From the point of view of the European Union it will be a very long time before there exists a single market in the distance education industry; this is probably of more concern to the proprietary distance educators in the European Union. However during the Voctade survey and analysis concern was voiced on the fact that in the university sector, which enjoys a very large degree of autonomy, distance education courses are largely unregulated. Having regard to the cost advantages which may be gained by offering distance education courses, there exists the possibility that in the absence of outside evaluation or control, the didactic quality of these distance courses may not be all that they should.
It should also be pointed out that the information technology revolution with the consequent creation of intellectual capital, demands new and flexible ways to allow the workforce to exploit this new information-based factor of production. As distance education may have an instrumental role in adapting the workforce to work with intellectual capital, one must ask whether in a global economy this sector should be so unregulated at a European level.
This chapter will now go through the relevant member states which apply differing legislative models to distance education. Then the sector will be viewed from the European level.
Regulations applying to distance education in the states of the European Union is very varied, some states regulate courses others regulate institutions, some are voluntary others compulsory. Some member states have enacted legislation aimed specifically at proprietary provision of distance education, others have not. In some member states the regulation of proprietary distance education is carried out by non-state organizations. Some of the member states lack any objective method of control or regulation specific to distance education, and thus the ordinary norms of commercial and civil law apply.
No two states present the same model of control. France and Germany both have state supervised compulsory controls, however in Germany they are aimed at the course, whereas in France the provider is the focus.
Also it is obvious that many states do not have any legislation specific to distance education at all, and thus the industry falls to be regulated by the norms of commercial and civil law generally.
The most important legal control over the distance education sector in Germany is the Fernunterrichtsschutzgesetz law on consumer protection in distance education. This federal law was passed in 1976. This piece of legislation was complemented by an agreement amongst the Länder which led to the establishment and outlined the regulation of the Cologne Zentralstelle für Fernunterricht (ZFU). It is a most comprehensive piece of legislation and it obviously was given serious and thorough treatment by the legislator. The most significant parts of the legislation are the provisions on the nature of a distance education contract which is discussed in the section on contracts below.
The reason for such comprehensive legislation was that the distance education industry in Germany was for a time subject to criticism. Consumers were signing contracts that required sometimes that they pay for the entire course in instalments although they might drop out. The German response was typically thorough. The legislation is totally concerned with consumer protection.
It should be kept in mind that the comprehensive regulation of trades and vocations in Germany has a great effect on DE legislation. It has allowed legislators to concentrate more fully on consumer protection.
The consumer protection law requires that courses offered at a distance be subject to official approval by the national supervisory body in Cologne Zentralstelle für Fernunterricht (ZFU). It should be kept in mind that the comprehensive regulation of trades and vocations in Germany has a great effect on distance education legislation. It has allowed legislators to concentrate more fully on consumer protection.
The consumer protection law requires that courses offered at a distance be subject to official approval. The national supervisory body in Cologne Zentralstelle für Fernunterricht (ZFU) - a creation of the joint convention between the Länder - grants this official approval. The German system of approval is based on the courses themselves rather than institutions. The rule of thumb with regard to the approval of courses is that a student of average ability following the course should be able to attain the goals outlined.
Secondly the educational level (school level etc.) and other prerequisites required for the registration for the course in question is judged.
The study time necessary to complete the course, as indicated in the information material, is a further point of interest: It should enable the student to finish the course and the preparations for the exams in due time and coincide with the results from research work done in this area (e.g. 3 to 4 pages of reading work including tests per hour; 10 to 12 study hours per week).
Do the contents correspond with the aim of the course and -in a given case - the subjects mentioned in the respective public examination regulations and their necessary depth and breadth? This a main item in the evaluation process, as the majority of courses in vocational education claim to prepare for public exams, e.g. at a Chamber of Industry and Commerce. (Further education rather than apprenticeship)
Another important standard to evaluate in the teaching material, are learning objectives and their quality or level of concreteness.
The, perhaps, most important item in the process of quality control, however, is the evaluation of the contents of the course, their selection and structure, completeness as well as accuracy and relevance to the present state-of-the-art in the field in comparison with the respective scholarship as well as the application in the reality of industry. Apart from the verbal evaluation a record of mistakes and shortcomings etc. is elaborated for every study unit.
According to distance education didactics the teaching methodology is evaluated as well as the pedagogical elements supporting the learning process such as: division of the learning material into study units and subdivisions, apt to be studied within a limited and adequate period of time (eg., 1.5 hours), comprehensibility of the language, illustration of theoretical subjects by examples of case studies etc., links between and references to related topics and subjects, motivating elements, repetitions and summaries.
To support the learning process a general guide for studying at a distance is recommended, a specific guide for the subject matter as well as other elements of assistance.
