prohibit its nationals from pursuing education abroad at all.
Alternatively, even if the aim would be accepted as legitimate, there are several reasons to consider that it still fails the test of proportionality.
First, it may be wondered whether the policy employed seeks to attain this aim in a systematic and consistent manner. The relevant Schulgesetz NRW provides in Article 34(5) that the Schulplficht may also be fulfilled in recognised/approved international schools situated within Germany. Children may attend this school without special leave to do so by the Schulamt. This is somewhat strange. Seeing as the curricula of international schools are, indeed, international, it seems the Schulamt is simply concerned with the place of establishment. Somehow following an international curriculum in Germany safeguards integration into German society whereas this is not the case if that same or similar curriculum is pursued in the Netherlands. As such the integration criterion not pursued systematically and consistently: this constitutes a breach of the principle of proportionality.
Secondly, the Court of Justice has made clear that when a Member State is to assess the degree of integration of a person, it cannot base this assessment simply on a single criterion such as, in casu, school attendance in Germany. In Martens, the Court held:
|The legislation at issue in the main proceedings, inasmuch as it constitutes a restriction on the freedom of movement and residence of a citizen of the Union, such as the appellant in the main proceedings, is also too exclusive because it does not make it possible to take account of other factors which may connect such a student to the Member State (…), such as the nationality of the student, his schooling, family, employment, language skills or the existence of other social and economic factors (see, to that effect, judgment in Prinz and Seeberger, EU:C:2013:524, paragraph 38). Likewise, as the Advocate General stated at point 103 of her Opinion, the employment of the family members on whom the student depends in the Member State providing the benefit may also be one of the factors to be taken into account in assessing those links.’|
It follows that the personal circumstances of the child must be taken into account, such as her nationality, her language abilities, the situation of her parents and other social and economic factors. The Schulamt may not simply reject an application on the stated grounds without a thorough examination of these factors. When looking at the family which had to move from Germany to the Netherlands: both the mother and the father worked in Germany, the children spoke German, and the family lived in Germany. It can hardly be doubted that the children are sufficiently integrated into German society.
There are several reasons to consider that the Schulamt’s decision and overall policy to prohibit education attendance in another Member State of the EU breaches EU law. Neither the lack of quality of education abroad nor the supposed ‘danger to the integration of the child’ can justifiably invoked to justify a restriction of free movement for education purposes. Considering the Schulamt’s strictness in this, it is likely that a procedure before a national court is necessary to change the policy in this regard. Until such time, the Schulamt should take note of the lengths parents will go, and justifiably so, for their children to receive the education they think is in their best interest. In that light, one could seriously wonder whether in the case of the family who left house, job and country integration into German society was achieved…
|Read part one of the blog 'Crossing borders in search of education? Not for schoolchildren!' written by dr. Alexander Hoogenboom|
Part two of the blog 'Crossing borders in search of education? Not for schoolchildren!' written by dr. Alexander Hoogenboom