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Would Charging Continental Students Higher Tuition than British Students at British Institutions of Higher Education Be a Violation of European Union Law? INTRODUCTION It has long been assumed that European Union law precludes institutions of higher education within its jurisdiction from discriminating between national students and foreign European Union (EU) students regarding tuition.1 Consequently, students who are citizens of the EU are currently able to study at any institution of higher education within the EU without having to pay the high international student fees that non-EU citizens studying in the EU have to pay.2 As Davies notes, positive corollaries of the aforementioned fact are that (i) study abroad is both a possible and an attractive option for many EU students and (ii) institutions of higher education within the EU are a lot more diverse than they were in the past.3As Davies also noted, however, the supposed inability of EU institutions of higher education to charge foreign EU nationals higher tuition has at least one very significant consequence: the cost of attending an institution of higher education in the EU for EU students is highly subsidized by Member State governments, respectively, so, should enough nationals from other Member States decide to study in a particular Member State, that latters education budget will quickly become inadequate, leading to higher tuition for everybody.4 The United Kingdom is particularly affected by the aforementioned supposed inability to charge foreign EU nationals higher tuition than home students.5 This is because British institutions of higher education attract a prodigious amount of students from other Member States each year. During the 2011/12 academic year, for example, 132,550 students from other
1

Gareth Davies, Higher Education, Equal Access, and Residence Conditions: Does EU Law Allow Member States to Charge Higher Fees to Students Not Previously Resident?, 12 MAASTRICHT J. EUR. & COMP. L. 227, 227 (2005). 2 Id. 3 Id. 4 Id. at 278. 5 Home students are students who are citizens of the country in which they attend university.

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Member States studied there.6 They made up 5.31 per cent of the higher education student population in the country.7 Thus, a significant number of foreign EU nationals are having their postsecondary educations subsidized by British taxpayers. This is undoubtedly a contributory factor to the educational problem that the United Kingdom is currently experiencing. The University and College Admissions Service reported that 54,000 fewer British students started university in the United Kingdom during the current academic year.8 To put this in perspective, this is a 6.6 per cent decline from the previous academic year.9 The reason for this sharp decline in British-student enrollment is that average tuition at British institutions of higher education rose above 8,500.10 That is close to triple what tuition at British universities was the previous autumn.11 Especially unfortunate is the fact that this educational crisis has occurred at a time when higher-education skills have never been more important to secure their future, as was aptly stated by Shabana Mahmood, the Labour Partys shadow minister for higher education.12 The rectification of British universities inability to provide affordable education for many Britons will require drastic measures. One measure that is worth considering is generally13

Statistics Students and Qualifiers at UK HE Institutions, HIGHER EDUCATION STATISTICS AGENCY, http://www.hesa.ac.uk/content/view/1897/239/ (last visited Mar. 25, 2013). 7 Id. 8 D. D. Guttenplan, Fewer Students at U.K. Universities, Report Says, THE NEW YORK TIMES (Dec. 23, 2012), http://www.nytimes.com/2012/12/24/world/europe/fewer-students-at-uk-universities-report-says.html?_r=0. 9 Id. 10 Tuition Fees in 2013 Will Rise To 8.500 On Average , THE HUFFINGTON POST UNITED KINGDOM (July 25, 2012), http://www.huffingtonpost.co.uk/2012/07/25/tuition-fees-in-2013-rise-8500-pounds_n_1701867.html. 11 D. D. Guttenplan, supra note 8. 12 Id. 13 I use the adverb generally because, while they may be able to generally discriminate between British nationals and foreign EU nationals regarding tuition, British institutions of higher education cannot discriminate regarding tuition between British nationals and foreign EU nationals who can be classified as workers, self-employed persons, retain the status of a worker or self-employed person, or are a qualified family member of somebody falling within one of those exceptions as a result of the special protection these groups are given under EU law. See generally Directive 2004/38/EC, of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of

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ending the subsidization of foreign EU nationals educations at British institutions of higher education. Upon close examination of the issue, it becomes clear that, despite the strong contrary belief, British institutions of higher education may be able to generally deny tuition subsidies to foreign EU nationals higher without violating EU law. I shall explain why in this essay. I. BACKGROUND During the middle of the twentieth century, Europe began the process of federalization.14 To facilitate this process, supranational European governmental institutions developed the concept of the four freedoms: capital, goods, services and people.15 The last of the four freedoms listed in the previous sentence, the free movement of people through the EU, was created to allow Europeans to capitalize on the opportunities provided by the other freedoms.16 To effectuate the free movement of people within the EU, EU citizenship and laws and regulations curtailing national immigration laws, as applied to European Union citizens, were put into effect.17 Consequently, the countries that make up the European Union (Member States) are very limited in their ability to control the ingress and settlement of EU citizens within their territories.18 Additionally, Member States are very limited in their ability to deny EU citizens

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, 2004 O.J. (L 158) 77. 14 Finn Laursen, Federalism: From Classical Theory to Modern Day Practice in the EU and Other Polities, in The EU and Federalism: Polities and Policies Compared 3, 3-24 (2011). 15 Michael Johns, A Problem by Their Own Hands: Intra-EU Migration and Its Implications for Europe, in The EU and Federalism: Polities and Policies Compared 245, 245 (2011). 16 Id. 17 Id. 18 Id. at 249.

