Abstract

Findings of the Complaints Board
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On the legality of the disputed act,
10. The essential issue is the legality of the decision based on the comparative language tests.
In accordance with Article 46(1) of the General Rules of the European Schools, for the European Schools located in Brussels, it is the Central Enrolment Authority which decides on a pupil’s enrolment taking account of the enrolment policy and of the instructions issued by the Board of Governors.
Determination of the language section is governed by Article 47(e) of the GRES, worded as follows:
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11. In accordance with the settled and consistent case law of the Complaints Board, it clearly follows from those provisions that the choice of language section is not a matter for the parents alone but must result from a pedagogical assessment made by the school in the child’s best interests, in the light of the information provided by his or her parents and of the opinion of experts (see, amongst others, decisions 14/17 of 28 July 2014, 16/19 of 29 August 2016, 18/27 of 20 August 2018 and, more recently, reasoned order 19/02 of 15 March 2019).
The pedagogical assessment in question is a matter for the teachers, whom neither the CEA nor the Complaints Board can supersede, unless there has been a manifest error of assessment or infringement of the procedural rules established for the administration of tests.

12. In the instant case, the applicants question the results of the comparative tests, suggesting that the pupil was marked twice for the same skill and allege a failure to allocate marks for vocabulary range in the French test. A reading of the results does not reveal that the child was marked twice for the same skill or that there was any failure to allocate marks for vocabulary range in French. Vocabulary was marked 7 for Speaking skills (Expression Orale) and at 9 for Writing Skills (Expression Ecrite). The reports show a higher mark for Spoken Grammar, Writing Skills vocabulary and Writing Skills Grammar in French when compared to Czech and as conceded by the applicants a higher mark was attributed in the Conclusion in the French language test when compared to the Czech language test.
It is correct that with regard to certain skills the pupil attained the same superior mark in both Czech and French.
The results of those tests allowed the conclusion to be reached that Czech is not the child’s dominant language. That finding is not invalidated by the applicants’ assertion that their daughter is studying Czech each week and during the Summer period or that it is her mother tongue.

13. The conclusion was that the pupil could be integrated into the French section of the School without difficulty and that she would be capable of being educated in the Czech section in the 5th year with some difficulty.
While the applicants complaint about the regularity of the tests insofar as both were conducted for P5, it is clear that the tests were a true comparison and no case has been established calling into question their conformity with the procedural rules established for their administration, nor did they allege that the comparative tests were otherwise flawed.
Furthermore, the applicants do not base their case on any legal or regulatory provision, requiring the European Schools to repeat the test or not to take account of the results.
The CEA therefore had valid reasons to enrol the child in the French language section, notwithstanding that Czech appears to be the language of the family.

14. The Complaints Board has neither a power of control over the Schools' assessments made pursuant to Article 47 e) of the General Rules in order to carry out a comparative evaluation of the test results to which the applicants' daughter was subjected, nor a power of injunction with regard to the administration of the European Schools on this matter.
With regard to the circumstances of the applicants’ daughter, the impugned decision cannot be invalidated insofar as the Director, in defining on the basis of the comparative tests and the interest of the child that French is the dominant language as such circumstances cannot amount to particular circumstances as since the modification of Article 50 of the GRES in December, 2018 this article no longer applies in the determination of Language 1. Accordingly, the reliance by the applicants upon the earlier Decision in case 18/21 is misplaced as that decision was based upon the Rules in force at the time and prior to the modification in December 2018.
Furthermore, the impugned decision being a decision of a pedagogical nature the Complaints Board, following its settled case-law, cannot review for the purposes of annulment (see decision of the Complaints Board of 31 May, 2017, in Case 17/07, point 13) except in the case of a manifest error of appreciation or in the case of a violation of the General Rules or in the case of a new fact.
The applicants have failed to demonstrate any manifest error of appreciation or any violation of the GRES and with regard to the alleged new facts pertaining to the fact that there have been 30 pupils in the Grade 4 of the Czech section in the Brussels EEB3 School, this fact of itself is not such as to warrant annulment of the impugned decision as it must be stated that were the language tests to have established that the dominant language of the applicants’ daughter to be Czech that she would be entitled to be enrolled accordingly in the Czech section of that School.
Furthermore, reliance cannot be placed on the appreciation of third parties to call into question the decision of competent persons within the European Schools (See in particular Decisions 15/49, 16/21, 17/31 and 19/02).
In all these circumstances, the applicants case must be dismissed as being unfounded.

On the legal and other costs,
16. Article 27 of the Rules of Procedure provides that: “The unsuccessful party shall be ordered to pay the legal and other costs of the case if they have been applied for by the other party. However, if the particular circumstances of the case so warrant, the Complaints Board may order the latter party to pay the legal and other costs, or may order that they be shared between the parties. […) If costs are not claimed, the parties shall bear their own costs.”.
It is clear from those provisions, which, incidentally, are fully comparable with those in force in most national and international courts, that the unsuccessful party must, in principle, bear the legal and other costs of the proceedings. However, the said provisions allow the Complaints Board to assess on a case by case basis the conditions in which this should be applied.
In the particular circumstances of this case, and in view of the fact that the applicants have failed in this appeal, it is appropriate that they be ordered to pay the costs of the Respondents measured in the sum of € 400.