The EU Education Policy in the Post-Lisbon Era

A Comprehensive Approach

by Caroline U. Amann (Author)
©2016 Thesis 287 Pages


This book provides a comprehensive view of the current state of affairs and possible developments in EU education law and policy. It covers the innovations brought about by the Lisbon Treaty as well as the Lisbon/EU 2020 Strategy and its implications for education and training and analyses the EU programme Erasmus+. Moreover, it takes a close look at the right to education as contained in the Charter of Fundamental Human Rights of the European Union and outlines the main trends in European Court of Justice case law. Finally, it focuses on cohesion policy measures and assesses the education initiatives undertaken by macro-regional strategies and the European Grouping of Territorial Cooperation (EGTC) European Region Tyrol-South Tyrol-Trentino.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author(s)/editor(s)
  • About the book
  • This eBook can be cited
  • Acknowledgements
  • Table of Contents
  • List of Abbreviations
  • 1. Introduction
  • 2. An Education Policy in the Making – A Historical Overview
  • 2.1. Humble Beginnings – the Initiation Phase (1948–1963)
  • 2.1.1 The Intergovernmental Actors
  • 2.1.2 The European Communities
  • 2.2. The Founding Years – the Development of a European Dimension of Education (1963–1992)
  • 2.3. The Maastricht Treaty and Beyond (1992–2000)
  • 2.3.1 Implications for Education and Training: The Maastricht Treaty
  • 2.3.2 Marching towards Lisbon: an Interim Period
  • 3. The Lisbon Strategy: High Flying Ambitions for Education and Training
  • 4. The Erasmus+ Programme
  • 5. Education and Training in the Lisbon Treaty
  • 5.1. Article 165 TFEU – Scope and Objectives
  • 5.2. Article 166 TFEU – Scope and Objectives
  • 5.3. The Legal Instruments of Articles 165 and 166 TFEU
  • 5.3.1 Incentive Measures
  • 5.3.2 Measures
  • 5.3.3 The Non-Harmonisation Clause
  • 5.3.4 The Adoption of (Incentive) Measures and the Enhanced Role of the CoR
  • 5.3.5 Recommendations
  • 5.3.6 Excursus on Article 352 TFEU
  • 5.4. The External Dimension of Articles 165 and 166 TFEU
  • 5.4.1 The EEA EFTA States
  • 5.4.2 The Particular Case of Switzerland
  • 5.4.3 Turkey and the Former Yugoslav Republic of Macedonia
  • 5.4.4 Erasmus+: Cooperation for Partner Countries
  • 5.4.5 Excursus on the Transatlantic Cooperation Programmes
  • 5.5. The Demarcation between Articles 165 and 166 TFEU
  • 6. A Right to Education – The Fundamental Rights based Approach/The Legal Perspective
  • 6.1. Fundamental Rights Protection in the EU
  • 6.2. Fundamental Rights Protection in EU Primary Law Post-Lisbon
  • 6.3. A Fundamental Right to Education: The Legal Implications of Article 14 CFREU
  • 6.3.1 Article 14 CFREU and (Inter)related EU Law – A Pot Pourri of Provisions
  • 6.3.2 Rights, Freedoms or Principles?
  • 6.3.3 The Sources of Article 14 CFREU
  • 6.3.4 Article 14(1) CFREU: The Right to Education and to Access to Vocational and Continuing Training
  • 6.3.5 Article 14(2) CFREU: The Principle of Free Compulsory Education
  • 6.3.6 Article 14(3) CFREU: The Freedom to Found Educational Establishments and the Right of Parents to Ensure the Education and Teaching of Their Children in Conformity with Their Religious, Philosophical and Pedagogical Convictions
  • 6.3.7 Limitations to and Derogations from Article 14 CFREU
  • 7. Main Trends in ECJ Case Law
  • 7.1. Education and the Derivative Right of Residence
  • 7.1.1 Chen and Zhu: Birthright Citizenship and EU Law
  • 7.1.2 Ibrahim and Teixeira: the Primary Carer’s Right of Residence or the Parasitic Right of the Parasitic Right
  • 7.1.3 Ruiz Zambrano: The Derivative Right of Residence in Internal Situations or “Civis Europeus Sum”
  • 7.2. Access to Study
  • 7.2.1 The Case of Austria
  • 7.2.2 The Case of Belgium
  • 7.2.3 Austria and Belgium: Conclusion
  • 7.2.4 The Special Case of Scotland
  • 7.3. Student Grants and Loans: Maintenance Aid and the Mobile Student
  • 7.3.1 Förster and the Five Year Rule: The Aftermath of Bidar or Goodbye to the Genuine Link Requirement for Non-Economically Active Students
  • 7.3.2 The Portability of Student Grants and Loans for the Economically Active Aka the Children of Cross-Border Workers: Commission v Netherlands and Giersch
  • 7.3.3 The Portability of Student Grants and Loans for the Non-Economically Active: The Genuine Link and “Own” Nationals
  • 8. Regionalism in the European Union: Taking Education to a Whole New Level
  • 8.1. EU Cohesion Policy and Education and Training
  • 8.2. Cross-Border Cooperation in Europe
  • 8.3. Macro-regional Strategies and the Implementation of EU Education Policy
  • 8.4. The EGTC European Region Tyrol-South Tyrol-Trentino: Education and Training at the Crossroads
  • 8.4.1 Education in Context: Actions and Activities
  • 8.4.2 The Erasmus+ Programme: An Option for the EGTC European Region Tyrol-South Tyrol-Trentino?
  • 9. Outlook and Concluding Remarks
  • References
  • Books and Articles
  • Web Sources
  • Case Law
  • ECJ Case Law
  • ECJ Advocate General Opinions
  • ECJ Opinions
  • ECtHR Case Law
  • Member State Case Law
  • EU Documents
  • Legislation
  • Other Documents
  • Press Releases
  • Publications
  • International Documents
  • Legislation
  • Other Documents
  • Publications
  • National Documents
  • Bilateral Agreements
  • Exchange of Notes
  • Legislation
  • Other Documents
  • Publications
  • Documents Relating to the Macro-regional Strategies
  • Documents Relating to the EGTC European Region Tyrol-South Tyrol-Trentino
  • Miscellaneous

