by Katharina Stöbich
Art 45 (1) Every citizen of the Union has the right to move and reside freely within the territory of the Member States.
Art 21 (2) Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited. (European Union, 2012)
As constituted in the Treaties as well as the Charter of Fundamental Rights of the European Union, one of the most important principles of the EU is the equal treatment of all citizens. There are, however, exceptions, one of which I, as an Austrian student, am very familiar with. In this blogpost, I want to focus on Austria’s higher education quota system for medical and dental studies and the infringement case brought against Austria following this regulation. The main question is how can ‘this 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’ (European Commission, 2012), be justified?
First of all, I want to provide the historic background of the regulation and highlight its current form and scope.
Ever since Austria joined the European Union in 1995 and as a consequence of its tuition-free higher education, Austria has faced high numbers of international students. In order to eliminate applicants simply unable to fulfill the requirements of a more competitive system, from 2002 on, Austria required foreign applicants to prove being accepted into a university in their country of origin. This clause of the Austrian Universities Act was aimed especially at German so-called ‘numerus clausus refugees’, who do not have the required grade average for German universities and seek to study in Austria because of its linguistic, cultural and geographical proximity. (The Observatory on Borderless Higher Education, 2006)
The European Court of Justice found in 2005 that Austria’s legislation discriminated against holders of secondary education diplomas awarded in other member states, since they were not granted access to Austrian higher education under the same conditions as holders of the equivalent Austrian diploma (European Commission, 2007).
Following the Court’s decision, Austria amended the relevant Universities Act, which resulted in a significant rise of German students at Austrian medical schools. Not only was this trend expected to continue with a likely introduction of tuition fees in Germany, but Austria also feared that a ‘significant proportion’ of graduates would seek employment abroad due to lengthy specialist medical training and the comparatively low salaries of medical professionals. (The Observatory on Borderless Higher Education, 2006)
This is why in 2006, Austria introduced a quota reserving 75% of study places for medical and dental studies for applicants holding a secondary education diploma awarded in Austria, 20% for other EU students, and 5% for students from third-countries (Government of Austria, 2002).
The stated rationale was to promote ‘positive discrimination in education for the protection of important member state interests’ guaranteeing a sufficient number of Austrian graduates in order to secure the health-care system for the future (The Observatory on Borderless Higher Education, 2006).
The legislation establishing the quota constitutes a clear breach of the principle of free movement of EU citizens (European Commission, 2012).
In January 2007, the Commission sent a letter of formal notice to Austria regarding the discriminatory effects of the provisions. In November 2007, Austria was granted a suspension of the infringement proceedings until the end of 2012, which was later extended until the end of 2016. It appeared that the high numbers of foreign students coming to Austria could potentially lead to later shortages of qualified professionals in the public health sector and the suspension was deemed necessary to give Austria enough time to gather the statistical information to justify the quota in accordance with the principles laid down in the case-law of the Court. (European Commission, 2017) In its 2010 ‘Bressol’ judgement, the Court accepted that the protection of the quality of public health may, under very strict conditions, justify limitations on the free movement for students. A genuine risk to public health must be verified with solid, coherent data, and the measure taken must be the least restrictive one to actually reduce the risk in practice. The Austrian authorities agreed to a comprehensive data collection programme and an annual monitoring mechanism with the Commission. (European Commission, 2012)
In October 2016, Austria provided the Commission with a 181 pages final report containing the following main findings: The number of Austrian graduates of medical studies had decreased by 38% since 2009/10, while the number of German graduates had risen from 5% to 18%. 90% of graduates holding an Austrian school-leaving certificate carried out their profession in Austria, whereas only 7.5% of German graduates were employed in Austria between 2008/09 and 2011/12. Without the quota, Austria would come to lack 3,500 doctors by 2030, which would put the sustainability of the Austrian health system at risk. (ORF, 2017)
Based on the data provided by the Austrian authorities, on 17 May 2017, the European Commission concluded that the quota system in place for medical studies could be maintained, as it was justified and proportionate to protect the Austrian public health system. Nevertheless, Austria was asked to report to the Commission every five years on the necessity for maintaining the restrictions. On the other hand, the Commission held that no shortage of dentists was likely in Austria. The infringement procedure was closed under the condition that the restrictions for dental studies be removed in time for the 2019/2020 academic year. (European Commission, 2017)
In accordance with this decision, the quota for dental studies is no longer in place.
Considering that a sufficient number of qualified doctors is the basis of a well-functioning public health system, for a welfare state like Austria it is essential to regulate this domestic issue within the frame of EU legislation.
In the light of the limitations that the Union’s requirements to treat all citizens equally put on individual countries, the quota system is an interesting attempt of a member state to address a specific national problem in ‘positive discrimination’ areas such as health and education (The Observatory on Borderless Higher Education, 2006).
Katharina Stöbich is a student of Law and Translation Studies at the University of Innsbruck, Austria, and is currently completing her Erasmus semester at UCD. This blogpost was written as part of her coursework for the module INRL20160 Introduction to EU Politics.
European Union (2012). Charter of Fundamental Rights of the European Union, 2012/C 326/02. Available at: http://data.europa.eu/eli/treaty/char_2012/oj (accessed 15 March 2019)
The Observatory on Borderless Higher Education (2006). Austria introduces cap on the number of foreign medical students – but are quotas compatible with EU law? Available at: http://www.obhe.ac.uk/documents/2006/Articles/Austria_introduces_cap_on_the_number_of_foreign_medical_students_but_are_quotas_compatible_with_EU_law_ (accessed 15 March 2019)
European Commission (2007). Free movement of students: the Commission sends letters of formal notice to Austria and Belgium. Available at: http://europa.eu/rapid/press-release_IP-07-76_en.htm?locale=en (accessed 15 March 2019)
European Commission (2012). Austria and Belgium given more time to justify quotas. Available at: http://europa.eu/rapid/press-release_IP-12-1388_en.htm (accessed 15 March 2019)
European Commission (2017). Free movement of students: Commission closes infringement case against Austria. Available at: http://europa.eu/rapid/press-release_IP-17-1282_en.htm (accessed 15 March 2019)
Government of Austria (2002). Universities Act 2002, Section 71c (5). Available at: https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40200478/NOR40200478.html (accessed 15 March 2019)
ORF (2017). Medizinstudium: Quotenregelung hält. Available at: https://science.orf.at/stories/2843762/ (accessed 15 March 2019)