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who have availed themselves of their mobility rights access to the benefits that their own citizens receive, such as social security payments.19 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (Directive 2004/38/EC) is the mechanism used by the European Union to ensure that Member States facilitate the EUs goal of the free movement of people within the Union. Article 7(1)(c) of the Directive makes it clear that Member States are precluded from denying the right of residence to an EU citizen from another Member State who is enrolled at an institution of higher education within its borders and is able to demonstrate that he has both adequate health insurance there and sufficient pecuniary resources to avoid burdening the social assistance system.20 Unlike the case of foreign students studying in the United States, then, a student from, say, Italy, a Member State of the EU, is not required to obtain a visa from the British government prior to commencing his studies at a university in the United Kingdom, another Member State of the EU. An even greater dichotomy between foreign university students situation in the United States and foreign EU university students situation in another Member State is the fact that in virtually all situations the latter group receives the same benefits as university students who are citizens of the host Member State21 receive. Pursuant to Article 24 of Directive 2004/38/EC, [A]ll Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty.22

19 20

Id. at 250. 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, art. 7, 2004 O.J. (L 158) 77, 93. 21 Host Member State means a Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence. Id. at art. 2(3), 88. 22 Id. at art. 24(1), 112. It is important to note that the application of Article 24(1) is restricted by Article 24(2), which states that the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it

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Consequently, Member State governments and postsecondary educational administrators in the EU believe that they are precluded from making a distinction between students from the host Member State and students from other Member States regarding tuition. The aforementioned belief held by Member State governments and postsecondary educational institutions in the EU may be incorrect. First, recent opinions issued by the European Court of Justice can be used to call this belief into question.23 Additionally, Chapter VI of Directive 2004/38/EC provides Member States with a way, albeit a very limited one, to circumvent the Directives mandates regarding the right of EU citizens to take up residence in any Member State. Regarding the latter, in spite of the spirit of Directive 2004/38/EC, Article 27 allows Member States to restrict the freedom-of-movement rights of foreign EU nationals on grounds of public policy, public security, or public health.24 None of these grounds, however, may be invoked to serve the economic ends of a Member State.25 Additionally, if a Member State restricts the freedom-of-movement rights of a foreign EU national for a public policy or public security reason, the restriction must comply with the principle of proportionality.26 It is difficult, to say the least, then, for a Member State to invoke Article 27.

be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families. Id. at art. 24(2), 112. 23 See Case C-158/07, Forster v. Hoofddirectie van de Informatie Beheer Groep , 2008 E.C.R. I-08507; Case C209/03, R. v. London Borough of Ealing and Secy of State for Educ. & Skills, 2005 E.C.R. I-02119; Case C-138/02, Collins v. Secy of State for Work & Pensions, 2004 E.C.R. I-02703. 24 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, art. 27(1), 2004 O.J. (L 158) 77, 113. 25 Id. 26 Id. at art. 27(2), 114. Pursuant to the principle of proportionality, actions taken by EU institutions must not be broader than necessary to achieve the legitimate aim that is pursued. Proportionality Principle, EUROPA, http://europa.eu/legislation_summaries/glossary/proportionality_en.htm (last visited Apr. 5, 2013).

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II. ANALYSIS Part A: Would Article 24 of Directive 2004/38/EC Be Infringed If British Institutions of Higher Education Based Tuition on How Long One Has Lived in the United Kingdom? If one were to have analyzed whether it is permissible for British institutions of higher education to base tuition on how long one has lived in the United Kingdom prior to the middle of the last decade, it is virtually certain that he would have reached a negative conclusion. This is because the leading case on the issue prior to that time was Gravier,27 and this case lends plenty of support to the argument that it would be impermissible for British institutions of higher education to base tuition on the length of ones residence in the country. In Gravier, Francoise Gravier, a French student at the Academie Royale des Beaux-Arts, a higher education art school in Liege, Belgium, was required to pay an enrollment fee that only foreign students whose parents are not resident in Belgium were required to pay to attend a higher educational institution run or supported by the state.28 He challenged the statute, arguing that it restricts his freedom of movement provided for under EU law, and this litigation ultimately ended up before the European Court of Justice.29 The Court was faced with two issues: (i) whether EU laws ambit encompasses the situation of EU citizens who enter the territory of another Member State for the sole purpose of taking part in vocational training and, if so, (ii) whether the aforementioned enrollment fee violates EU law.30 Regarding the first issue, the Court held that access to vocational training is within the ambit of EU law.31 The Court reached this holding after finding that (i) EU institutions have

27 28

Case 293/83, Gravier v. City of Liege, 1985 E.C.R. 606. Id. at 607-08. 29 Id. at 607, 609. 30 Id. at 609. 31 Id. at 612.

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given a great deal of attention to the problems of access to vocational training and its improvement within the EU and (ii) access to vocational training in other Member States is likely to promote free movement of people within the EU by enabling them to get a qualification in the Member State in which they intend to work and enabling them to develop their talents in the Member States that have good programs in their desired areas of study.32 In other words, the right to receive vocational training anywhere within the EU, according to the Court, is a corollary of the principle of the free movement of people. Regarding the second issue, the Court was not receptive to the Belgian governments argument that charging foreign EU nationals higher tuition than Belgian nationals was justified on the ground that foreign nationals do not pay income tax in Belgium, reasoning that the cost of higher art education is not borne by students of Belgian nationality.33 This led the Court to conclude that the higher tuition charged to foreign EU nationals was based on their nationality.34 These findings lead the Court to ultimately hold that the enrollment fee at issue violated EU law because it constituted discrimination on the grounds of nationality,35 an action antithetical to EU law.36 Graviers holding is now applied to all higher education, not just vocational training. This was made clear by the European Court of Justice in DHoop, where it held that the freedom of movement encompasses the right to pursue higher education in general, not just vocational training.37 In addition to Gravier explicitly holding that EU universities may not charge EU nationals who are foreign higher tuition than nationals of the host Member State on the basis of
32 33

Id. at 612-13. Id. at 610-11. 34 Id. at 611. 35 Id. at 613. 36 See supra Part I. 37 Case C-224/98, DHoop v. Office nationale de lemploi, 2002 E.C.R. I-6191, paras 29-34.

