'Spending less money on international students is not an option'

Yesterday, the Senate debated the budget for the Ministry of Education, Culture and Science. The cabinet wants to make significant cuts to the higher education budget, and one of the main ways to achieve that is by admitting fewer foreign students. European law allows the Netherlands considerable freedom to organise its education and its budget, but one thing is not allowed: unjustified discrimination against students from the European Economic Area (EEA). Yet, that is exactly what the Netherlands wants to do and is doing, even though the cabinet tries to conceal it. This makes the cutback on international students a violation of European law.

The plans
The cabinet intends to make structural budget cuts totalling 293 million euros through a ‘reduction’ in the number of international students, including EEA students. The Lower House has adopted the Bontenbal amendment, which reduces this amount to 168 million euros per year on a structural basis. To realise these budget cuts, fewer foreign students must come to the Netherlands.

One of the ways the government intends to control the influx of foreign students is by allowing fewer English-taught Bachelor's programmes to exist, but it is still unclear if and when the necessary legislation will be introduced. However, universities and universities of applied sciences will have to take steps to reduce the number of international students themselves. If they are unable to do so, the minister will simply reduce the amount of funding they receive per student. This effectively means that a collective funding ceiling is being set for foreign students, while no such funding ceiling applies to Dutch students. The government is thus discriminating between Dutch students and EEA students in terms of funding.

Less migration
Why does the cabinet want to do this? That depends on what you read: the election programmes, the outline agreement, the coalition programme, earlier proposals or public statements made by the coalition parties. Or perhaps you're talking about the legally cleaned-up text of the explanatory memorandum to the Balanced Internationalisation Act (WIB)?

What the cabinet ultimately wants to achieve is less migration and less money for foreigners. Both the outline agreement and the coalition agreement include these measures under a clear heading: ‘Grip on asylum and migration’.

MP Thierry Aartsen, from the coalition party VVD, was clear too: ‘VVD wants the number of migrants to go down. (...) It doesn't matter if it concerns asylum migration, study migration, labour migration or knowledge migration. As far as we are concerned, the numbers will have to go down across the board to make it bearable for society.’

However, if you are to believe the explanatory memorandum and recent statements made by Education Minister Eppo Bruins, reducing migration is no longer the goal. The real goals now are to protect the Dutch language and make education more ‘efficient, so that students trained in other languages end up in places where they contribute to the Dutch labour market and society’.

U-turn
So, suddenly, the goal of the austerity measures is not to reduce migration anymore. That is now just a coincidental yet very welcome ‘side effect’ of protecting our mother tongue. What could explain such a drastic U-turn? The cabinet has undoubtedly heard from their excellent lawyers that deliberately excluding EEA students is not allowed.

Articles 18 and 21 of the Treaty on the European Union prohibit discrimination against EU citizens. According to established case law, indirect discrimination can only be justified if there is a legitimate aim. Excluding EEA students as much as possible is simply not a permissible, legitimate aim.

The minister himself explicitly acknowledges this. In January, he replied to questions from the Senate, saying that ‘the statutory measures in the WIB are not aimed at reducing the number of European students. Given European regulations, this cannot be a legitimate goal of Dutch legislation.’

The actual goal
In short, the entire European legal feasibility of the austerity measures targeted on international students hinges on one question: what is this cabinet's actual goal, to limit migration or to protect the Dutch language and, in so doing, increase migration by keeping more international students in the Netherlands after they graduate?

To answer that question, European law does not only look at the explanatory memorandum but at all available evidence, including all statements the persons and parties involved have made about migration. Anyone who takes the law, the judge and themselves seriously can only come to one conclusion: this is not allowed.

In this case, language protection and efficiency are means to an end that serve the actual goal of migration, not the actual goals of the cabinet. These means are also applied incoherently, which further undermines their compatibility with European law.

European law does, however, offer every opportunity to promote the Dutch language and better retain international students for the Dutch economy. A free tip, if the cabinet actually wants one: you can do that by investing in good education.

Armin Cuyvers is a professor of European law at Leiden University and head of the European law department

Vincent Delhomme is an assistant professor of European law at Leiden University

Hanneke van Eijken is a professor of the Rule of Law and Democracy at Utrecht University

Stefaan Van den Bogaert is professor of European Law at Leiden University

Sybe de Vries is a professor of public Economic Law at Utrecht University

The opinions and views above belong to the authors and do not necessarily represent DUB's opinions and views.