Learning achievement in DE is controlled in two ways: by self-controlled assignments on the one hand and exercises for external control on the other hand, which is part of the DE institution's legal duties. In the evaluation process by the BIBB both, assignments and exercise, its pedagogical value and the kind of skills trained and examined.
The majority of DE courses also have a face-to-face phase. A BIBB expert assists during classroom teaching, seminars or else, evaluating its function within the course, its organization and the teaching methods applied. For the part of the quality assurance process an evaluation guide has also been developed.
The external subject matter evaluator finally gives his or her opinion on the course suggesting to either approve of the course or to disapprove. She or he gives reasons why the course is apt to reach the defined goal of the course, points out its strengths and weaknesses, and suggests necessary or advisable changes.
The majority of the DE courses evaluated by the BIBB are licensed under the condition that some obligatory changes be made and some recommendations be considered for improvement of the course material. In due time the DE provider has to prove, that the obligatory changes have been made.
The BIBB also serves as consulting body for new DE providers. Normally these consultations are offered individually and personally, but there has also been produced a number of publications to promote the creation of new distance education courses.
Of great importance to providers is the fact that the cost for this process, which would be very considerable, is borne by the BiBB although the providers seeking approval is required to pay a more or less nominal fee (the price of the course). Thus, it may be said that although the German process in this sector would seem to be most strict and thorough, it does not disadvantage the provider by adding to costs.
However, the process is lengthy precisely because it is thorough and it is conceivable that a provider who would like to gain competitive advantage by being first on the market may be delayed, though, in the main, this could hardly be levelled as a major criticism.
Other laws and decrees apply to distance learning: among others, the law n°71-575 of July 16, 1971 'concerning vocational training organisations in the context of continuing training' when distance learning applies to this context; or the finance act n°63-628 of July 2, 1963, articles 3-5 and the law n°73-1193 of December 27, 1973, article 44, concerning deceptive publicity. All these texts apply simultaneously. It is not possible notably to seek application of the law on vocational training to elude the more restrictive provisions of the law on distance education.
The creation of any private educational organisation is subject to a declaration submitted to the chief education officer of the school district where this organisation's head office is located: denomination of the institution, name and address of the signatory. An adjoined dossier must vouch for the diplomas, qualifications and abilities of the manager and possibly of each member of the teaching staff. It must provide the list of courses offered, a description of pedagogical methods as well as teaching and training materials recommended and provided to the students. The qualifications and abilities of the teaching staff may on no account be lesser than those required to teach a similar subject at an equivalent level in a State school. In case the organisation provides for student group sessions, the dossier should further include a detailed description of the premises.
No private distance education organisation is entitled to exercise its activity unless it has received an acknowledgement of receipt from the chief education officer, which is usually sent within a period of 2 months.
Controls must make it possible to ascertain that the distance teaching provided by private organisations lives up to the quality and dependability that is theoretically guaranteed in the dossier submitted for their declaration. In case of student group sessions, inspectors shall check that premises are compliant with health and safety regulations and that they are equipped with adequate teaching and lab work material.
Such controls are carried out by school inspectors of the Ministry of National Education and their inspectors who are competent in the specific subjects taught. At the higher education level, such inspectors are academics who are appointed by the chief education officer on the advice of their university's vice-chancellor (article 17 of the decree).
In order to help inspectors in their mission, institutions must keep records about teachers and students up-to-date.
If the inspectors conclude that measures need to be taken, they are entitled to submit the matter to the School Management Committee through the intermediary of the chief education officer. This Committee has authority to decide on disciplinary actions (prohibition to manage an institution or teach, and/or closing of the institution for one year or more).
Violations of the law are liable in court to a fine and even to a penalty of two months to one year of imprisonment. The sentence may include prohibition to manage an institution and to teach and/or the closing of the institution.
The notion of 'pastime course', which should be distinguished from courses that lead to student assessment, is not clarified by the law. From the moment that 'pedagogical aid is provided, whether as the main service or as a complement to a course, preparation or training', distance education is subject to the law of July 12, 1971.
When distance learning applies in the context of continuing training, the educational organisation shall also comply with the rules enacted by the law of December 31, 1975. This law reiterates the prohibition to 'mislead' the candidates for training regarding the prerequisite standard and the openings proposed.
Furthermore, this law specifies that it is forbidden to refer in any way to the fact that companies can discharge themselves of their training duty through the expenses relating to the training activity 'since only the control services are entitled in the last resort to decide whether such activity comes within the scope of the companies' legal training duty'.
