CJEC, February 2, 1988, No 309-85

THE COURT,

1 By an Order of 9 October 1985 which was received at the Court on 14 October 1985, the President of the Tribunal de première instance, Liège, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of certain principles of Community Law in Order to determine the compatibility with those principles of a Law restricting the right to obtain reimbursement of enrolment fees which had been declared in a preliminary ruling to be contrary to Article 7 of the EEC Treaty.

2 Those questions arose in interlocutory proceedings brought by Mr Barra and 16 other plaintiffs (hereinafter referred to as "the plaintiffs") against the Belgian State, the defendant, for refusing to repay to them the supplementary enrolment fees (known as the "Minerval") which they paid before 13 February 1985, the date on which the Court gave judgment in Case 293-83 Gravier v City of Liège [1985] ECR 606. In the course of the procedure, the plaintiffs joined the City of Liège as third party.

3 It is clear from the documents before the Court that the plaintiffs are all French nationals who pursued technical and vocational secondary studies in the Gunsmithing section of the Institut communal d'enseignement technique de la fine mécanique, de l'armurerie et de l'horlogerie (municipal technical institute for precision engineering, gunsmithing and clockmaking) organized by the City of Liège. In the course of their studies at the Institute they were obliged each year to pay a Minerval which was not charged to students of Belgian nationality. According to the circumstances and the number of years of study completed, the Minerval paid by the plaintiffs varied between BFR 21 000 and BFR 136 558.

4 Before the national Court it was not contested that the institute concerned, and in particular its Gunsmithing section, is a vocational school. The national Court therefore considered, in view of the Court's judgment in Case 293-83, cited above, that the plaintiffs had paid a Minerval which was not due.

5 In Case 293-83 the Court ruled that the imposition on students who were nationals of other Member States of a charge, a registration fee or the Minerval, as a condition of access to vocational training, where the same fee was not imposed on students who are nationals of the host Member State, constituted discrimination on grounds of nationality contrary to Article 7 of the Treaty.

6 However, according to the Belgian Law on education of 21 June 1985 (Moniteur Belge of 6 July 1985), Minervals charged between 1 September 1976 and 31 December 1984 will in no event be reimbursed except for those charged to students who are nationals of a Member State of the Community and have taken vocational training courses, who will be reimbursed on the basis of judicial decisions made in proceedings for repayment brought before the Courts before 13 February 1985, the date on which the aforesaid judgment in Case 293-83, Gravier, was delivered.

7 Under those circumstances the national Court, in order to determine whether the refusal to reimburse the Minerval is compatible with Community Law, stayed the proceedings and referred to the Court the following questions:

"In its judgment of 13 February 1985 in Case 293-83 Gravier v Belgian State, the Court of justice held that the imposition on students who were nationals of other Member States of a charge, registration fee or 'Minerval' as a condition of access to vocational training, where the same fee was not imposed on students who were nationals of the host Member State, constituted discrimination on the grounds of nationality contrary to Article 7 of the Treaty.

(1) Is that interpretation of the Treaty limited to applications for admission to vocational training courses made after the date of the judgment or does it also apply to the period between 1 September 1976 and 31 December 1984?

(2) If the interpretation applies also to the period before the date of the judgment, is it compatible with Community Law that students from other Member States who have unduly paid a charge, registration fee or 'Minerval' should be deprived by national legislation of their right to repayment if they did not bring legal proceedings before the date of that judgment?"

8 Reference is made to the report for the hearing for a fuller account of the relevant provisions, the facts and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The first question

9 The plaintiffs and the commission agree that in principle the preliminary rulings of the Court have retroactive effect. National courts must therefore comply with the interpretation of Article 7 of the EEC Treaty given in the judgment of 13 February 1985 in Case 293-83 even as regards applications for admission to vocational training courses in the period from 1 September 1976 to 31 December 1984. A Member State may not adopt a Law restricting the effects ratione temporis of such a judgment where the Court did not make any such restriction in the said judgment.

