Jack Wall (Kildare South, Labour)
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Question 74: To ask the Minister for Education and Science if she has received a copy of the letter from the secretaries of the main teachers' unions here and in Britain which expresses concern at the implications of the proposed EU services directive; her views on whether education should be explicitly excluded from the scope of the directive if it is enacted; and if she will make a statement on the matter. [5755/06]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I have received a copy of the letter in question which seeks the exclusion of education from the draft EU services directive. While the negotiation of the services directive falls within the remit of the Minister for Enterprise Trade and Employment, the Department of Education and Science is in continuing contact with that Department regarding the evolution of the draft directive.

The Deputy may be aware that case law of the European Court of Justice has drawn a distinction between publicly-funded education programmes and various types of private programmes in terms of whether education constitutes a service within the meaning of the EU treaty. Where programmes of education are provided as part of the national publicly funded education system they are not considered to be services within the meaning of the treaty, even in cases where fees are paid towards the costs. However, courses given in an establishment which is seeking to make an economic profit and is financed essentially by private funds will fall within the remit of the directive.

The present draft of the services directive includes provision in Article 1 to the effect that the directive "does not deal with the liberalisation of services of general economic interest reserved to public or private entities nor with the privatisation of public entities providing services". The text also makes it clear that member states are free to define, subject to the treaty, what services should be considered to be of general economic interest and how they should be organised and financed, and what obligations they should be subject to.

I am advised that the vast majority of educational provision in Ireland, being publicly funded, will fall outside the scope of the directive. However, the Department of Education and Science will continue to monitor developments with regard to the directive on an ongoing basis.

Jan O'Sullivan (Limerick East, Labour)
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I would like the Minister to commit to the proposal that all educational services should be excluded, which is what teachers seek because of the grey areas. I am aware of the decision to which the Minister referred. For example, the TUI is concerned that schools built under public private partnerships could be brought into the scope of the directive because of the private element. There are a number of other concerns about the directive. I understand it is under debate in the European Parliament and we will probably know the outcome by the end of the week. However, the teachers' unions are concerned that the directive should be clear and specific that all educational services should be excluded so that we would not have the problems they feel could arise if education was regarded as a service for the purposes of the directive.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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As the directive is still under debate it would be premature to offer a definitive opinion.

Jan O'Sullivan (Limerick East, Labour)
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The Minister can make recommendations.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The Deputy heard the answer I gave. The Department of Education and Science has raised various issues and it appears to be satisfied that the vast majority of education is excluded because of the nature of our free education system. Obviously, we will keep developments under review. Various law cases have strengthened our understanding. In a Belgian case, it was deemed that a course taught in a technical institute to form part of secondary education provided under the national education system could not be regarded as a service. It only applies to courses provided for remuneration, in other words education is seen as part of social and cultural life rather than of economic life.

Further case law found that courses in higher education financed through public funds do not constitute services. In addition to the services directive, the case law strengthens our understanding in this regard. Although it has started its first reading in the European Parliament, I am satisfied at this stage that education as we understand it will be excluded from the directive.

Olwyn Enright (Laois-Offaly, Fine Gael)
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Would private colleges awarding degrees from other institutions, such as the ones in the UK, be included? Would private third level colleges operating outside the free education system be in the scope of the directive?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Programmes of education provided as part of a national publicly funded education system would not be considered to be services within the meaning of the treaty, even if their fees are paid. Courses given in an establishment making an economic profit and financed by private funds would fall within the scope of the directive. The directive is very confusing for everybody, which is why we must keep a close eye on how it develops.

Jan O'Sullivan (Limerick East, Labour)
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That is why the teachers' unions want this to be absolutely clear and to have education excluded, just as health services are excluded.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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We have raised a number of issues to ensure that education as we see it, as a social and cultural contribution to the country and not an economic one, would be excluded from the scope of the services directive.