French legislation is particularly consumer protection orientated and the detailed requisites of institutions include:
Private provision of private distance education, and since 1986, other private educational providers are regulated by three pieces of legislation in the Netherlands:
The Act on the recognized correspondence courses (1973)
The Act on recognized Educational Institutes (1986)
The Act of 1 Jan 1996 (WEB)'Wet educatie en Beroepsonderwijs'
These laws regulate quality control, recognition of the institution, quality control of courses, (i.e. accreditation), and recognition of diplomas (i.e. authorization).
The chief difference between both acts concerns the institutes covered by the acts. Under the 1973 act only private institutes offering distance education courses could apply for recognition; under the 1986 act private institutes for correspondence courses as well as private institutes for out-of-school learning may apply for recognition.
The necessary requirements for official government recognition include regulation of the following elements: quality requirements of teachers, quality of the courses, adequate information to participant, special contractual obligations with participants, marketing requirements, and examinations. Recognition is equivalent to the awarding of a quality label and equivalent to accreditation.
Both acts stipulate that the government controls the quality of the institutes if and when they apply for recognition. Private institutes, however, are free to apply or not to apply for recognition. Authorization by the government is not required to supply educational services. Neither must one notify the government of distance learning operations by a private institute.
An inspectorate is responsible for the initial and, after recognition, the periodic evaluation of the private institutes concerned, especially the evaluation of the different quality requirements. After a positive initial evaluation of an institute, the government recognizes the institute, i.e. the government awards a quality label and gives some form of official accreditation. If and when a periodic evaluation of the quality requirements by the inspectorate demonstrates insufficient quality of an institute, the recognition of the institute concerned is threatened.
The accreditation is mainly a quality assurance to consumers of the institute's educational products, i.e. the quality not only of the courses themselves, but also of their teachers and tutors, the course information, the contracts consumers have to sign, and, if any, the internal examinations of the institute.
Quality control by the government is only applicable to the recognized, accredited institutes. Non accredited institutes are free to offer educational provisions as they see fit. This applies also to providers of distance learning from other EC member states and third countries. There is no law and there are no regulations forbidding them any educational activity. The public and the potential consumers are free to draw their own conclusions about the quality of not accredited institutes. All private providers of education may apply for recognition and accreditation, providers of education leading to acknowledged examinations and providers of mere hobby courses. Most institutes for private correspondence courses provide both kinds of education and may kinds in between.
The regulations in private open and distance learning, furthermore, touch on marketing and advertising. As we have seen, the quality standards applied by the government include some marketing requirements. Institutes of private education are required to supply adequate information to participants and potential consumers, and are prohibited to offer financial benefits or other presents to the potential subscribers of the offered courses.
Otherwise the marketing and advertising for private (distance) education in the Netherlands is not regulated differently from marketing and advertising for other consumer products.
In practice most contracts of distance learning commit the subscribers and the providers to a specified length of time or to a specific course that in itself is limited in time requirements. People wanting to prepare for an acknowledged examination, for instance, are not required to commit themselves by contract to an unspecified period of time till they take the examination successfully; they enter into a contract for a specified period of time; after expiration of the time period they may enter into a new contract for another time period. In practice the time period of such contracts is a year or half a year. The contracts on those who do (18% of all courses), may be entered into for successive shorter periods.
In the new law, 'Wet educatie en Beroepsonderwijs' (WEB) , there is in principle no difference anymore between the public and the private sector, which means that now private institutes can offer a 4 years formal vocational education which gives the same diploma as the public schools do.
The only difference is the defrayment. There are two more requirements, one is that it is only for large vocational training programs, so not for courses. Secondly you have to guarantee a certain level of quality. In all the training programs is a certain amount of time in practise is necessary.
Looking for vocational training courses people can search in a register with the names of all the schools and private institutes who are allowed to give the course.
This new law covers the secondary level. For higher education, included the university, there is the law 'Wet op het Hoger onderwijs en Wetenschappelijk onderzoek', the WHW (law for higher education and scientific research). Within this law the Minister of Education can assign a private institute as a formal university (or polytechnic).
Unfortunately, due to a conflict in timing, the Voctade project has not been able to study the new law in-depth, as there is as yet very little literature or study on the subject.
The legislation could be said to be strict, however. The legislation in Belgium is not applicable to courses which do not prepare students for state qualifications (and are thus subsidized) this has been confirmed jurisprudence of the Court de Cassation in 1971(the highest civil appeals court). The governing legislation is the 1965 law of the 5 March.
Chapter one of this law is concerned with defining the relevant terms, applied to correspondence courses.
Chapter two contains the general dispositions of the law.
Chapter three imposes some more general qualitative and consumer protection conditions. Contracts must be written including the curriculum the duration of the course and frequency of materials and corrections it also prohibits misleading advertising and door to door selling.
