Estonian Higher Education Reform and EU internal market free movement rules

There has been a lot of debate in the Estonian society regarding the draft higher education reform proposal which is currently considered by the Parliament. It is based on free education for all competent students, a rather populist election promise of the conservative coalition party. There have been numerous concerns raised regarding the draft, ranging from it actually limiting access to education and hurting quality, but it seems that these arguments do not stand in the face of determination of the current Minister of Education and Research, Jaak Aaviksoo (the same guy who is responsible for the horrible Freedom Monument on Freedom Square).

The basic aspects of the reform are reform of funding of universities by making new result oriented agreements for receiving state funding (which is a good thing) and banning universities from taking any tuition fees from students who complete their studies in due course (which is a bad thing in my opinion unless the state is willing to provide the same amount of financing students paid before). Thus, funding of higher education is decreased.

The issue I wanted to point out regarding the reform relates to the fact that only studies that take place in Estonian are funded by the state. This language based restriction seems to me to be in contradiction to free movement rules of the EU (and I doubt that it could be objectively justified in this scale). The European Court of Justice, while agreeing that every Member State has the right to organise educational system in their countries, has stated that they must observe EU law when doing so:

The Member States are thus free to opt for an education system based on free access – without restriction on the number of students who may register – or for a system based on controlled access in which the students are selected. However, where they opt for one of those systems or for a combination of them, the rules of the chosen system must comply with European Union law and, in particular, the principle of non-discrimination on grounds of nationality. (C-73/08 Bressol, p 29)

In the Bressol case Belgium limited access to medical or paramedical programmes to only residents of Belgium, because a lot of students from other EU countries wanted to study there. The ECJ found that this was indirect discrimination based on nationality and this contrary to the Directive 2004/38/EC guaranteeing free movement rights. The court was presented several justifications for this by Belgium, most notably a justification based on risk for public health, which was ultimately left for the national court to decide.

It is correct that the proposed Estonian system is pretty unique and comparable only to the Czech Republic where free higher education is available if it is in the Czech language (based on studyineurope.eu). Although there currently are no further judgments on this from the ECJ, it is something that should be looked at. Language-based discrimination in tuition fees could be found not justified if the actual content of studies are essentially similar.