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their nationality alone, the opinion can be read to implicitly hold that any attempt by an EU institution of higher education to distinguish foreign EU nationals from nationals from the host Member State regarding tuition will constitute discrimination and, therefore, violate EU law. If the lack of foreign nationals paying income tax was not a good enough argument to prevent the Court from holding that they were being discriminated against on the basis of nationality, what would be? After all, being a taxpayer is what has traditionally been viewed, and still is in many countries, as entitling one and ones family to receive benefits from the state which others do not receive.38 In the 2000s, the cases Collins, Bidar, and Forster provided an answer to this question. At issue in Collins was one of the conditions that the British government requires for an individual to be eligible to receive jobseekers allowance, a social benefit provided to unemployed British residents who are out of work but actively seeking it.39 The condition at issue is that a single claimant must be habitually resident in the United Kingdom, the Channel Islands, the Isle of Man, or the Republic of Ireland to receive jobseekers allowance.40 The challenge to the aforementioned condition on the reception of jobseekers allowance was brought by Mr. Collins.41 Mr. Collins was a dual citizen of the United States and Ireland.42 He arrived the United Kingdom on 31 May 1998 for the purpose of residing and finding work there.43 Having been unable to find work and having lacked pecuniary resources, he claimed

38

While I realize that indigent people and their dependents in many states receive benefits from their respective states even though they do not pay taxes, it is presumed that they will one day have the pecuniary resources to pay taxes, thus entitling them to the benefits that they receive. For instance, the reception of welfare by indigents is viewed by their respective governments as temporary grants to be given to the former until they are able to overcome their financial difficulties and become productive citizens once again. 39 Collins, supra note 23, at para 20. 40 Id. at paras 16-17. 41 Id. at para 20. 42 Id. at para 18. 43 Id. at para 19.

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jobseekers allowance on 8 June 1998.44 The competent authorities refused to grant him jobseekers allowance, having claimed that he was not habitually resident in the United Kingdom.45 Consequently, he filed suit, having claimed that EU law precludes a Member State from implementing a scheme that prevents a foreign EU national from receiving a noncontributory social benefit46 that nationals of the host Member State receive unless the former has lived within the host Member State for a set period of time.47 Such a scheme, he argued, constitutes discrimination based on nationality.48 The issue, then, that the European Court of Justice was required to answer was whether the principle of equal treatment, laid out in Article 24 of Directive 2004/38/EC, prohibits national legislation which makes entitlement to a jobseekers allowance conditional on a residence requirement. The Court held that conditioning a noncontributory social benefit to foreign EU nationals on the satisfaction of a residency requirement can be justified as long as i) it is based on objective considerations other than nationality and ii) it is proportionate to a legitimate aim.49 The Court found that a residency requirement is able to meet both these criteria in this context.50 First, this is because a residency requirement in this context is not based on nationality. Rather, it is used to ensure that there is a genuine link between an applicant for jobseekers allowance and the local employment market.51 Second, so long as a residency requirement is not longer than necessary for a host Member State to ensure that there is a genuine link between an

44 45

Id. Id. 46 A noncontributory social benefit is a benefit that is not conditioned on contributions to it. It is the opposite of a contributory social benefit, for which reception is conditioned on contributions to it. Examples of a contributory social benefit include pensions and social security payments. 47 Id. at para 45. 48 Id. 49 Id. at para 66. 50 Id. at para 73. 51 Id. at para 67.

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applicant for jobseekers allowance and the local employment market, it would not run afoul of the proportionality requirement.52 The Court added, however, that if a host Member State does condition the reception of a noncontributory social benefit on the satisfaction of a residency requirement, the residency requirement must be based on clear criteria made known to foreign EU nationals and allow for a means of redress of a judicial nature.53 Bidar is a similar case to Collins, but it is more pertinent to the issue with which this essay deals. Like Collins, at issue was a noncontributory social benefit conditioned on a residency requirement, but it concerned foreign EU students instead of foreign EU workers. The facts are as follows: Mr. Bidar entered the United Kingdom in August 1998 to accompany his mother, who entered the country to undergo medical treatment.54 Prior to September 2001, when he began university at University College London, he lived with his grandmother in the United Kingdom, as her dependent, and completed secondary school.55 Having sought assistance with maintenance costs concomitant to his pursuing a degree, Mr. Bidar applied for a student loan.56 The British government rejected his application on the ground that he was not settled in the country.57 Consequently, he initiated a claim against the British government in which he argued that his freedom-of-movement rights were violated by the British government as a result of its conditioning student maintenance loans on ones being settled in the country.58 The European Court of Justice, having followed the logic of Collins, held that it is legitimate for a Member State to condition the reception of a student maintenance loan on ones

52 53

Id. at para 72. Id. 54 R. v. London Borough of Ealing and Secy of State for Educ. & Skills , supra note 23, at para 20. 55 Id. at paras 20-21. 56 Id. at para 22. 57 Id. 58 Id. at para 23.

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demonstration that one is sufficiently integrated into its society.59 The Court also held that a Member State may avail itself of a residency requirement to determine whether one is sufficiently integrated into its society.60 The United Kingdoms residency requirement at issue, however, did violate Mr. Bidars rights.61 This is because, in addition to having precluded foreign EU students who lack integration into British society from receiving a student maintenance loan, the residency requirement precluded students who are integrated into British society from receiving a student maintenance loan as well.62 Under the Student Support Regulations, which stated the eligibility requirements for reception of student maintenance loans, it was the case that one who went to the United Kingdom solely for the purpose of attending a higher educational institution was unable to ever meet the requirement unless he subsequently qualified for Regulation (EEC) No 1612/68 status63 or he married a British national.64 Therefore, the scheme that the British government used to condition the issuance of student maintenance grants was not based on objective considerations other than nationality.65 Forster reinforced Bidars holding. In Forster, a twenty-year-old German national, Ms. Forster, moved to the Netherlands in March 2000 to get a degree in teaching.66 Unlike the plaintiff in Bidar, however, Ms. Forster, in addition to attending school in the Netherlands, had

59 60

Id. at para 57. Id. at para 59. 61 Id. at para 63. 62 Id. at para 61. 63 Regulation (EEC) 1612/68 encompasses migrant workers and their families. Id. at para 16. 64 See id. at paras 14-17. 65 Id. at para 61. Because the scheme was not based on objective considerations other the nationality, the Court did not have to determine whether the scheme was proportionate to the British governments aim. 66 Forster, supra note 23, at para 5.