However, Belgian legislation only applies to courses preparing students for examinations mentioned in Article 2 of the said law. Affirmed by Courts de Cassition (relevant Belgian court) 7 December 1971. In effect this means that the legislation only applies to public entities. A private provider may meet the requirements and thus receive the same certification and funding from the state however some requirements of the law clearly do not favour private providers. A provision is that the course must be run for at least two years in order to receive funding. This proves prohibitive for proprietary distance education providers. Also any term that commits the student for a year or more or requires an advance payment of more than three months is null and void. Clearly the legislation does not facilitate proprietary provision of distance education.
Therefore, education at a distance in general fails to be regulated by commercial law.
Distance education services offered by the private commercial sector are governed by the country's trade laws (law of 14 July 1991, Moniteur belge of 29 August 1991 and law of 12 June 1991, Moniteur belge of 9 July 1991).
The sale of all goods and services in Belgium is governed by the general laws on commercial practices and apply, in any event, to private distance learning institutes. These cover, amongst other things, consumer information, price setting rules, fraudulent advertising, and abusive contractual provisions.
From a commercial point of view distance learning courses may be considered either goods or services. The law does not give any useful specifications that would make a clear and objective distinction between those two statutes.
However, different laws apply, depending on whether distant learning is considered a good or a service. The Consumers Research and Information Centre (CRIOC) feels that distance learning is a good when the sale concerns primarily teaching materials (syllabi, for example) and a service when the interactions between the student and vendor (corrections, for example) are important.
There is no Government department in Great Britain directly responsible for the accreditation of open and distance learning in the private sector of the education system.
The UK distance education industry however, does not operate in a regulatory vacuum. In 1969 the Government and other interested parties considered it necessary to create a body which would monitor the administration and courses offered to the public, both in Great Britain and overseas, by correspondence colleges based in the U.K. The Open and Distance Learning Quality Council was established as the Council for the Accreditation of Correspondence Colleges. The task of this body was to ensure the quality of courses offered at a distance.
For many years the Government advised on the appointment of Council members, and indeed provided funding for the CACC. In 1990 the Secretary of State for Education and Science stated that the British Council, the BAC and the CACC provided the only public guarantee of standards in independent institutions of further and higher education in the UK.
However public funding was withdrawn from the Council when the Council was privatised by the government in 1982. On the 6 April 1995, the Council changed its name to the Open and Distance Learning Quality Council (ODLQC), the new nomenclature reflects in a better way the nature of the member colleges. The legal status of the ODLQC is that of a Registered charity. The ODLQC continues to receive a kind of informal Government approval. In 1994 the Minister for Higher Education was happy to issue certificates to newly accredited colleges.
The Council is made up of members drawn from professional and public bodies involved in education, as well as representatives of accredited colleges. Members are chosen for their ability to contribute to the work of the Council and are all highly qualified in their own particular fields.
In addition to its function of quality assurance , the ODLQC plays an important role in the development of Open and Distance Learning throughout Europe, providing information and advice as requested and participating regularly in the various conferences.
The accreditation procedure includes a rigorous assessment of the applicant's administration, educational materials, tuition and publicity. The Council then monitors accredited colleges to ensure that learners continue to receiver good service. Colleges are re-accredited at least every five years. However, a great number of distance training providers have not registered with the council. Again where non binding quality associations exist in the rest of the European Union, such as Spain, a much larger part of the institutions are accredited.
The ODLQC continues to act as the national accrediting body for Open and Distance Learning provision, (excluding the Open University and most other University provision), throughout the U.K. and plays an active role in the U.K. Flexible Learning Forum, set up in 1995 in collaboration with the government, to explore and advise on policy in this field of education and training.
It is worth examining the evaluation procedure used by the ODLQC as it highlights again the criteria of particular importance to the distance education industry. Accreditation , then, is based on the following considerations.
The objectives(s) of each course must be so devised and structured that these objectives can effectively be achieved. This means that courses should be targeted to enable students to reach defined educational, vocational or recreational goals: objectives, structure and content must be appropriate to the unit or units to be assessed, and the achievement expected of the student.
Where courses are designed to lead to the organisation's own qualifications and not those of an external examining body, particular care should be taken to ensure that the level of achievement expected and the acceptability of the qualification are fully understood by the student.
Where course materials have been acquired from another organisation or agency, Council will expect to assess their suitability as though they had been devised internally.
There must be evidence of a consistent assessment policy, and of appropriate guidance to tutorial staff.
Once students are recruited to courses suitable to their initial level of attainment, the organisation should aim as far as possible to guide their learning, and to encourage them to complete their courses so as to achieve a satisfactory standard in any form of assessment associated with them. Concern for the educational wellbeing of the student should be central to this process.