| 13 →

List of Abbreviations

| 17 →

1. Introduction

Education is indeed the linchpin needed to build the productive connection between economic and social policies, between competitiveness and social cohesion, and it is the motor force for innovation and systemic social change. Education also opens up the most effective routes to explore the richness of European diversity and to develop a sense of belonging to Europe as a vital part of the individual’s sense of identity.1

Education is one of the policy areas in which the European Union (EU)2 holds supporting competence3. This means that the Member States have attributed no legislative power to the EU. It may “carry out actions to support, coordinate or supplement” the action of the Member States, however, “[l]egally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas” are not to supersede Member State competence by harmonising laws on national or regional level.4 The EU shall therefore “contribute to the development of quality education by encouraging cooperation between Member States […] while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.”5 Moreover, the EU “shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.”6

The complexity of EU education law dates back to the early years of the European integration process. Education has always been a matter of national ← 17 | 18 → interest. Hence, Member States were reluctant and refused to agree to a transfer of powers (i.e. “competences” in the European jargon). In fact, Community primary law lacked a legal basis for education until the Maastricht Treaty entered into force in 1993. In the 1970s and 80s, education first became relevant at the Community level. Resolutions on cooperation in the field were issued. Action programmes promoting exchange and mobility were introduced. However, what really catapulted education onto the European stage was the positive and integration-friendly approach of the European Court of Justice (ECJ). The free movement of workers, the freedom of establishment and the freedom to provide services are all in some way connected to the education sector. Hence, market-compatibility and the principle of non-discrimination on grounds of nationality quickly made the application of a policy-restricted view impossible.

The build-up process of EU education policy can best be explained with the classical neofunctionalist theory that focusses on spillover effects. Functional spillover is based on the idea that the economy is interconnected. Integration in one area builds up pressure, thereby leading to integration in others.7 It is clear that internal market freedoms require cooperation at Member State level. In order to make mobility work, professional qualifications need to be recognised throughout the Member States. Access to education and related social advantages needs to be equally available to migrant workers or service providers and their dependants in the host Member State. The ECJ’s activism and its influence on laws and regulations that are incompatible with EU law alerted the Member States. Preoccupied with sovereignty issues, they used the Maastricht Treaty to introduce a legal basis for education that explicitly forbids any harmonisation of national laws and regulations with regard to the content and organisation of education (cf. today’s Article 165 TFEU). The legal basis for vocational training, which had been formally recognised as an area of Community competence with the Treaty of Rome, was brought in line with the legal basis for education equally banning harmonisation (cf. today’s Article 166 TFEU).

