Commission of the European Communities v. Republic of Austria, Case C‑147/03, CJEU (Second Chamber), 7 July 2005

The internal legislation of a Member State which provides for students of other Member States different conditions of access to university studies, than those required of their own students. Indirect discrimination based on nationality.

Art 18 TFUE
Art 165 TFUE
Art 166 TFUE

1. The legitimate interest that a Member State may have in preventing some of its citizens, making use of the facilities created under the Treaty, from abusively evade the force of its national legislation, does not justify discriminatory treatment. Indeed, the right for students from a Member State of the Union to access higher education in another Member State under the same conditions as holders of diplomas obtained in the latter State is the essence of the principle of free movement of students guaranteed by the Treaty, and therefore cannot in itself constitute an abuse of this right.

2. The internal legislation of a Member State which provides, as a condition of access to university studies, in addition to the secondary school diploma, also the requirements for access to higher or university studies in the different Member State that issued the diploma, disadvantages holders of secondary education diplomas obtained in another Member State, as they cannot access higher education under the same conditions applicable to holders of the equivalent diploma issued by that State. Such a discipline, although applicable indiscriminately to all students, is such as to further prejudice citizens of other Member States than citizens of the State that has provided for it, outlining a difference in treatment that leads to indirect discrimination based on nationality.

(Case relating to the internal legislation of a Member State which provides that students who have obtained a secondary education diploma in another Member State and who intend to undertake a specific course of higher or university studies must not only produce the said diploma, but also prove that they possess the requirements for access to higher education or university studies in the State that issued their diploma, such as, in particular, passing an entrance examination or achieving a level sufficient to be included in the limited number)