The organisation must have fair and reasonable conditions for the enrolment of students and the conduct of their courses. All possible steps must be taken to ensure that every student who applies for enrolment is given a full statement of his/her financial and other commitments to the organisation, and of the services he/she is entitled to be provided with in return. Where a Student's Charter has been adopted the conditions of enrolment will be expected to conform with it.
Conditions of enrolment should be presented as a contractual statement or learning agreement, either on or with the enrolment form and a signature of assent should be required from the student. A copy should be returned tot he student to be retained for future reference. Details may be amplified where necessary in the organisation's prospectus or student handbook.
The following elements may need to be included, depending on the nature of the open and distance learning provision:
Organisations must maintain the highest ethical standards in their recruitment of students. Advertising and promotional literature and practice must be truthful, accurate and informative. Undue pressure to enrol, for example through 'hard-selling', should be avoided.
Publicity material should accord with the objectives of the courses being publicised. Neither printed material nor personal consultations should offer exaggerated prospects of individual success, professional status of financial reward. Where eligibility for membership of a professional institute is offered other than through the passing of external examinations a specific agreement to that effect must have been reached between the organisation and the professional body concerned. Documentation on such agreements should be made available if requested.
Where an organisation offers courses not specifically designed to prepare students for an award from a nationally recognised examining body, this fact must be made clear to the prospective student. Where practical experience is essential for a student to become fully qualified and this cannot be offered by the organisation, this should also be made clear to the student before enrolment.
The organisation should ensure, to the best of its ability, that neither students nor staff are discriminated against directly or indirectly because of their gender, race, colour, nationality, ethnic origin, religious or political beliefs, or for any other reason.
Since methods of open and distance learning are particularly suitable for the needs of disabled students any steps that can be taken to facilitate their recruitment should be encouraged.
Procedures for dealing with complaints from student should be clearly specified, understood and followed.
Students must be informed of the basis on which 'satisfactory completion' is assessed at the commencement of the course. No statement by an organisation shall imply that any such diploma or certificate may be recognised as equivalent to a degree or to a diploma or certificate awarded by a recognised examining body unless the organisation itself has been granted official recognition by that examining body.
The wording of a certificate or diploma awarded by an organisation should give its address and the designation (e.g. 'Principal') of the person who signs its. The certificate or diploma should indicate satisfactory completion of a course and should not imply general recognition or a licence to practise.
Whether or not the mode of study (e.g. by open or distance learning or home study) is to be included on the certificate or diploma is a matter for the discretion of the organisation.
The certificate of diploma should not make reference to accreditation.
The ANCED Quality Control Board, is responsible for advising its member institutions in the design and elaboration of their courses. It also analyses, studies and evaluates courses created by private institutions linked to the organization. This board is currently in operation even though it is still not formally regulated by ANCED statutes.
There are minimum quality norms which are a requirement for a course to be accepted by ANCED. It is compulsory for all members (or future members) of ANCED to go through the quality control mechanisms of the Quality Control Board.
The analyses of courses made by the committee focus mainly on the aims, contents and methodology, as well as on the institution offering them.
No financial benefits can be offered in advertising to potential subscribers.
The standard model contract used by all ANCED institutions is the same and students' rights are also the same. Material must be returned within 15 days from the time it is handed out. Students have the option to change courses if they wish to. Rights are guaranteed in the contract and in practice. Contracts are always written and normally obtain for a period of three years.
Advanced payment is not allowed. Payment is made by bank order once materials are received, and there are no penal or liquidated damage clauses in the contract.
If institutions assign their contractual rights to a third party, users have the same rights against the third part as they would have had against the institutions.
As mentioned before, public educational administrations have not exercised control over, had the right to authorize, or give accreditation to private courses and institutions since 1990, when Ley Organica General del Sistema de Educación (LOGSE) was approved and brought into operation, since these courses do not lead directly to the awarding of academically recognised certificates and diplomas. The control over rights and obligations between private enterprises involved in distance learning and users can be done through public institutions under application of laws regulating the market; hence the current common practice of contracts signed by these teaching institutions and their students at registration.
It is envisaged that in the future these institutions and courses may be recognised and authorised by education administrations, if and when their objectives and course contents become equivalent to those of regulated courses in institutions, and staff fulfil the general requirements established by education administration.
ANCED acts as the legal arbitrator for its associate members.
There did exist legislation on private distance education in Finland, the Private Distance Education Learning Act. However this was repealed in 1994. The general requirement of the act was that a provider needed a licence awarded by the government in order to be eligible for public subsidies. Since the repeal of the Act the allocation for subsidies is governed by legislation which applies to all forms of education and training. It is no longer necessary to first obtain a licence. The report Quality Assurance in Distance Learning in Europe (Zimmer, 1995) makes the very important point that consumer protection measures do not apply to educational provision in Finland.
