I met with Mr François Moyse yesterday to discuss the practicalities of how a legal action can be brought forward. It seems that recent case law (Recours 10/02 – i.e. a case heard in 2010) has opened up the possibility of an action before the Chambre de Recours on the principle that applicants ought to have access to an effective remedy. Should our action be held inadmissible again, there is an appeal on a point of law (i.e. admissibility) to the ECJ.

There are a number of reasons why our case is stronger now. First, Recours 10/02 has created a precedent. Second, our cause of action is stronger: in 2004 the parents’ claim was held to be inadmissible because there was nothing in the regulations to suggest that parents could challenge a decision relating to the creation of schools. We are not challenging the ‘creation’ of the school, but an administrative policy that results in discrimination.

We also discussed the possibility of bringing a parallel action before the ECJ based on challenging an administrative decision made by the Commission.

The next steps are roughly as follows:

(1) Mr Moyse needs to carry out an in-depth analysis of the procedural possibilities, as it is a complex case. It seems that it is advisable to have a range of applicants, but including some of those who have arrived very recently and who are sending their children to the European School for the first time, with no option being offered other than Mamer. He needs to do further research into the cause of action and the legal basis.

(2) A letter needs to be drafted to be sent to the Board of Governors and possibly to the Commission, formally seeking a review of the decision regarding the vertical split and requesting that this be replaced by an approach favouring the horizontal division of the children. This letter is needed in order to provoke an administrative decision that can then be challenged in the Chambre de Recours and possibly in the ECJ.

The time line that he suggested was along these lines (i) remainder of June/beginning of July for further research and instruction; (ii) letter to Board of Governors and Commission to be sent in early July; (iii) await response; (iv) upon receiving negative response, draft proceedings during August; (v) issue proceedings in September.

I asked whether we were exposing ourselves to any costs in the event of losing the action. Mr Moyse said that the actions in the Chambre de Recours and in the ECJ would be defended by officials, so effectively no costs would arise.

Postponing the opening of the school

Mr Moyse acknowledged that the above time line and proposed course of action would do nothing to prevent the school being opened. I asked whether there might be the possibility of an injunction. He said he would study the Chambre de Recours regulations, but thought it unlikely. I referred to the discussion within the campaign regarding the possibility of challenging the transport plan, but he felt that was political action that should be kept separate from the legal action.

It is up to us to decide what challenge we might want to bring before the relevant transport/government authorities. Action to involve MEPs, trade unions, staff committees, the media etc is also open to us, but should be kept separate from the careful preparation of our legal case.

I asked about Mr Moyse’s own costs. He estimated that for researching a complete procedural analysis, taking further instructions, drafting the letters to the Board of Governors and Commission, deciding on the correct cause of action and competent courts, legal basis etc the cost, up to the point of issuing proceedings, would be approximately EUR 2500.

Last Friday I paid Mr Moyse’s invoice for work completed in May (initial legal advice, taking instructions and advising by email etc), which came to EUR 1155 + VAT i.e. approximately EUR 1300. Our last bank statement brought our balance to approximately EUR 2800 (I will post the invoice and last statement on the webpage this week). That means we have EUR 1500 and need to raise another EUR 1000 for the next stage of the legal action

I believe we should now take the next step of preparing a solid legal action that may, by itself, not stop the school from opening, but which offers light at the end of the tunnel and the opportunity to enforce a fair, horizontal system at the school in the coming years. I also believe that it is important to have such an action under way for the purposes of any negotiations we may wish to conduct with the authorities.

In practical terms I would suggest that new members and supporters who want to contribute to this campaign could contribute what +28 of us have already i.e. approximately EUR 100 (or EUR 75 for single income families, EUR 125 for duel income families). The rest of us might think of contributing one half of what we have already paid towards the campaign.

Campaign account details:
IBAN: LU62 0019 3855 3573 8000
BIC: BCEELULL
Account Holder: MACKENZIE/E.S. NON-DISCR CAMPAIGN

I look forward to meeting any of you who can come along to drinks at the Brasserie de Kirchberg on Thursday evening.

Gordon