Abstract
II. Findings of the Complaints Board
6. The admissible appeal is successful.
7. There is no doubt about the appeal's admissibility, in so far as it seeks annulment of the decision of the Director of the ESF of 7 June 2021. However, the Complaints Board cannot issue any further orders.
8. The appeal is well-founded. The decision of the Director of the ESF to assign to the Spanish section of the ESF for the second year of the nursery cycle is not lawful within the meaning of Art. 47(e) GR. The conduct of the comparative tests was not free of irregularities.
9. Art. 47(e) GR specifies the following:
(...)
10. In accordance with Art. 50a.1 GR, " 11. The only case in which an appeal may be lodged by the pupil's legal representatives against decisions taken on an application for enrolment shall be when it has been demonstrated that there has been a procedural irregularity or when a new and relevant fact needs to be taken into consideration."
11. The principles of the consistent and settled case law of the Complaints Board (see in particular decisions 1417, 15/51, 17/13, 18/27, 19/51, 20/69 and most recently: 21/28) on the above provisions of the GR can be summarised as follows:
a) According to the fundamental principle of the ES, mother tongue/dominant language should be taught as first language, in so far as such a language section exists at the time of enrolment.
b) Mother tongue/dominant language is the language of which the child has the best command, in order to give him or her a solid grounding for a successful school career and subsequently to facilitate the gradual learning of other languages. This fundamental principle therefore corresponds to the child's well-understood interests (see in particular decision 16/20 – point 24).
c) Language L1 is determined at the time of the pupil's enrolment. It is definitive in principle and is applicable throughout the nursery cycle and the whole of schooling.
d) The provisions of the autonomous GR do not entitle parents to enrol their child in the language section of their choice. Responsibility for this (pedagogical) decision lies solely with the school's Director, who has to determine the appropriate language section in accordance with a prescribed procedure.
e) The choice of language section is thus not left to parents. Instead it is the result of a pedagogical assessment, which is carried out by the school in the child's interest, taking into consideration the information provided by the parents, and in the event of doubt or of dispute, the decision being taken having regard to the results of comparative (compatible) language tests organised and supervised by teachers.
f) 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 (see decisions 17/13, 19/51 (point 8), 19/55 (point 7), 21/28 (point 11 et seq.)).
g) For the purposes of organisation of language tests the individual schools have a degree of autonomy. However, the prerequisites for comparability of language tests have to be fulfilled. Language tests must be conducted in such a way that an objective comparison of the results is possible (decisions 17/23 and 21/28).
h) In order to ensure the comparability of language tests, the ES drew up 'Regulations for the organisation of language tests in the nursery classes and primary year 1', which are appended to the document 'Establishment of a harmonised procedure for the organisation of language tests (Article 47(e) of the General Rules of the European Schools)' as Annex I and were approved by the Joint Board of Inspectors on 10 October 2018 (Ref.: 2018-09-D-23-en-2).
12. Having regard to the aforementioned provisions and to the fundamental principles recognised by the Complaints Board, the decision of the Director of the ESF of 7 June 2021 to determine Spanish as [...] dominant and thus first language can be classified as procedurally flawed. The conduct of the two language tests shows procedural and formal defects, which do not lead to sufficient comparability of the results.
13. It is true that many of the circumstances invoked by the applicants are not applicable to call the ESF's decision into question. Thus, in particular the parents' wish or what they regard as 'best' for their child's wellbeing, also having regard to Art. 24.2 EU-FR Charter, plays no role in this connection (see also, for example, decisions 11/05, 13/61 and 14/17), as this determination has to be made from the pedagogical viewpoint and thus is the "responsibility of the school's Director" (Art. 47(e), paragraph 5 GR). Correspondingly, the misgivings about the contents expressed by the applicants and their contestation of the overall result are also judicially irrelevant according to the Complaints Board's case law, as already because of the concrete examination situation during the comparative tests and the subsequent case by case pedagogical assessment, they cannot in principle be the subject of a judicial review by the Complaints Board (decisions 12/23; 12/31; 21/28). Nor can the results of the situational compatible language tests be called into question by a third party's certificate or testimony, and hence by other (educational) establishments or preschool and other teachers (see also in this respect decision 16/21; 21/28), since according to the provisions of the GR, the ES alone is responsible for determination of L1 at the time of enrolment. Accordingly, the document from [...] kindergarten produced by the applicants cannot influence the decision on determination of the L1 language. Finally, the other circumstances, namely the fact that the family lives in the Federal Republic of Germany and is immersed in German culture and a German environment and the fact that brother is already in the German language section at the ESF, cannot lead to a different determination of the 'dominant' language in relation to the test result either. The result of the compatible language test forms instead the decisive basis for determining of which L1 language the child has the best command and, looking further ahead, which language is therefore the best prerequisite for the child's subsequent school career.