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various kinds of paid employment there.67 For example, from October 2002 until June 2003, she took part in a paid-work placement in a Dutch school that provides secondary education to students who have behavioral and psychiatric problems.68 After her placement at that school, however, Ms. Forster ceased to engage in employment for the remainder of time in school.69 During her time at school in the Netherlands, she was the beneficiary of a maintenance grant provided by the Dutch state.70 She was awarded a maintenance grant despite the fact she was not a Dutch national because the government considered her to be a worker within the meaning of Article 39 EC, which qualified her to be treated the same way as Dutch nationals regarding maintenance grants.71 After the government realized she was unemployed between July and December 2003, however, it concluded that she was not a worker during that period and, consequently, she was told that she had to pay back all the money she received from maintenance grants during that period.72 The European Court of Justice rejected her argument that the Dutch governments having forced her to repay all the money she received from maintenance grants between July and December 2003 violated her freedom-of-movement right.73 First, it held that she stopped being a worker the moment she stopped working.74 Therefore, she was not entitled to receiving the maintenance grants during the aforementioned period on the basis of being a worker.75 Second, it stated that, pursuant to Bidar, a Member State may condition school maintenance grants on the

67 68

Id. at para 16. Id. at para 17. 69 Id. at para. 18. 70 Id. at para 20. 71 Id. 72 Id. at para 21. 73 Id. at para 60. 74 Id. at paras 28-31. 75 Id. at paras 32-33.

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demonstration of a certain degree of integration into the society of that Member State and that a residence requirement may be used to for the purpose of determining whether a foreign EU national is sufficiently integrated into the society.76 Additionally, the Court stated that a five-year residence requirement for the purpose of guaranteeing that a student is integrated into the society of the host Member State is legitimate.77 It is legitimate for two reasons. The first reason is that it does not go beyond what is necessary for a Member State to become assured that foreign EU students are sufficiently integrated into its society.78 The second reason is that it is in accordance with settled case law that in order to be proportionate, a residence requirement must be applied by a Member State on the basis of clear criteria known in advance.79 Therefore, because Ms. Forster did not meet the residence requirement, she was not entitled to receive school maintenance grants between July and December 2003. Taken together, then, Collins, Bidar, and Forster can be viewed to imply that British institutions of higher education are able to charge foreign EU nationalswith the exception of foreign EU nationals who can be classified as workers, self-employed persons, retain the status of a worker or self-employed person, or are a qualified family member of somebody falling within one of those exceptions as a result of the special protection these groups are given under EU law (1612/68-qualified persons)80studying in the United Kingdom higher tuition on the basis that they lack a sufficient degree of integration into British society. Each of these cases separately held that distinguishing between prospective beneficiaries of noncontributory social

76 77

Id. at paras 49-50. Id. at para 52. 78 Id. at para 58. 79 Id. at paras 67-70. 80 See generally 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, 2004 O.J. (L 158) 77.

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benefits on the basis of their integration into the host Member States society does not violate the principle of equal treatment and, consequently, does not violate foreign EU nationals freedomof-movement rights. Additionally, each of these cases separately held that using a residence requirement to test foreign EU nationals integration into the host Member State is, so long as it is reasonable, legitimate. Regarding the latter, the Forster Court went so far as to uphold a fiveyear residency requirement. Thus, most foreign EU nationals studying in the United Kingdom would fail to demonstrate sufficient integration into British society and, therefore, could be charged higher tuition. Critics will argue that the issues in Collins, Bidar and Forster are highly distinguishable from the issue at hand. There is a strong argument, however, that a fee subsidy for British students would not be meaningfully different than a grant subsidy for British students. In his article entitled Higher Education, Equal Access, and Residence Conditions: Does EU Law Allow Member States to Charge Higher Fees to Students Not Previously Resident?, Gareth Davies explained why, in his opinion, the maintenance grants that were at issue in Bidar and Forster are the same thing as subsidized tuition, which, if true, would justify a host Member State only subsidizing the tuition of its own nationals, and his argument is compelling. Stated Davies, A grant is merely a fee reduction by another name.81 What he meant by that statement is that the only difference between the issue at hand and the litigated issue in Bidar and Forster is the mechanism.82 Regarding tuition subsidies, the subsidy is paid directly to the institution where the student studies; regarding maintenance grants, the subsidy reaches the institution where the student studies through an intermediary, the student himself, that is, the subsidy is paid

81 82

Davies, supra note 1, at 234. Id.

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to the student, who then uses that subsidy to cover the cost of his education.83 Borrowing a phrase from Daviess article: a grant barely touches the students hands. It is truly a disguised fee reduction.84 Despite the strength of Daviess argument, there are reasons to distinguish student maintenance grants from subsidized tuition. These reasons are contained in Articles 7(1)(c) and 24(2) of Directive 2004/38/EC. As was mentioned already in this essay,85 Article 7(1)(c) of Directive 2004/38/EC makes it clear that a Member State is precluded from denying the right of residence to an EU citizen from another Member State who is enrolled at a university within its borders and is able to demonstrate that he has both adequate health insurance there and sufficient pecuniary resources to avoid burdening the social assistance system.86 Conversely, if a foreign EU student cannot demonstrate to the host Member State that he has both adequate health insurance there and sufficient pecuniary resources to avoid burdening its social assistance system, the host Member State may deny him the right of residence there. This article, it can be argued, is what distinguishes a maintenance grant from a tuition subsidy. If a foreign EU citizen were to have to resort to the reception of a maintenance grant in order to finance his higher education in the host Member State, there is no doubt this conduct would constitute burdening the social assistance system and, therefore, violate Article 7(1)(c), justifying his being discharged of his right of

83 84

Id. Id. 85 See supra Part I. 86 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, art. 24(1), 2004 O.J. (L 158) 77, 112.