The latest plan, for 1995-2000, called Education and Research 2000, was adopted in December 1995. The main aims are still the same and the key criteria for the education in the five-year plan are high quality, educational equality, and the principle of lifelong learning. Education and Research 2000 includes eleven development priorities. The Finish system of such plans ensures a continuing dynamic and so legislation in this field is possible in the future.
Higher education is regulated and distance education is, in Sweden, regarded the same as any other course for the purpose of these regulations. There is one exception in this regard, Hermonds private distance learning school. In 1958 this school received government recognition under ministerial decree. The result is that it is the only private distance education establishment which receives public monies from various authorities, local and national, for courses given to certain groups of students.
There is, at the time of writing, a most important study being conducted on distance education in Sweden called DUKOM. The commission will present the result of the investigation and proposals to the government in May 1998. Some special regulations on distance education might come out of this.
It is most important to keep in mind that the consumer in Sweden is not greatly disadvantaged by the absence of legislation in this field as the Swedish consumer protection regulations are amongst the most strict in Europe.
Research has found that the only reference to 'distance education' in the legislative databanks of Denmark (fjernundervisning) is in 'loven om Aaben uddannelse' i.e. the law on open education (law 508 from 30/06/1993.)
The central paragraph is § 2 pkt. 6 which says in English:
Open education can be offered as distance education.
The rule simply defines distance education as a delivery form, where all rules for normal face to face open education are valid. Open education is primarily a part time adult education system where all full-time degree courses in theory can be offered. It is also up to the single institution - be it on university or on vocational school level to chose which of their courses they want to offer at a distance. There is free admission to open education- that is if you meet the entrance qualifications, which are the same as for the parallel full time education.
There is however a qualitative mechanism for distance education in Austria, the Österreichische Fernschulverband ( Austrian Association for Distance Education). This is an association of distance education providers which was founded in 1970 and requires its members to meet certain qualitative norms.
The members of the Österreichische Fernschulverband must provide:
The relationships between distance education providers and students must be governed by national, commercial and civil laws. In the context of inter-state endeavours on the field of distance education the fact that these states apply no type of regulation must make them open to the possibility of suppliers from other member states operating without restriction within their frontiers. This is explored in more detail below.
The freedom to provide service is the governing instrument where one is not 'established' in a member state; establishment may simply be an office or desk. The freedom of establishment gives rise to a differing set of rights and obligations. The very general and main distinction being that an undertaking 'established' in a member state is more and in most cases fully prone to the regulations of the host state.
However, it is worth noting that the Court of Justice of the European Union has held in the van Binsberg case that one will be deemed to be established in a state if it is proved that all of the services are directed at the state with a view to avoiding professional rules. So the fear of a distance education provider establishing outside the borders of a member state intending to provide services there, without being subject to the rules of the host country, would seem to be unwarranted.
The freedom to provide services is, then, a fundamental freedom of the European Union. It is of central importance in the creation of a single market, itself a tool to achieve the aspiration of Article 2 of the EEC treaty. The single market has been confused with the end its creation envisages. The single market is not an end in itself; it is a means to an end. The first 3 articles of the EEC treaty are patently clear about this point and it is abundantly clear that the European Union is not simply a free trade.
The single market is a vital tool in the achievement of the ideals of the whole European endeavour and thus its establishment and regulation is crucial. Given its importance in the European Union's development it may not be surprising that it became an end in itself.
The European Union has been criticised in the past for over-concentrating the term single market with goods. It is fair to say that the establishment of a free single market in goods products did occupy the minds of the earlier constructors of Europe, especially agricultural products. The very long and convoluted trail to the eventual establishment of the free movement of capital shows that the establishment of a single market for these more abstract goods and services of a capitalist society did not receive the same attention.
However, the natural abstraction of economic activity has led to a position where the large heavy industries and agriculture which were the dominant force in economic activity and lay at the bottom of the then seminal EEC project have lost much importance. Economic activity within, and the profit margins of, the services sector have changed the emphasis.
The information revolution has also contributed enormously to the growth in importance of the service industries.
The European Union has reflected this trend by enforcing the obligations of the treaty with equivalent vigour to services as with goods. The freedom to provide the most abstract and sometimes nationally sensitive industries such as banking, insurance, air travel, has been accomplished in addition to what must be the most abstract service: the sale and movement of capital. This shows that the freedom to provide services is, at last, most definitely on a par with the other fundamental freedoms of the common market.