10 Without denying the principle that preliminary rulings have retroactive effect, the Kingdom of Belgium maintains that in this Case all the preconditions for a restriction ratione temporis of the effects of the judgment of 13 February 1985 in Case 293-83 are met.

11 In that regard it must be recalled that the Court has decided (see in particular the judgment of 27 March 1980 in Case 61-79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205) that the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 177, the Court of justice gives to a rule of Community Law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied.

12 As the Court recognized in its judgment of 8 April 1976 in Case 43-75 Defrenne v Sabena [1976] ECR 455, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships entered into in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships .

13 However, the Court has consistently held that such a restriction may be allowed only in the judgment ruling upon the interpretation sought. The fundamental need for a general and uniform application of Community Law implies that it is for the Court of justice alone to decide upon the temporal restrictions to be placed on the interpretation which it lays down.

14 The Court is called on by the Order for reference to rule, in this connection, as to whether the interpretation of Article 7 of the EEC Treaty which it laid down in its judgment of 13 February 1985 in Case 293-83 also applies to the period prior to that date. As the Court did not limit the scope of its judgment in Case 293-83 ratione temporis, such a restriction cannot be made in this judgment.

15 The answer to the first question must therefore be that the interpretation of Article 7 of the EEC Treaty laid down by the Court in its judgment of 13 February 1985 in Case 293-83 is not limited in scope to applications for admission to vocational training courses made after the date of that judgment but also applies to the period prior to that date.

The second question

16 In its second question the national Court asks essentially whether Community Law precludes the application to students from other Member States who have unduly paid a supplementary enrolment fee of a national Law depriving them of the right to repayment of that fee if they did not bring legal proceedings for repayment before the delivery of the judgment of 13 February 1985 in Case 293-83.

17 It must be stated that the right to repayment of amounts charged by a Member State in breach of the rules of Community Law is the consequence and complement of the rights conferred on individuals by the Community provisions as interpreted by the Court.

18 Whilst it is true that repayment may be sought only in the framework of the conditions as to both substance and form laid down by the various national laws applicable thereto, the fact nevertheless remains, as the Court has consistently held (see in particular the judgment of 9 November 1983 in Case 199-82 Amministrazione delle Finanze dello Stato v Spa San Giorgio [1983] ECR 3595) that those conditions may not be less favourable than those relating to similar claims regarding national charges and they may not be so framed as to render virtually impossible the exercise of rights conferred by Community Law.

19 Since a legislative provision such as that at issue in the main proceedings, which restricts repayment solely to plaintiffs who brought an action for repayment before the delivery of the judgment of 13 February 1985 in Case 293-83, actually deprives individuals who do not satisfy that condition of the right to obtain repayment of amounts unduly paid, such a provision renders the exercise of the rights conferred by Article 7 of the EEC Treaty impossible.

20 Therefore the national Court, which is obliged to apply Community Law in its entirety and to protect the rights conferred by Community Law on individuals, must not apply such a provision of national Law.

21 The answer to the second question should therefore be that Community Law precludes the application to students from other Member States who have unduly paid a supplementary enrolment fee of a national Law which deprives them of the right to repayment if they did not bring legal proceedings for repayment before the delivery of the judgment of 13 February 1985.

Costs

22 The costs incurred by the Kingdom of Belgium, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national Court, the decision on costs is a matter for that Court.

On those grounds,

The Court,

In reply to the questions referred to it by the President of the Tribunal de première instance, Liège, by Order of 9 October 1985, hereby rules:

(1) The Court's interpretation of Article 7 of the EEC Treaty in its judgment of 13 February 1985 in Case 293-83 Gravier, [1985] ECR 606 is not limited in scope to applications for admission to vocational training courses made after the date of that judgment but also applies to the period prior to that date;

(2) Community Law precludes the application to students from other Member States who have unduly paid a supplementary enrolment fee of a national Law which deprives them of the right to repayment if they did not bring legal proceedings for repayment before the delivery of the judgment of 13 February 1985 in Case 293-83.