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residence. By contrast, it would be a stretch to argue that enjoying a subsidized fee to attend school constitutes burdening the social assistance system of the host Member State. Unlike a student maintenance grant, subsidized tuition is not per se social assistance. Like roads, parks, and libraries, subsidized tuition in EU countries is a public good, meaning it is a commodity provided without profit to everybody within a community by the government for the formers well-being. Subsidized tuition is an EU public good because it is provided by the EUs Member States to all EU citizens for EU citizens well-being. Subsidized tuitions classification as a public good is important because societies do not view a community members use of a public good as a burden on society. Article 24(2) provides just as strong of an argument as Article 7(1)(c) does, if not more so, regarding why student maintenance grants and subsidized tuition are distinguishable. As was mentioned in footnote 22, Article 24(2) of Directive 2004/38/EC makes it clear that, despite the fact that Article 24(1) states that all foreign EU nationals are to be treated by the host Member State equally with its own nationals as long as the foreign EU nationals are residing there on the basis of the Directive, the host Member State is not obliged to grant school maintenance aid to foreign EU students unless they can be classified as workers, self-employed persons, retain the status of a worker or self-employed person, or are a qualified family member of somebody falling within one of those exceptions.87 Noticeably absent from that article is the European Council and Parliaments imprimatur that Member States are not obliged to provide foreign EU students subsidized tuition unless they can be classified as workers, self-employed persons,

87

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, art. 24(2), 2004 O.J. (L 158) 77, 112.

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retain the status of a worker or self-employed person, or are a qualified family member of somebody falling within one of those exceptions. This absence, then, is another reason to distinguish student maintenance grants and subsidized tuition. In summary, there is a cogent argument that Article 24 of Directive 2004/38/EC would not be infringed if British institutions of higher education, excluding 1612/68-qualified persons, only subsidized tuition for British nationals. This argument goes as follows: because i) there is no meaningful difference between a fee subsidy and a student maintenance grant, ii) the European Court of Justice has held that Member States may base the reception of a student maintenance grant on the ability to satisfy a residency requirement, and iii) the Forster Court in particular held that the ability to satisfy a five-year residency requirement in order to receive a student maintenance grant from the host Member State is legitimate, it necessarily follows that iv) British institutions of higher education may justify only subsidizing tuition for British nationals on the ground that foreign EU nationals, for the most part, will not satisfy a five-year residency requirement. However, Articles 7(1)(c) and 24(2) provide reasons to distinguish student maintenance grants from subsidized tuition. Article 7(1)(c) allows a Member State to deny a foreign EU student a right of residence if he cannot demonstrate that he has both adequate health insurance there and sufficient pecuniary resources to avoid burdening its social assistance system, and access to subsidized tuition arguably does not constitute recourse to a Member States social assistance system, whereas access to a school maintenance grant would because i) receiving a school maintenance grant constitutes per se social assistance, unlike receiving a tuition subsidy, and ii) a school maintenance grant is not a public good, whereas subsidized tuition is. Article 24(2) explicitly allows a Member State to not grant school maintenance aid to

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foreign EU students who are not 1612/68-qualified persons, but it does not do the same for subsidized tuition. Part B: If Article 24 of Directive 2004/38/EC Would Be Infringed If British Institutions of Higher Education Based Tuition on How Long One Has Lived in the United Kingdom, Could Not Subsidizing Tuition for Foreign EU Nationals Be Justified on the Ground of Public Policy Under Article 27? Whether Article 24 of Directive 2004/38/EC would be infringed if British institutions of higher education subsidized tuition for British nationals and 1612/68-qualified persons, but not the tuition paid by foreign EU students is ambiguous. Even if the European Court of Justice were to decide that that it would infringe Article 24, however, this would not necessarily preclude British institutions of higher education from doing just that. Pursuant to Article 27(1) of Directive 2004/38/EC, a Member State may disregard foreign EU nationals Article 24 freedomof-movement rights under certain circumstances: Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on the grounds of public policy, public security or public health.88 These grounds, however, Article 27(1) continues, shall not be invoked to serve economic ends.89 Additionally, pursuant to Article 27(2), for one of Article 27(1)s exceptions to be applicable, i) the restriction imposed by the host Member State must comply with the principle of proportionality, ii) the restriction must be based on the personal conduct of the person concerned, and iii) the personal conduct of

88

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, art. 27(1), 2004 O.J. (L 158) 77, 113. 89 Id.

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the person on whom the restriction is being imposed must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.90 An apt case issued by the European Court of Justice regarding the public policy exception to the principle of equal treatment is Van Duyn v. Home Office. The genesis of this case was the British governments refusal to grant leave to a Dutch woman to enter the United Kingdom to work as a secretary for an English branch of the Church of Scientology.91 The British government based its decision on the fact that it viewed the Church of Scientology as a socially harmful organization.92 Because Article 3 of Directive No 64/221/EEC, the precursor to Article 27 of Directive 2004/38/EC, mandated, as Article 27 of Directive 2004/38/EC now does, that a Member States invocation of the public policy exception to the principle of equal treatment be based exclusively on the affected persons personal conduct, the Court had to determine whether association with a body or an organization can in itself constitute personal conduct within the meaning of Article 3 of Directive No 64/221.93 The Court answered this question affirmatively, having stated that present association does constitute personal conduct.94 After concluding that present association constitutes personal conduct, the Court had to determine whether present association with a legal body or organization could be used to invoke Article 3.95 It held that present association with a legal body or organization, such as the Church of Scientology, could be used by a Member State to invoke the concept of public policy within Article 3 if it considers the body or organizations activities to be contrary to the public good. 96

90 91

Id. at art. 27(2), 114. Case 41-74, Van Duyn v. Home Office, 1974 E.C.R. 01337, para 2. 92 Id. at para 3. 93 Id. at paras 16-17. 94 Id. at para 17. 95 Id. at para 18. 96 Id. at paras 18-19

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The Member State must first have, however, clearly defined its standpoint regarding the activities of a particular organization.97 Additionally, it held that, because the particular circumstances that justify recourse to the concept of public policy are different in each Member State, Member States are to be given discretion when determining what activities are contrary to the public good.98 On a final note, the Court addressed whether a Member State is entitled, under the concept of public policy, to prevent a foreign EU national from becoming employed at a disfavored body when a similar restriction is not imposed on nationals of the host Member State.99 In the case at issue, British nationals were allowed to be employed by local branches of the Church of Scientology; only foreign EU nationals who were not 1612/68-qualified persons were not allowed to be employed by local branches of the Church of Scientology.100 As was the case with the other questions, the Court answered this question affirmatively. 101 According to the Court, despite the Directive, foreign EU nationals rights are more limited than those of nationals of the host Member State.102 It may be possible to justify subsidizing tuition for British nationals and 1612/68qualified persons but not other foreign EU nationals tuition on the basis of Van Duyns holding. This holding is arguably analogous with the issue discussed in this essay. Arguably, just as the present association of a foreign EU national with a local branch of the Church of Scientology in Van Duyn constituted a legitimate reason under the public policy exception to the principle of equal treatment to deny leave to become employed in the United Kingdom, the association of
97 98

Id. at para 19. Id. at para 18. 99 Id. at para 20. 100 Id. 101 Id. at para 23. 102 Id. at para 21.

