Abstract

Assessment of the Chairman of the Complaints Board
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Regarding the admissibility of the appeal in summary proceedings and the request for interim measures,
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16. In this case, despite the unclear and wrong information given by the School to the applicant concerning the appeal procedures and deadlines, she lodged a contentious appeal, and then an appeal in summary proceedings which must be considered as admissible since the application was lodged separately to the main appeal and contains the de jure and de facto elements that would justify the suspension of the disputed decision and the urgency.

17. It could firstly be admitted that the urgency and the real risk of absence of effectiveness of the right to appeal are justified by the start of the new school year and by the fact that the disputed decision is affecting the school planning of the pupil.
The time needed for investigating the main procedure, and for issuing a decision on the main appeal, will not allow a switch of L2 and L3 within a short and reasonable term.
It must be paid attention to the mental health and well-being of a teenager, and the incident occurred on 07/09/2023, related by the applicant in her reply, illustrates a climate of misunderstanding and a stressful environment for the pupil.

18. Moreover, the established case law of the Court of Justice of the European Union shows that the condition relating to the 'fumus boni iuris' (apparently well-founded nature of the application or serious doubts as to the legality of the disputed decision (Article 35.2 of the Rules of Procedure for the Complaints Board) may be considered met 'when at least one of the pleas relied on by the applicant for interim measures in support of the main action appears, prima facie, not unfounded. Such is the case when one of these pleas reveals the existence of a significant legal or factual difference for which there is no immediately obvious solution and is therefore worth in-depth examination, which cannot be carried out by the judge of the summary proceedings but must be the subject of the substantive procedure' (Order of the President of the EUGC of 31 March 2022 T-22/22 R).
In this case, it should be noted that the Director’s disputed refusal is essentially motivated by an equal assessment of the pupil’s knowledge of L2 and L3: “The main reason for the decision was despite the good mark in the L2 English test [...] has a good mark in L2 German and the Class Council cannot see any pedagogical reasons for agreeing to this request” (emphasized by the Board).
This must be seen as a manifest error of assessment since a score of 98 % in English (A) is obviously not equivalent to a C note (scored 70 or 75 %) in German.
The motivation of the Class Council’s deliberations (“good pupil, good mark, many absences, no work during the last semester, no reason to change") does not justify sufficiently, except if based on this erroneous assessment, the decision to refuse the L2 and L3 change, once the pupil’s performances in English had been tested.
This finding is sufficient to consider, without the need to examine the other pleas of the appeal, that the request in summary proceedings sets out a plea that, at this stage of the investigation, must be considered likely to give rise to a serious doubt about the legality of the disputed decision.