The Common Market for International Students: Does a Right to Free Movement and Equal Treatment for Students Exist in the European Union?

The market for international students in Europe is a lucrative one. Although there is no express free movement of students in the Treaty on the Functioning of the European Union (TFEU), the European Court of Justice (ECJ) has combined, through its jurisprudence, several provisions of European Union (EU) law to create a de facto right of free movement and equal treatment for citizens as they cross member-state borders seeking a higher education. Articles 18, 20, and 21 of the TFEU guarantee freedom of movement for citizens of the EU across member-state borders and freedom from discrimination based on nationality. Article 45 of the TFEU provides for the free movement of workers to pursue employment in other member states so long as these workers are citizens of the EU.

Article 49 of the TFEU gives EU citizens the right to pursue self-employment activities in another member-state. Regulation 1612/68 provides for equal treatment guarantees for migrant workers. These various provisions of EU law have been interpreted by the ECJ to grant free movement and equal treatment rights to students, but not on equal terms. The strongest rights for EU citizen-students is derived from the rights associated with free movement of workers which extends to both the worker and his or her children pursuant to Article 45 and Regulation 1612/68.

Although the ECJ has held that member-state governments cannot treat citizens of other member-states differently in regard to tuition and admissions, the ECJ has left open the ability of member-states to require proof of integration and financial stability on the part of a migrating student that threatens the existence of free movement and equal treatment rights for students.