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foreign EU nationals with British institutions of higher education may constitute a legitimate reason under the public policy exception to the principle of equal treatment to disallow the subsidization of their educations within the United Kingdom. First, Van Duyn was an action initiated under Directive No 64/221/EEC, one of the precursors to Directive No 2004/38/EC. Therefore, it demonstrates how Article 27 of Directive No 2004/38/EC is to be interpreted and applied. Second, if the Church of Scientologys activities were contrary to the public good in the United Kingdom, surely the activities of the United Kingdoms institutions of higher education could be deemed contrary to the public good. In the United Kingdom today, as is the case elsewhere in the West, having access to postsecondary educational institutions is a virtual necessity for success. The reasons are plentiful: low-skilled jobs are difficult to come across, as many such jobs have been offshored to third-world countries; competition for jobs in all sectors is a lot more competitive than it was during any other point in history as a result of globalization; and jobs these days are a lot more sophisticated than they used to be, requiring more education to perform them. Sadly, then, when having a postsecondary education is more important than ever before, it is becoming increasingly inaccessible to a great number of young Britons. Average tuition at British universities is now above 8,500.103 That is about three times as high as tuition was during the 2011/12 academic year.104 That foreign EU students studying within the United Kingdom are a cause of these drastic tuition hikes cannot be doubted. The most basic understanding of economics informs one that when over 132,550 foreign EU nationals, 5.31 per cent of the university-student population

103 104

Tuition Fees in 2013 Will Rise To 8.500 On Average , supra note 10. D. D. Guttenplan, supra note 8.

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in the country,105 have their educations subsidized by the British government, tuition is going to go up drastically. The effects of skyrocketing tuition in the United Kingdom are very conspicuous. Within a period of merely one year, 54,000 fewer Britons enrolled at a British university.106 That is an astounding 6.6 per cent decline from the prior academic year.107 It is important to note that it is unfeasible for most young Britons to avail themselves of Directive No 2004/38/EC to get a subsidized education in another Member State. Unlike their counterparts in other Member States, knowledge of foreign languages is not something for which the British are known: most Britons solely speak English.108 By contrast, it is unclear from Van Duyen how the Church of Scientologys activities within the United Kingdom are contrary to the public good. Whatever its undesired activities are, it is inconceivable that they are more contrary to the common good in the United Kingdom than the aforementioned practices by British universities. Having established that the current activities of British universities are contrary to the common goodmaking access to postsecondary education for many Britons inaccessible by subsidizing foreign EU nationals educationsit arguably follows from Van Duyen that the British government may invoke the public policy exception to the principle of equal treatment. Rather than to outright deny them leave to enter the United Kingdom, as occurred in Van Duyen, however, it would be enough to deny them the tuition subsidization that British citizens receive.
105 106

Statistics Students and Qualifiers at UK HE Institutions, supra note 6. D. D. Guttenplan, supra note 8. 107 Id. 108 See David Thomas, Why Do the English Need to Speak a Foreign Language when Foreigners Speak English? (Jan. 23, 2012, 1:01 PM), http://www.dailymail.co.uk/debate/article-2090595/Why-English-need-speak-foreignlanguage-foreigners-speak-English.html.

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Such conduct would not run afoul of the principle of proportionality. Even a partial subsidy of foreign EU citizens educations by British universities would push up tuition for Britons and, consequently, negatively affect their ability to attend university. One important way in which the issue at hand and the issue that was present in Van Duyen are distinguishable, however, is that the issue in the latter was noneconomic in nature, whereas the former is economic in nature. This is important, because Article 27(1) of Directive No 2004/38/EC states unequivocally that restriction of the freedom of movement of EU citizens on the ground of public policy shall not be invoked to serve economic ends.109 Despite this phrase, there are opinions that the European Court of Justice has issued that imply that it is rather inoperative. These cases are Kohll and Campus Oil. In Campus Oil, at issue was an Irish law that requires importers of petroleum products to purchase a certain portion of their petroleum requirements from a state-owned company that operates a refinery in the country.110 The prices of the petroleum products that the importers are required to buy from the state-owned company are set by the government.111 In response to the aforementioned law, six Irish businesses that trade petroleum products sought a declaration that the law infringed EU laws general prohibition on impediments to the free movement of goods within the EU.112 The Irish government countered that, as a matter of public security, the law was necessary.113 First, it explained that the state-owned petroleum refining company was

109

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, art. 27(1), 2004 O.J. (L 158) 77, 113. 110 Case 72/83, Campus Oil Ltd. v. Minister for Indus. & Energy, 1984 E.C.R. 02727, para 1. 111 Id. 112 Id. at para 2. 113 See id. at paras 5-6.

