Austria and Belgium given more time to justify quotas
The European Commission has decided today to extend its suspension of legal action against Austria and Belgium over their quota restrictions on the number of non-nationals permitted to enrol on degree courses for doctors, dentists, physiotherapists and vets. Today's decision means that the Commission is prolonging its current freeze on infringement proceedings, in place since 2007, for a further four years until December 2016. The suspension is conditional on both countries gathering definitive evidence on why these courses should be an exception to EU Treaty rules on free movement of citizens, which normally guarantee EU nationals with relevant entry qualifications full access to higher education in any Member State.
Androulla Vassiliou, the European Commissioner for Education, Culture, Multilingualism and Youth, welcomed the decision: "The Commission has listened carefully to the arguments put forward by Austria and Belgium and taken a balanced approach which safeguards both the freedom of movement of EU citizens and their right to a high level of healthcare. At the end of 2016 we will be able to make a more informed decision about these two specific cases and will have established a solid legal framework in line with rulings by the Court of Justice of the European Union that will allow us to address similar problems in other Member States, should they arise."
Legal proceedings for non-compliance with the Treaty rules were initiated against Austria and Belgium in 2007 after both countries introduced national quotas (details in background) following a surge in applications by foreign students for places on medical studies courses. The foreigners mainly came from neighbouring countries using the same language - German students in the case of Austria, and French coming to Belgium.
While the legislation establishing the quotas constituted a clear breach of the principle of free movement of EU citizens, the European Commission recognised that such substantial inflows could potentially result in later shortages of qualified professionals in the public health sector. The Commission therefore suspended its infringement proceedings in order to allow the two Member States to gather evidence on whether the sustainability of their healthcare systems was under threat.
Over the past five years, Austria and Belgium have established monitoring systems and conducted studies to forecast the likely supply and demand for medical personnel. However, they pointed out that, for various reasons, it was impossible for them to reach a definitive conclusion on whether the threat to their healthcare systems was sufficient to justify an exception to the principle of free movement. The main reason cited was that the monitoring period did not correspond to the study and training period required for medical personnel as well as the difficulty in estimating with sufficient precision the likely impact of other factors such as workers' mobility, technological developments, changing needs of the population and reforms in the medical sector.
In the meantime, the Court of Justice of the European Union also issued an important ruling in this matter (see below), clarifying that strict evidence-based requirements must be satisfied before restrictions to the freedom of movement of EU citizens can be allowed for the sake of protecting the sustainability of healthcare systems.
The additional four-year suspension of infringement action by the Commission will allow Austria and Belgium to improve the evidence base and to explore policy options which would reduce possible shortages of qualified personnel. The results of these monitoring exercises and reviews will be factored into a strengthened monitoring programme to forecast the countries' medical needs. The suspension is conditional on Austria and Belgium carrying out the agreed monitoring.
Commissioner Vassiliou will send a letter to the competent authorities in both countries detailing the Commission's decision.
In its 'Bressol' judgement of 13 April 2010, concerning a French student's complaint against the quotas in Belgium, the Court of Justice underlined the fundamental importance of free movement for students and made it clear that, in that case, financial arguments could not be used to justify restrictions. But the Court accepted that the need to protect the quality of public health may, under certain very strict conditions, justify limitations to the fundamental right of free movement. The ruling stated that a genuine risk to public health must be verified with solid, coherent data. Such a risk could take the form of a lower quality of training or of a future shortage of medical professionals. But the possibility of recruiting medical staff from other Member States must also be taken into account.
If the risk is proven, national authorities need to show that any measure taken to address the risk is not only necessary but that it will actually reduce the risk in practice; in particular the authorities would need to prove that any measures to reduce the number of incoming students will actually lead to an increase in the number of medical staff available in the country. Finally, national authorities must show that they could not have taken less restrictive measures, such as incentives to attract medical staff from other Member States or to encourage foreign students to stay on after their studies.
Austria and Belgium have agreed with the Commission that, in implementing the Court's ruling, they will now update and upgrade their monitoring systems. They will provide the Commission with data and well-founded projections on the career choices made by graduates in the fields concerned as to their country of employment and as to the actual flows in and out of the two countries of already qualified professionals. At the end of 2016, there should be sufficient data covering several cohorts of graduates and enough information on future trends affecting the number of qualified professionals in the areas concerned to make an informed decision on whether the strict conditions for the public health exception have been met. If they have not, the normal freedom of movement rules will apply.
The quota restrictions in Austria reserve 75% of places in medicine and dentistry schools to the holders of Austrian school-leaving certificates. In Belgium, 70% of the places in the schools for vets and physiotherapists must be reserved for students resident in Belgium (restrictions affecting six other healthcare qualifications were lifted in 2011 following a ruling of the Belgian Constitutional Court).
In both cases, nationals of the two countries are far more likely to fulfil such conditions than other EU citizens. This constitutes indirect discrimination, in breach of EU law, unless it can be proven that the conditions are necessary to attain a legitimate aim and are proportionate.
More recent restrictions have been introduced in Belgium in the fields of general medicine and dentistry and are currently being examined by the European Commission on the basis of these principles.