14. The language tests must, however, be compatible and free from procedural irregularities, so that they are invested with great validity and importance in determining the L1 language. But in the case on which a decision has to be made, this requirement is not fulfilled. Since the child to be tested, [...] was only four years old and his ability to concentrate was limited, the two language tests, which were carried out immediately one after the other without a necessary, sufficient interruption or break, are not comparable.
It is true that the Director of the ESF rightly arranged for a comparative language test within the meaning of Art. 47(e), paragraph 6 GR to be administered on 2 June 2021, because in the admission application, on which the matter is essentially dependent in accordance with the provisions of the GR, the family's life circumstances as disclosed led to doubts arising as to the dominant language; thus the applicants stated, amongst other things, that they speak 'Spanish' with their son [...] and that they have Portuguese and US nationality, but not German nationality.
There were, however, procedural irregularities in the language tests conducted on 2 June 2021. Criticism must be levelled in particular at the fact that the tests with four-year-old [...] were conducted, without a break or a significant interruption, one after the other, for 60 minutes – thus for longer than the duration of a normal lesson. That is something about which the applicants rightly complain. It is admittedly true that in accordance with the aforementioned 'Establishment of a harmonised procedure for the organisation of language tests', the comparative tests can be organised on the same (half-)day. Although the 'Regulations' do not therefore expressly rule out testng consecutively, it is self-evident and obvious that with a change of language and another test administered to a four-year-old, lack of concentration will arise, both at the beginning (on account of the change – also of the contact persons as testers and the changed circumstances) and also at the end, because of the 60-minute duration and therefore an interruption or a break of sufficient duration must always take place between the two tests. No general rule can be conclusively formulated for the concrete duration of the break, since the time for a sufficient break for regeneration and renewed concentration must be assessed and decided in each individual case by the teachers, taking into account the child's development according to pedagogical aspects. However, an orientation towards the length of a - large - school break will be appropriate and should therefore regularly be at least 15 minutes. A corresponding interruption between the tests apparently did not take place in the case of the decision.
The teachers' test reports, particularly the report on the German test, are not very meaningful in that respect. Formally, it already does not contain any reference to [...] behaviour during the test in general (environmental influences, such as test room, means used, parents' presence, etc.) and in particular (for example, whether the child was focused, distracted, nervous, attentive, tired or 'fidgety'), which may possibly influence how a test proceeds. In the case on which a decision has to be made, particular indications as to the testing environment is missing; for example, there is no information as to whether both tests took place in the same room (where they were, on account of the 'Plexiglass screen' between the teachers who conducted the German test) or whether there was a change of room and [...] was accompanied by his parents on the way there, something which in the case of a four-year-old, can perfectly well lead to additional pressure, but also any indication of a time interruption between the tests. As any references to this are missing on the testing teachers' assessment sheets, the Complaints Board had to assume that the information about times on the forms was correct and that the applicants' claim is correspondingly true, the tests having been done in the period from 8.30 to 9.30 without a break or sufficient interruption.
15. This procedural irregularity is already on its own of such a nature that the June 2021 decision of the Director of the ESF should be classified as unlawful, even though the considerations invoked by the applicants otherwise might be inadequate for that purpose. It should be borne in mind that whilst it is true that the Complaints Board does not have unlimited jurisdiction, in a case on which a decision has to be made, which would allow it to supersede the ESF or to issue injunctions to it, it is incumbent upon the ES, in accordance with Article 27.6 of the Convention defining the Statute of the European Schools, to implement the decision communicated to it. It is therefore a case of the ES needing to reconsider the applicants' request, which is the subject of this appeal, in the light of the grounds for the decision, which has led to annulment of the ESF's decision, and to draw the necessary conclusions from this judgment, having regard to all the information available to it at this point, whereby a new comparative test should be offered, taking into consideration the defects criticised.