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necessary to prevent the country the country from becoming completely dependent on foreign petroleum products.114 Second, it explained that the law at issue is meant to ensure that the stateowned petroleum refinery remains solvent.115 Despite its acknowledgment that derogation from the prohibition of barriers to trade within the EU on the ground of public security must be non-economic in nature,116 the European Court of Justice held that a Member State that is very dependent on imports for its supply of petroleum products may rely on the ground of public security to require importers of petroleum products to purchase a certain portion of their petroleum requirements at government-fixed prices from a company that operates a refinery in the Member State if it is necessary to keep the company solvent.117 According to the Court, a Member States aim of always ensuring a minimum supply of petroleum products transcend[s] purely economic considerations and [is] thus capable of constituting an objective covered by the concept of public security.118 This is because, the Court reasoned, petroleum products are essential for a countrys existence, because its economy, institutions, essential public services, and the survival of its inhabitants depend upon them.119 Continued the Court, these resultant dangers are consequently public security matters.120 In Kohll, at issue was a Luxembourgian law that prohibited one, except in the case of emergency treatment received as a result of an illness or accident abroad, from receiving insurance coverage for medical treatment abroad without first obtaining prior authorization from

114 115

Id. at para 5. Id. at para 6. 116 Id. at para 35. 117 Id. at para 51. 118 Id. at para 35. 119 Id. at para 34. 120 Id.

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the competent social security institution.121 Such authorization was only granted if it was found that the treatment that was sought would have been impossible to receive in Luxembourg.122 The law was challenged by Mr. Kohll after social security medical advisors rejected his request that his daughter be permitted to receive coverage for orthodontist treatment in Germany.123 The rejection issued by the social security medical advisors was based on the ground that his daughters treatment was not urgent and could be provided in Luxembourg.124 Mr. Kohlls challenge was predicated on the freedom-to-provide-services principle.125 The European Court of Justice held that the law at issue infringed on the right to provide services because it deterred insured persons from receiving medical services from providers in other Member States.126 After it reached that conclusion, it went on to determine whether tjis infringement could be justified.127 The Luxembourgian government argued that the law was justified on the ground that it was necessary to guard against the risk of the financial balance of the social security schemes being unable to provide medical and hospital service to all of its citizens.128 The Court began its analysis of whether the law constituted a justified derogation from the freedom-to-provide-services principle by stating that an aim that is purely economic cannot justify a barrier to the principle of freedom to provide services.129 It then stated that the risk of the financial balance of a Member States social security system being undermined may

121 122

Case C-158/96, Kohll v. Union des caisses de maladie, 1998 E.C.R. I-01931, para 6. Id. at para 7. 123 Id. at paras 2-3. 124 Id. at para 3. 125 Id. at para 5. 126 Id. at para 35. 127 Id. at para 36. 128 Id. at para 38. 129 Id. at para 41.

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constitute an overriding reason in the general interest that is capable of justifying a barrier that is of an economic nature.130 Specifically, it stated that a Member States objective of maintaining a balanced medical and hospital service that all Luxembourgians are able to enjoy may be able to constitute a valid derogation from the principle of freedom to provide services on the ground of public health.131 In the case at issue, however, the Court held that the derogation from the principle of freedom to provide services on the ground of public health could not be justified, as the Luxembourgian government was unable to demonstrate that the law at issue was necessary to maintain a balanced medical and hospital service accessible to all Luxembourgians.132 It appears, then, that the language of Article 27 that states that a Member States restriction of the freedom of movement of EU citizens on the ground of public policy shall not be invoked to serve economic ends would not preclude British institutions of higher education from subsidizing British nationals and 1612/68-qualified persons tuition but not other EU nationals tuition in order to safeguard Britons access to postsecondary education. This is because the rationale the European Court of Justice applied in Campus Oil and Kohll is applicable to the issue at hand. Applying Campus Oils rationale, because the Court held in that case that Irelands having adequate petroleum products is essential for the countrys existence, causing its scheme that requires importers of petroleum products to purchase a certain portion of their petroleum requirements from a state-owned company in the country at prices fixed by the government to ensure sufficient petroleum products in the country to transcend[ ] purely economic considerations, there is a strong argument that a scheme by the British government to disallow British institutions of higher education to subsidize foreign EU nationals tuition in

130 131

Id. Id. at para 50. 132 Id. at para 52.

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order to safeguard Britons access to postsecondary education would transcend[ ] purely economic considerations. Just as a countrys existence is threatened if it does not have access to adequate petroleum products, its existence is threatened if it does not have an adequately educated population, because its economy, institutions, and the survival of its citizens depend upon a sufficiently-educated populace. Applying Kohlls rationale, because the Court held in that case that the risk of the financial balance of a Member States social security system being undermined is able to constitute an overriding reason in the general interest that is capable of justifying a barrier of an economic nature, it arguably follows that a scheme by the British government to disallow British institutions of higher education to subsidize foreign EU nationals tuition in order to safeguard Britons access to postsecondary education would constitute an overriding reason in the general interest that is capable of justifying a barrier of an economic nature. This is because such a scheme i) would fall into the category of social security scheme and ii) it appears that it is being undermined by British higher educational institutions being required to subsidize foreign EU nationals educations. The fact that Campus Oil and Kohll are not Directive 2004/38/EC cases should not matter. First, the language that was at issue in those cases is the same as the potentiallyproblematic language in Article 27(1) of Directive 2004/38/EC: the grounds of public policy, public security, or public health shall not be invoked to serve economic ends. Second, there is no reason to believe that the interpretation of the phrase stating that the grounds of public policy, public security, or public health shall not be invoked to serve economic ends has a different scope under Article 27(1) than it had in Campus Oil and Kohll. Those cases related to two of the four freedoms, the freedom to freely move goods within the EU and the freedom to provide and receive services within the EU, and Article 27(1) relates to one of the four freedoms: the
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freedom to move and reside freely within the EU. Therefore, the scope of the phrase in Campus Oil and Kohll is almost certain to be the same as it is under Article 27(1). Third, if the phrase were to have a different scope under Article 27(1) than it had in Campus Oil and Kohll, it would arguably be less restrictive under Article 27(1). The freedom to move and reside freely within the EU is a lot more recent than the freedom to freely move goods within the EU and the freedom to provide and receive services within the EU.133 Therefore, it is seems inconceivable that the phrase that the grounds of public policy, public security, or public health shall not be invoked to serve economic ends in a directive that applies to the freedom to move and reside within the EU would be broader than the same phrase as it applies to the freedom to freely move goods within the EU and the freedom provide and receive services within the EU. While the issue at hands economic nature is likely unproblematic, there is a different aspect of it that may be problematic. Unlike in Van Duyen, where the Church of Scientology was viewed by the British government as per se socially harmful, when it comes the British institutions of higher education, they are not per se socially harmful. To the contrary, they provide people with the education necessary to succeed in the contemporary marketplace. Rather, the only socially harmful activity they engage in, as it relates to British nationals, is subsidizing the tuition of foreign EU nationals. What is more, the reason they engage in this activity is because of they are supposedly required to do so under Directive 2004/38/EC. This is a large difference between the facts that were present in Van Duyen and the facts concerning the issue at hand. The aforementioned difference between Van Duyen and the issue at hand arguably does not cause an insurmountable problem. This is because the difference is arguably not an important
133

See Johns, supra note 14, at 245.

