We sent this letter together with 62 parent signatories to Board of Governors of the European schools on 27.07.2012:
__________________________________
Sir ,
We
(62 parent signatures)
are all parents of children who are going to attend the European School Luxembourg II in Mamer from the 2012-2103 school year.
We wish to protest against the system of “vertical splitting” which has been maintained, despite our protests, by the Directorate of the European Schools and that we find inappropriate, contrary to the interests of our children and discriminatory.
As a reminder, in the Council Decision of the European Schools of 21 and 22 October 2003 to “maintain a vertical structure” for the Schools Luxembourg-I and Luxembourg-II, the Supreme Council voted against a horizontal structure that would assign the maternal and primary cycles to one of the two schools and the secondary cycle to the other. The Council, as aforesaid, chose to maintain a vertical structure in which each of the Luxembourg Luxembourg-I and Luxembourg-II schools would have three levels of education, that is to say, kindergarten, primary and secondary.
A decision of that Supreme Council of 12-15 March 2004 has divided the language sections between the two schools as follows:
- At the School of Luxembourg I-sections will be assigned German, French, English, Spanish, Dutch, Swedish, Finnish, Portuguese, Polish, Lithuanian, Latvian, Estonian and Maltese.
- At the School of Luxembourg II-sections will be assigned German, French, English, Danish, Greek, Italian, Hungarian, Czech, Slovak, Slovenian and Cypriot.
An appeal by parents against, among others, decisions of the Supreme Council challenged this and was met with a rejection by the Secretary General of the European Schools and then by a declaration of incompetence of the Appeal Board (Board of Appeal of the European Schools, Report with reasons by the President, November 24, 2004). The lack of competence of the Board of Appeal of the European Schools was based, according to it, on the fact that its jurisdiction is strictly limited to disputes referred by the Convention defining the Statute of the European Schools and that can only be exercised in conditions and as determined by the implementing legislation determined by the provisions of the Convention; however, the implementing legislation does not determine the terms and conditions of actions such as those brought in this case, and hence the lack of competence of the Appeal Board.
This interpretation, however, no longer applies. Indeed, conscious that this lack of competence to examine the decisions of the Supreme Council was likely to impair the right to an effective remedy for applicants, the Appeal Board, in another case, made a major departure from precedent. In its own words, “when a decision of the Supreme Council, even if it is of a general or regulatory nature, directly affects a right or remedy that the Convention defining the Statute of the European Schools recognizes for a class of persons which is distinguished from all others concerned, and it is not certain that such person or group is able to appeal against an individual decision on the basis of such a decision, it must be regarded as constituting a measure adversely affecting that person or category within the meaning of Article 27, paragraph 2, of the Convention. The Appeal Board is, therefore, in principle, competent to rule on an appeal against such an act. ”
The Chamber also rightly pointed out in the same decision the importance of ensuring adequate judicial protection against acts of the Supreme Council, in that this right “found expression among the fundamental rights recognized by the European Convention of Human Rights, and the number of general principles of law of the European Union “(Board of Appeal of the European Schools, decision of July 22, 2010).
Therefore it is correct that one must recognize the right of the undersigned parents to complain to you of this discriminatory situation and ask you, Mr. Secretary General, to end this iniquitous situation.
Indeed, the refusal of the Directorate of the European Schools to change the mechanism of distribution of children violates the legal foundations of the European Schools and the standards of European Union law. There are significant number of violations of those standards which will be referred to below.
I. Violation of the Convention defining the Statute of the European Schools.
The Convention defining the Statute of the European Schools insists largely on the fact that such schools are for the education together of children of staff of the European Communities.
According to the preamble of the Convention the European Schools were created for a very specific purpose, namely, “the joint education of children of staff of the European Communities for the proper functioning of European Institutions”.
The preamble immediately adds that “the European Communities are anxious to ensure the joint education of these children.”
It is also further clarified in Art. 1 of the Convention that “the mission of the schools is to educate together children of staff of the European Communities.”