While the Maastricht Treaty consolidated the position of the Member States, the introduction of a legal basis for education was nonetheless important for the EU as it facilitated action at the EU level. Since the ECJ had held that vocational training incorporates higher education, the legal basis for vocational training had been used to adopt the Erasmus programme. In the post-Maastricht era, action programmes were extended to pre-schools, primary and secondary schools. ← 18 | 19 → Moreover, the Maastricht Treaty introduced the concept of Union citizenship. For the development of EU education law, this was at least as important as the introduction of a legal basis for education. It allowed the ECJ to base its decisions on new rationales, improving the situation of the non-economically active. While the concept of Union citizenship has undoubtedly had a huge influence on education law, the non-economically active do not enjoy unconditional rights. Although there have been significant developments in the field of student maintenance aid, non-economically active students are not on par with economically active students or those retaining that status or dependants of workers or service providers who are treated as if they were economically active. Their right to access to maintenance for studies may be subject to durational residency requirements.

Due to the Union’s limited competence, EU education policy may appear somewhat static. The opposite is true. Title XII of Part Three of the Treaty on the Functioning of the European Union (TFEU) provides for education, vocational training, youth and sport. While Article 165 TFEU is broadly worded and focusses on education, youth and sport, Article 166 TFEU focusses on vocational training. EU education policy has become inextricably intertwined with other policy areas including cohesion policy (also referred to as regional policy), cultural policy, economic policy, employment and social policies or research and innovation policies. The Lisbon Treaty added a horizontal provision to EU primary law. Paying tribute to the importance of inter-policy interaction, Article 9 TFEU states that “[i]n defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of […] a high level of education”. Article 14 of the Charter of Fundamental Human Rights of the European Union (CFREU) sets out a right to education. When the Lisbon Treaty entered into force in 2009, the CFREU was integrated into EU primary law, making it binding.

Because of the non-harmonisation clause in Articles 165 and 166 TFEU, the EU primarily operates with so-called “soft-law”, i.e. “rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effects”.8 New modes of governance such as the open method of coordination (OMC), a policy-making instrument that translates common objectives into national policies and sets benchmarks to be reached within a certain timeframe, dominate the scene. Formally launched at the 2000 Lisbon summit, the OMC ← 19 | 20 → assists the Member States in the accomplishment of the goals set by Europe 2020 (hereinafter, the EU 2020 Strategy), the follow-up to the Lisbon Strategy. Emphasis on education is typical in times of economic crises. In 1973, the oil crisis, along with the resulting stock market crash, caused a depression which triggered youth unemployment all over Europe.9 The economic crisis that hit home in 2007 severely affected the southern Eurozone countries. Hence, the EU 2020 Strategy focusses on preventing youth unemployment by tackling early school-leaving and increasing tertiary educational attainment.


ISBN (Softcover)
Publication date
2015 (October)
Education law European Court of Justice Erasmus Macroregional strategies
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2015. 287 pp.

Biographical notes

Caroline U. Amann (Author)

Caroline U. Amann studied Law (Mag. iur. 2011, Dr. iur. 2014) and English and American Studies (Mag. phil. 2011) at Leopold-Franzens-Universität Innsbruck and University College Dublin. During her doctoral studies, she focused on European and international law. She currently works at a Big Four firm where she specialises in national and international tax law.


Title: The EU Education Policy in the Post-Lisbon Era
book preview page numper 1
book preview page numper 2
book preview page numper 3
book preview page numper 4
book preview page numper 5
book preview page numper 6
book preview page numper 7
book preview page numper 8
book preview page numper 9
book preview page numper 10
book preview page numper 11
book preview page numper 12
book preview page numper 13
book preview page numper 14
book preview page numper 15
book preview page numper 16
book preview page numper 17
book preview page numper 18
book preview page numper 19
book preview page numper 20
book preview page numper 21
book preview page numper 22
book preview page numper 23
book preview page numper 24
book preview page numper 25
book preview page numper 26
book preview page numper 27
book preview page numper 28
book preview page numper 29
book preview page numper 30
book preview page numper 31
book preview page numper 32
book preview page numper 33
book preview page numper 34
book preview page numper 35
book preview page numper 36
book preview page numper 37
book preview page numper 38
book preview page numper 39
book preview page numper 40
290 pages