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one. First, just because a body or organization is not per se socially harmful to society does not indicate that it does not engage in at least some activities considered to be contrary to the common good, which is all Van Duyen requires for the concept of public policy within Article 27 to be invoked.134 As was explained, although they are not per se socially harmful, British institutions of higher education do engage in activities that are harmful to society in that they subsidize foreign EU nationals educations. Second, just because British institutions of higher education believe they are, and might be, acting pursuant to Directive 2004/38/EC when they subsidize foreign EU nationals educations does not preclude this activity from being able to be classified as socially harmful. Even though segregation was engaged in by state entities during the Jim Crow pursuant to state and local law in the Deep South, virtually nobody would claim that segregation was not socially harmful. Although, unlike the segregation laws in the Deep South during the Jim Crow era, the intention of the EU institutions that implemented Directive 2004/38/EC were goodto facilitate integration between the peoples and Member States within the EUits effects are contributing to an educational disaster within the United Kingdom. Third, the holding in Van Duyen emphasized that because the particular circumstances that justify recourse to the concept of public policy are different in each Member State, Member States are to be given discretion when determining what activities are contrary to the public good.135 The word discretion implies that, despite the fact that British institutions of education are not per se socially harmful and despite the fact their socially harmful activities appear to be done under the aegis of Directive 2004/38/EC, the European Court of Justice would be at least somewhat reluctant to challenge the British government if it were to formally state that British institutions of higher education engage in socially harmful activities in that they make access to higher

134 135

Van Duyen, at paras 18-19. Van Duyen, at para 18.

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education inaccessible for many young Britons by subsidizing foreign EU citizens educations, causing tuition to exponentially rise. In summary, if the government of the United Kingdom were to decide that it no longer wishes to subsidize the tuition of foreign EU nationals educations within the United Kingdom and the European Court of Justice were to hold that not doing so would infringe on the latters right to be treated equally with British nationals under Article 24 of Directive 2004/38/EC, it may still be able to end state subsidization of foreign EU nationals educations at British institutions of higher education by invoking Article 27 of Directive 2004/38/EC. Article 27 allows a Member State to infringe foreign EU nationals Article 24 right to equal treatment with nationals of the host Member State under the concept of public policy, which can be invoked by a foreign EU national being associated with a body or organization that engages in activities that are socially harmful. The British government may be able to successfully argue, then, that foreign EU nationals studying at British institutions of higher education, excepting 1612/68qualified persons, may be subjected to differential treatment than British nationals regarding tuition subsidization because i) they are associated with British institutions of higher education and ii) these institutionsby causing tuition to go up by subsidizing foreign EU nationals educations and, therefore, making higher education inaccessible for many young Britons arguably are engaging in an activity that is socially harmful to British society. If Campus Oil and Kohll are applicable, the fact that the problem the British government would be addressing is primarily economic in nature would not be problematic despite the phrase in Article 27 that states that the concept of public policy shall not be invoked to serve economic ends, but whether these cases apply is not certain. More problematic is the fact that British institutions of higher education are not per se socially harmful and the activities that they engage in that may be
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construed as socially harmful appear to be under the aegis of Directive 2004/38/EC, distinguishing their activities with those of the Church of Scientology in Van Duyen. There appear to be strong arguments, however, as to why these differences between the socially harmful activities of British institutions of higher education and the socially harmful activities of the Church of Scientology in Van Duyen should not matter. III. CONCLUSION In conclusion, despite the contrary belief of Member States and EU institutions of higher education, British institutions of higher education may, excepting 1612/68-qualified persons, be able to deny tuition subsidies to foreign EU nationals without violating EU law. There are two possible ways they may be able to do so. First, there is a strong argument that, in light of recent opinions issued by the European Court of Justice regarding the scope of the principle of equal treatment, Article 24 of Directive 2004/38/EC would not be infringed if British institutions of higher education based tuition on how long one has lived in the United Kingdom. Whether this argument would be successful would depend on whether the Court accepts the argument that a school maintenance grant and subsidized tuition are not meaningfully different from one another and how much emphasis it places on the fact that Article 24(2) of Directive 2004/38/EC specifically exempts EU institutions of higher education from having to provide foreign EU nationals with school maintenance aid, but is silent on whether EU institutions of higher education have to provide foreign EU nationals with subsidized tuition. Second, there is a strong argument that even if Article 24 of Directive 2004/38/EC would be infringed if British institutions of higher education based tuition on how long one has lived in the United Kingdom, these institutions could nonetheless not provide foreign EU nationals with subsidized tuition by invoking the ground of public policy under Article 27 of Directive 2004/38/EC. Whether this
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argument would be successful would depend on whether the Court viewed this issue as one that transcends purely economic considerations and is capable of constituting an objective covered by the public policy exception and whether it matters that British institutions of higher education are not per se socially harmful and the socially harmful activities they engage in appear to be under the aegis of Directive 2004/38/EC. The British government ought to further inquire into whether it is able to, excepting 1612/68-qualified persons, end the tuition subsidies it currently provides to numerous foreign EU nationals each year. Subsidizing the tuition of foreign EU nationals is done at the expense of young Britons, who are increasingly unable to receive a postsecondary education, and, as a result of the advent of globalization, not having a postsecondary education negatively affects ones life in a profound manner.

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