This contribution shows that educational mobility for schoolchildren is still fraught with obstacles in an area supposedly without internal frontiers, but that the restrictive measures of such mobility likely do not comply with EU law.

Crossing borders in search of education? Not for schoolchildren!

Primary and secondary education have an important role to play to ensure that new members of society are taught certain basic knowledge and skills, but also to induct them into the values, norms and principles that society holds dear. Such education is thus simultaneously the foundation of personal development and emancipation, as well as a process of socialisation and integration.

Primary and secondary education have an important role to play to ensure that new members of society are taught certain basic knowledge and skills, but also to induct them into the values, norms and principles that society holds dear. Such education is thus simultaneously the foundation of personal development and emancipation, as well as a process of socialisation and integration.

In recent times, however, some states are seeking to exert more control over the ideological development of the young. In the US, Trump stresses that his policy of ‘America First’ requires having schools teach ‘patriotism’. Similarly, the Dutch coalition agreement, specifies that schoolchildren must now learn the national anthem and its context – an idea of the Dutch Christian Democrat leader Buma meant to counter the perceived threat of multiculturalism. And in Germany, a multicitizenship (German, Dutch and New Zealand) family was recently forced to sell their house and business, and to leave the country so that the children would be allowed to attend an international school in the Netherlands.

If this sounds extreme, read on.

A sad story

After the closure of the St. George’s international school in Aachen, several of the parents sought to have their children attend education at the United World College in Maastricht. This was, however, prohibited by the NRW Schulamt, which is tasked with the supervision of the schulpflicht in Nordrhein-Westfalen (Article 88 jo. 37 Schulgesetz NRW). The reasoning was that this would hamper the integration of the child(ren) into German society. The consequence of this policy is that this particular family, with deep roots in Germany, had no choice but to move countries in order for their children to attend their education of choice.

The point of this contribution is to assess whether this policy is legal in the EU context. The Premable to the Treaty on the European Union after all reminds us ‘the historic importance of the ending of the division of the European continent and the need to create firm bases for the construction of the future Europe’. The behaviour of the NRW Schulamt in this case goes against this very basic principle and, as will be argued, violates EU law.

Can Member States prohibit their citizens from attending education abroad?

Two points must be made clear at the outset.

First, the UWC is a Dutch state-subsidised (‘bekostigd’) school, subject to the Wet op het primair onderwijs, and supervised by the Onderwijsinspectie. The most recent report indicates that the UWC is an ‘example for other schools’ due to the fact that it scored very well on a relatively large amount of the quality indicators.

Secondly, where it concerns a Union citizen residing in Germany but attending education in the Netherlands, EU law is a prima facie applicable. Since the UWC is state-sponsored, it can be debated – based on the Wirth case - whether it provides ‘services’ within the meaning of Article 49 TFEU and thus whether the measure could be challenged under that heading. However, in any case the child may rely on Article 21 TFEU with a view to exercise her free movement rights for the purpose of attending education elsewhere. This was confirmed in the case of Schwarz, in which the Court of Justice of the European Union held:

In that same case, the Court moreover held that:

The situation examined here goes one step further: The Schulamt is prohibiting the child in question from attending education in another Member State tout court.  This constitutes a breach of what is now Article 21 TFEU (former Article 18 EC) following the case Jipa.