In order to consider the effects of the provisions upon the distance education sector it is necessary to establish whether distance education falls within the definition of a service for the purposes of the Treaties. Article 60 of the EC treaty states that 'service' means 'services for remuneration, particularly activities of an industrial, commercial character, or craftsmanship and professional activities'. This is, however, a rather vague description (not a definition) and the European Court of Justice (ECJ) has been required to adjudicate upon the scope of this freedom.
The ECJ has confirmed that the treaty provisions on the freedom of services is directly effective, which allows European Union citizens to rely on such provisions against any legal persons including states and the European Union.
The jurisprudence of the ECJ has elaborated the scope of freedom to include practically all commercial services. One of the key criteria used by the court is the fact that the service is in exchange for financial reward.
Distance Education like any other industry is conducted usually for monetary reward and so fulfils the main criteria applied by the European Court of Justice in the case 147/86 Commission v. Italy [1988] ECR : 87,279, 316, 353 Frohtisina Case ECJ March 15 1986. In the light of Reimen's study (DOCS E/L 96-28) it would be to cover old ground to give an in-depth analysis of whether distance education is a service within the meaning to the EEC treaty. This will be accepted as given.
Having established that distance education constitutes a service for the purposes of the ECC treaty, what then is the position of the legislation which could be said to restrict the freedom to provide distance education?
It can reasonably be assumed that in many cases distance learning contracts will be concluded across national frontiers without anyone bothering with any special provisions in the host country. However, where a company sets out systematically to market its course in a host country (not to mention legal disputes in the host country), that country's legal provision might prove to be a problem.
This should be kept firmly in mind whilst considering the legalities of distance education below as many will partake in cross-border distance education courses without the application of these rules.
However, time and again the Court of Justice in defining the scope of the fundamental freedoms of the single market, has gone much further than the mere prohibition of discrimination. It has consistently held that domestic controls although applied equally to domestic undertakings may still contravene fundamental freedoms. So it is important to consider that the term 'freedom to provide services' goes far beyond non-discrimination and, in the view of the author, it is a condition that member states must not only prevent restrictions but facilitate the free movement
taking into account the particular nature of the services to be provided, specific requirements imposed on the person providing the service cannot be considered incompatible with the Treaty where they have as their purpose the application of professional rules justified by the general good - in particular rules relating to organisations, qualifications,, professional ethics, supervision and liability which are binding upon any person within the state in which the service is provided where the person providing the service would escape from the ambit of those rules being established in another Member state.
The EEC treaty restrictions to the fundamental freedoms of the E.U. The Court of Justice have been interpreted very restrictively. The attitude adopted by the court is well captured by Oliver Reimen's succinct observation (DOCS E/L 96-28);
A series of rulings by the Court of Justice on the recognition of authorizations has produced a variety of formulations. The way can presumably be interpreted to mean that the effect of any authorization issued by the country of provenance is weaker in proportion to the strength of feeling about the need for safeguards and control - this results in greater protection in the insurance field and is manpower provision than in the placement of artists.
This observation describes exactly the approach to situations of restriction. The system applied cannot be homogenous as the responses and sensitivities of the various Member States inevitably differ. Advocate General Van Gerven considered that it was for each state to define the 'imperative requirements of public interests' in accordance with its scale of values.
It must be kept in mind that any exceptions to the fundamental freedoms of the European Union must obey the requirements of non discrimination and proportionality. The restrictions must be the minimum imposition which will achieved the required protection of the public interest without discriminating against foreign undertakings.
Thus it will fall to be considered whether the restrictions applied by the member states are proportionate to the level of protection that should be given to the public. In this matter it is difficult to consider this question abstractly and so we will return to concrete examples.
Assuming, then, that control requirements are accepted as bona fide, a member state with a mandatory regime of control should be, on the face of it, able to call upon foreign providers to meet these levels of protection. Providers who come from states with no control system, or a non-public system, can be required to fulfil totally the mandatory controls of the host-state. The host-state is not required to consider non-public controls (though it may). In this regard by requiring all providers to meet the mandatory requisites the host-state would be applying legislation in an impartial and non-discriminatory way towards all member states and providers.
However, it is suggested that as consumer protection is the objective, a host member state could consider the controls of a non-public organisation as an acceptable safeguard and may allow the provider to practice, having satisfied itself of the provider's reputation. This would be a matter of discretion, however, and would not give rise to a legal right to practice. Additionally such a process would need to be carried out on an individual institutional level. The different situations of public/private, mandatory/voluntary systems of controls and how they interact will be examined.
Another situation which must be considered and in which the relative strengths of the vying qualitative systems would be considered is where a provider who is publicly accredited in the state of provenance seeks to provide his services in a host-state with mandatory or voluntary public controls. In such cases the emphasis will be different according to whether the host state employs a voluntary or mandatory regime.