The text of the Convention could not be more clear as to the task of the European Schools.
Thus, the decisions of the Supreme Council leading to a division into language sections between the two Luxembourg-I and Luxembourg-II schools so that neither of these schools includes all of the sections, are contrary to the very spirit of the Convention and clearly violate Art. 1. Indeed, these decisions lead to a clear separation of pupils on both sites according to their respective language sections, and thereby prevent the achievement of the goal of education in common, an aim that is at the very origin of the creation of the European Schools. These decisions thus ignore the purpose and essence of those schools.
Consequently, they must be cancelled in that they are contrary to the Convention defining the Statute of the European Schools.
II.Non-compliance with standards and fundamental principles of the European Union
The decisions of the Supreme Council that are the subject of such proceedings are contrary to many principles and legal norms of the European Union.
Principally, these are clearly discriminatory. These decisions are indeed the source of differential treatment and a clear breach of equality between persons located in the same situation. When an authority has to treat persons or classes of persons unequally, it can only do that on the basis of objective criteria. Failure to observe this principle constitutes discrimination.
The European Schools system is a “sui generis” system making, through an international agreement, a form of cooperation between Member States and between them and the European Union to ensure, for the proper functioning of European Institutions, the education together of children of staff of these institutions.
The European Schools are therefore recognized as being connected by European Union law and have affirmed the application of the standards arising from this (ECJ, judgment of 14 June 2011, Paul Miles and Others c / European Schools, C-196/09; Opinion of the Advocate General delivered on 16 December 2010 in Case C-196/09). It is also for this reason that the Board of Appeal of the European Schools had made a reference for a preliminary ruling from the Court of Justice of the European Union to ensure the uniform interpretation of EU law and to ensure that its decisions were compliant (ECJ, judgment of 14 June 2011, Paul Miles and Others v European Schools, C-196/09).
Therefore the decisions of the School Directions above must be cancelled in that they clearly violate the law of the Union and its most fundamental principles that the European Schools are intended to comply. All of these violations will be demonstrated easily in what follows.
– Violation of the Staff Regulations of the European Communities.
The European School pupils are mostly the children of EU officials.
Pursuant to art. 1d 1. of the Staff of the European Communities, it is prohibited in the application of those regulations “any discrimination, such as discrimination based on sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. ”
It seems clear in this case that the decisions violate this provision. Indeed, the decision to assign the children of some European officials to the Luxembourg II school on the sole criterion of the spoken language is not without consequences on the situation of the latter. While European officials are in a comparable situation as regards the necessary schooling for their children in Luxembourg, they have not, however, benefit from the comparable treatment which they can legitimately claim. Indeed, a departure from equality between the treatment to employees whose children go to school in Luxembourg-I and those whose children go to school in Luxembourg-II is clearly present in that some will be forced to take up residence near the school in Mamer, or to set up logistics because of the remoteness of the new school.
Moreover, discrimination is also based on the criterion of wealth. It is obvious here that European officials whose incomes are lower will find themselves more affected by the decisions of the Supreme Council than those officials who receive high incomes. Indeed, it can not be easy for employees on low incomes to settle near the new site. They therefore find themselves having to make a choice between heavy sacrifices and economic well-being and safety of their children.
In this case, no objective reasons for this unequal treatment is given, nor can they be given.
– Violation of the Charter of Fundamental Rights of the European Union.
According to Art. 21 of the Charter of Fundamental Rights of the European Union:
- “Is prohibited discrimination based on sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a minority national minority, property, birth, disability, age or sexual orientation.
- In the scope of treaty establishing the European Community and the Treaty on European Union, and without prejudice to the provisions of those Treaties, any discrimination based on nationality is prohibited. “
In this case, the European School pupils are subject to discrimination based on language and on their nationalities or ethnic origins, these criteria having a clear link between them. Indeed, deciding arbitrarily to assign a category of students to the remote and less well served site of the Mamer school based only on their membership of one language section rather than another, the Board applies to students who are in similar situations, as children of European officials, unjustified unequal treatment.
