Abstract

Findings of the Complaints Board
On the substance of the Appeal,
18. In the first place, it must be noted that the decision of the Management of the Brussels I European School whereby it considered it necessary, in accordance with Article 47 e) of the General Rules of the European Schools (hereafter the General Rules), to verify the linguistic skills of the child in order to determine the child’s mother/dominant language has not been contested. What is at issue is the manner in which such verification was carried out.

Findings of the Complaints Board
6. The principle of sibling grouping has been an important feature of the rules governing the enrolment of pupils in the different Brussels European Schools since the creation of the Central Enrolment Authority in 2006.
However, on several occasions over the last decade, its scope has been limited. As explained in the relevant Guidelines, adopted annually by the Board of Governors, these changes were each time deemed necessary in view of the growing overcrowding of the European Schools in Brussels.
The Complaints Board’s case-law makes clear that it is open to the Central Enrolments Authority, which introduced the principle of sibling grouping into its rules, to limit the scope of application of this principle in certain situations provided that these limits are established in a proportionate manner, and under precise conditions, bearing in mind the balance which must be sought between the interests of the pupils and their families, on the one hand, and the interest of the organisation and management of the schools, on the other (see, for example, decision 23/11 of the 31st of August 2023, points 9 and 13).

8. As regards the principle of sibling grouping, the Complaints Board finds that the limitation of the principle in this case resulting from the application of the measure contained in Article 5.4 of the Enrolment Policy reflects a fair balance between the interests of the pupils and their families, on the one hand, and those of the organisation and management of the School, on the other and, consequently, cannot be considered to be disproportionate. It is always regrettable when siblings cannot be assigned to the same site of a School but it has to be recognized that the above measure is indeed necessary to achieve an important policy objective designed to alleviate the overcrowding problem at the Brussels schools, namely the consolidation of the nursery and primary cycles of some language sections of European School Brussels I at the Berkendael site.
The Complaints Board notes that the applicants did not invoke any particular circumstances in their enrolment application, in accordance with Article 8.5 of the Enrolment Policy, in order to obtain a derogation from the general rule set out at Article 5.4 of this document, and considers that the practical difficulties which they do mention in these proceedings (...) would, in any event, have had to have been excluded under Article 8.5.3 of the Enrolment Policy.

22. Contrary to the circumstances referred to in Case 21/39 where the tests administered to a very young child of 4 were carried out without a break, in the instant case the tests were carried out with a break in excess of 15 minutes and the duration of the tests was 25 minutes for Italian and 30 minutes for English. There is no indication that the tests were not carried out in like circumstances or in any irregular manner. In addition, while the Applicants refer to the Decision of the Complaints Board in Case 16/22 where the tests were carried out in different schools on different occasions in circumstances which were not comparable, no such circumstances have been shown to exist in the instant case. Accordingly, it must be concluded that the unease experienced by the child in the instant case has not been shown to have resulted from failing to carry out the language tests in question under similar conditions. Accordingly, it must be concluded that the Applicants have failed to show that the manner in which the tests were administered to the child failed to meet the requirements of Article 47(e) of the General Rules or of the 'Regulations for the organisation of language tests in the nursery classes and primary year 1' referred to above.

9. Finally, the applicants’ argument according to which [...] would have had to have been awarded a place at the Uccle site if [...] was already there, in accordance with Article 8.2.1 of the Enrolment Policy, is based on a hypothetical factual situation which did not occur and is therefore not relevant to the legality of the contested decision.
(...)

23. With regard to the second and third grounds advanced by the Applicants it must be emphasised, as referred to above, that the pedagogical assessment for which teachers and the Director are responsible cannot in principle be reviewed in greater detail or replaced by the Complaints Board. A judicial review is possible by way of an exception and is restricted to the existence of a manifest error of assessment or a procedural irregularity. The circumstances relied upon by the Applicants whereby the child uttered words in English during the Italian language test and did not utter words in Italian during the English language test cannot be considered as demonstrating a manifest error of assessment or any procedural irregularity in the assessment carried out in relation to the child and in these circumstances the Complaints Board can only reject the second ground referred to by the Applicants. While the Applicants refer to the marks attributed by the teachers and suggest that they were not comparable, the Applicants have failed to show any manifest error of assessment in the reports of the language tests referred to and no procedural irregularity has been demonstrated to have occurred.

10. In conclusion, the Complaints Board finds that the Central Enrolment Authority acted in accordance with the applicable rules in assigning to the Berkendael site and that the examination of the arguments put forward in this case does not disclose an illegality affecting the relaxation of the principle of sibling grouping contained in Article 5.4 of the Enrolment Policy.
As mentioned above, at point 7, the Complaints Board notes the Schools’ undertaking that, for the 2024-2025 school year, the necessary practical solutions will be found to ensure that the Brussels I European School will be able to organize Maltese lessons for the pupils of both sites, in accordance with the Language Policy, and also recalls the undertaking given at the hearing to favour efficient and proportionate solutions in examining the different possibilities open to it.
For these reasons, the application must be dismissed.

24. With regard to the fourth ground advanced by the Applicants to the effect that the child’s elder sister is already schooled in an English language class in the European Schools, as has been correctly observed by the European Schools, the Complaints Board has already recalled in its case law that the mere fact that the brother or sister of a pupil be educated in another language section cannot be considered as a particular circumstance which, in accordance with Article 50 of the General Rules, could be taken into account by the Director to derogate from the admission principle of the pupil into the language section corresponding to his/her mother/dominant language. The presumed consequences referred to by the Applicants cannot, even if established, justify setting aside the impugned decision.

25. Having regard to the above it must be concluded that the Applicants have failed to establish any ground of appeal warranting the setting aside of the impugned decision.