Those who take the law seriously conclude: these cuts must not proceed

On 25 March, the Senate has debated the Ministry of Education’s budget. The Netherlands aims to significantly reduce spending on higher education, primarily by admitting fewer international students. While European law grants the Netherlands considerable freedom in organising its education system and budget, one thing is strictly prohibited: unjustified discrimination against students from the European Economic Area (EEA), the so-called EEA students.

And yet, this is precisely what the Dutch government intends to do, despite its attempts to obscure the fact. As a result, the proposed budget cuts on international students conflict with European law—at least if we, and the courts, examine the government’s true intentions.

The plans

What are the plans? Initially, the government sought to make structural cuts of €293 million by reducing the number of international students, including EEA students. The House of Representatives has since adopted the Bontenbal amendment, reducing this amount to €168 million per year. To achieve these savings, fewer international students must come to the Netherlands.

The government intends to partially control this by limiting the number of English-taught bachelor’s programmes, although it remains unclear whether and when the necessary legislation for this will be introduced. However, universities and universities of applied sciences must largely take responsibility for reducing the number of international students themselves. If they collectively fail to do so, the minister will simply reduce the amount they receive per student.

In practice, this effectively establishes a collective funding cap for foreign students. However, no such cap applies to Dutch students. This creates an unjustifiable distinction in the financing of Dutch and EEA students.

Reducing migration

Why is the government pursuing this? It depends on what you read—the election manifestos, the coalition agreement, the government programme, previous versions of proposals, or the public statements of coalition parties. Or should we rely on the legally revised wording in the explanatory memorandum of the Internationalisation in Balance Act (WIB)?

What does the government truly want? Less. Fewer international students, and therefore less migration and less money going to foreigners. Both the coalition agreement and the government programme place these measures under a notably clear heading: “Control over asylum and migration.”

VVD MP Thierry Aartsen was also explicit: “The VVD wants the number of migrants to decrease. (…) It does not matter whether it concerns asylum migration, study migration, labour migration, or skilled migration. Across the board, the numbers must go down to ensure social sustainability.”

However, if we are to believe the explanatory memorandum and recent statements by Education Minister Bruins, reducing migration is suddenly no longer the goal. The new official objectives are to protect the Dutch language and make education “more efficient,” ensuring that foreign-educated students more often contribute to the Dutch labour market and society.

U-turn

Suddenly, reducing migration is no longer the objective. It is now merely a coincidental yet highly welcome “side effect” of protecting the Dutch language.

‘Deliberately excluding EEA students is simply not permissible’

Why this radical U-turn? The government has no doubt been advised by its excellent legal experts that deliberately excluding EEA students is simply not permissible.

Articles 18 and 21 of the Treaty on the Functioning of the European Union explicitly prohibit discrimination against EU citizens. Furthermore, according to established case law, indirect discrimination can only be justified if it serves a legitimate objective. Excluding EEA students as much as possible is simply not a permissible legitimate objective.

The minister himself explicitly acknowledges this. In response to questions from the Senate in January, he stated: “With the legislative measures in the WIB, we do not aim to reduce the number of European students: under European regulations, this cannot be a legitimate objective of Dutch legislation.”

The true objective

In short, the entire European legal feasibility of these cuts hinges on one question: What is the government’s true objective? Is it to limit migration, or is it to protect the Dutch language and, paradoxically, actually increase migration by encouraging more international students to stay in the Netherlands after graduation?

When answering this question, European law does not only consider the explanatory memorandum but all available evidence, including public statements by involved individuals and parties regarding migration. Anyone who takes the law, the courts, and themselves seriously can reach only one conclusion: these cuts must not proceed.

Language protection and efficiency are merely tools to achieve the government’s true migration objective—they are not its actual goals. Moreover, these tools are being applied incoherently, further undermining their compatibility with European law.

European law, however, does allow ample room to promote the Dutch language and better retain international students for the Dutch economy. A free piece of advice for the government, if this is truly its aim: invest in quality education.