Were the host state employs a mandatory regime the concern foremost in the mind of the provider will be that home accreditation should allow practise in the host state automatically.
In turn where voluntary public accreditation is employed in the host state the provider may not be prevented from practising (as this would be discriminatory). However the provider may seek automatic accreditation on the basis of the accreditation received in the member state of provenance. A foreign supplier must at least have the opportunity to avail of the control systems of a state, if that is the wish. To prevent this would be in contravention of Article 6 of the EEC treaty. For that reason, one finds some foreign suppliers are accredited by the BIBB in Germany; the non mandatory control system run by the ODLQC in the UK also offers this possibility.
In both these scenarios there must be an evaluation of the accreditation processes relative to each other.
As has been shown above the problem with the procedures employed by the member states is that they are all different, though they may have some essential points in common; but there are none which complement each other exactly.
So in trying to establish the relativity of the systems it would be most difficult to justify imposing more controls onto a provider who has already met public requirements is the country of origin. The licence which a member state would enjoy to derogate from fundamental freedoms to - protect the public interest in the area of distance education would not be great. Keeping in mind Reimen's observation that 'the effect of any authorization issued by the country of provenance is weaker in proportion to the strength of feeling about the need for safeguards and control', it is submitted that consumer protection in the area of distance education would not arouse enormous strength of feeling. In fact the majority of member states feel mandatory controls to be unnecessary. This situation would leave little scope for a host state to be pedantic or intransigent about accepting controls applied in other member states.
If a supplier wishes, then, to offer services in a state with voluntary or public controls and has already been accredited publicly in the member state in which thesupplier is established, he should receive automatic accreditation. This would prevent a situation of double controls. In other areas of the single market such as veterinary or food safety checks the initial control in the home member state provides clearance for the single market as whole. The ECJ, in a long list of cases, has found that double checks (in relation to goods border checks especially, but not exclusively) are a hindrance to intra-community trade. In the framework of the EEC treaty member states must only consider controls applied by public authorities of another member state.
Therefore states which operate voluntary non-public accreditation give rights of recognition in other member states, will be considerably weaker than publicly accredited bodies
So one would expect that states should give automatic authorization to providers meeting public quality controls in the state of provenance. Reimen points this out and highlights the point by referring to the proposed directive in 1972 which incorporated this idea. This would be so whether the regime was voluntary or mandatory in the state of provenance. The central point in this evaluation is that the ECJ would simply not allow much discretion to member states to insist on meeting criteria in an industry such as distance education where a qualitative minimum had already been met by a provider.
In the context of the European Union and the single market, workers will require that distance courses will entitle them to the same professional recognition. For individuals, particularly professions and trades people, the right of establishment is guaranteed by A.52 of the Treaty of Rome. This will have direct implications for the recognition of qualifications generally and in particular qualifications at a distance.
The second paragraph of A.52 highlights the positive requirements that the right of the self-employed to pursue their activities on an equal footing with the nationals of the member states in which they wish to establish. As the usual progress of the creation of a homogeneous single market the initial prohibition on discrimination has become broadened. The jurisprudence/case law of the European Court has extended the prohibition from discrimination to equal treatment.
A necessary complement to Article 57 requires the Council to issue directives for the mutual recognition of diplomas and other qualifications. There remains much to be done before the European Union applies to distance qualifications the systems to allow for their mutual recognition. This topic is dealt with in-depth in Volume 4 of this study.
Although European Union actions in this regard have been significant, there has certainly been a lack of a co-ordinated homogenous approach. The Union adopted many directives for specific areas such as, consumer credit, contracts away from business, misleading advertising and the various packaging and labeling requisites. However, distance education as an industry per se was never legislated for. The criticism levelled at European Union consumer policy at this stage was that it was not significantly integrated into the other policy areas.
The normative regime of the European Union as regards consumer protection in general may be broken into five major areas:
The Brussels' convention. This convention now a part of the aquis communitaire reflects a clear preference for the application of the law of the state of the consumer's domicile. Although it contains exceptions and foresees derogations, the general rule is that a provider remains bound by laws of the last state. Simultaneous pan-European Broadcasting may make a nonsense of the distinctive codes on advertising however, or at least may give rise to serious complications in enforcing these.
However in the absence of any European Union legislation, in the event of disputes arising, it is most lightly that the ordinary rules of conflicts of laws will be called upon to deal with the problem. The Brussels convention has radically altered the old rules and is of singular importance in these matters.
The fact that there is no European Union legislation means that the bundle of rules is scattered and unordered. To explore them intricately would require a knowledge of each and every jurisdiction within the European Union and the distinct acts concerned with the sector.
It may be said that the European Union distance education sector needs regulation to complete the single market