According to art. 22 of the Charter of Fundamental Rights of the European Union, “the Union shall respect cultural, religious and linguistic diversity.”
The disputed decisions violate at the very least the linguistic diversity that exists within the Union in that they are content to disadvantage categories of students assigned to Mamer, without explaining why the language of one Member State rather than another should open the right to continue attending the school located at Kirchberg.
In addition, pursuant to art. 24 of the Charter:
- “Children are entitled to the protection and care necessary for their well-being. They may express their views freely. This is taken into consideration on matters which concern them in accordance with their age and maturity.
- In all actions concerning children, whether taken by public authorities or private institutions, the best interests of the child shall be a primary consideration. “
Clearly in this case the disputed decisions of the Council disregard these provisions. Indeed, by making a vertical separation between the two schools, pupils of nursery and primary sections are forced to travel daily to the site of the Luxembourg-II school in Mamer by public transport. It is quite legitimate to consider that such an organization for young children is inappropriate and even dangerous. It is not surprising that parents are indignant against decisions that are so unreasonable. This organization clearly violates the right of children to the protection and care necessary for their well-being. It can not be defended in this case that the best interests of children assigned to Luxembourg-II is a primary consideration. The contested decisions tend, on the contrary, to endanger the young students.
Art. 41 of the Charter of Fundamental Rights also enshrines the right to good administration. In this case, the good administration would require nothing more than to make a horizontal separation between the two schools. There is clear evidence that obstinate retention of the vertical separation is inappropriate and even dangerous for students, and especially for infants. The choice to assign the nursery and primary cycles to Luxembourg I and the secondary to Luxembourg -II would address the problems identified. The secondary students with a higher age, being assigned to Luxembourg-II seems far more reasonable. These are actually more able to be transported safely to a site so remote and do not suffer as much the ime constraints that such organization requires. This solution would also keep the joint education of children of same age regardless of their language or nationality.
– Violation of the Treaty on the Functioning of the European Union.
According to art. 18 TFEU, “in the field of application of treaties, and without prejudice to special provisions contained therein, any discrimination on grounds of nationality.”
The European Schools affirm that they apply the TFEU. Yet, as has already been amply demonstrated, the refusal of the Directorate of the European Schools based on decisions of the Supreme Council are clearly discriminatory. Indeed, while the link between nationality and language section of the European School pupils can not be denied, there is every reason to note that depending on their nationality, some students are placed in a distinctly less favorable than others. The choice to maintain a vertical separation therefore contravenes s. 18 TFEU.
– Violation of the European Convention on Human Rights.
Pursuant to art. 14 of the European Convention on Human Rights, “the enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ”
In this case, the contested decisions violate s. 14 of the Convention in that they hamper the enjoyment of other rights and freedoms set forth therein, such as the right to respect for private and family life and home, mentioned in art. 8.
The art. 1 of Protocol No. 12 to the Convention of Human Rights refers to this general prohibition of discrimination. This article provides that:
- “The enjoyment of any right provided by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or opinions, national or social origin, the belonging to a national minority, property, birth or other status.
- No one shall be subjected to discrimination by any public authority whatsoever on the ground such as those listed in subsection 1. “
It appears from all the foregoing that the contested decisions prevent the enjoyment of many rights for discriminatory reasons based on language and national origin. These decisions contravene Art.1 Protocol No. 12 to the Convention on Human Rights.
In conclusion, the discrimination created by this situation, that the refusal of the Directorate of the European Schools to change or impose change, go against all sources of law set out above. This results in a departure from equality that is unfounded, unjustifiable and intolerable. We urge that these decisions be set aside and that it is still possible for the option of the horizontal separation be seriously reconsidered.
Pending your response, please, Mr. Secretary General, to please accept the expression of our most distinguished sentiments.