Abstract
Assessment of the Complaints Board
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10. Insofar as the application is admissible, it is nevertheless unfounded. The decision of the CEA to offer [...] a place in the nursery class at ES BRX I in the Polish language section is lawful and does not violate the applicants' rights. The decision of the CEA is not vitiated by any error in law.
11. Article 47 e) GR stipulates that:
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12. Pursuant to Article 50a paragraph 1 GR, "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."
13. The principles of the established case law of the Complaints Board (see in particular decisions 14/17, 15/51, 17/13, 18/27, 19/51, 20/69 and, most recently, 21/28) concerning the above provisions of the GR can be summarised as follows:
a) According to the basic principle of the ES, teaching in the mother tongue/dominant language should be considered the first language insofar as such a language section exists upon enrolment of the pupil;
b) The mother tongue/dominant language is the language of which the child has the best command, in order to give him/her a solid foundation for a successful school career and subsequently to facilitate the gradual learning of other languages. This principle therefore reflects the best interests of the child (see in particular decision 16/20 – Point 24);
c) The L1 is determined at the time of the pupil's enrolment. It is, in principle, final and applies for the entire time at nursery and school;
d) The regulations of the independent GR do not give parents the right to enrol their child in the language section of their choice. This (educational) decision is the sole responsibility of the school's Director, who must determine the appropriate language section for the child in accordance with a specific procedure;
e) The choice of language section is therefore not left to the parents. Rather it is the result of an educational assessment made by the school in the interests of the child on the basis of the information provided by the parents and, in the event of any doubt or a dispute, on the basis of the results of the comparative language tests organised by and under the control of the teaching staff;
f) The educational assessment to be provided by the teachers and the Director cannot, in principle, be examined in detail or replaced by the Complaints Board. A judicial review is possible only exceptionally and only in the event of an obvious error of judgement or a procedural irregularity (see decisions 17/13, 19/51 (Point 8), 19/55 (Point 7), 21/28 (Point 11 et seq.);
g) The individual schools have a certain degree of autonomy in organising the language tests. However, the requirements for comparability of the language tests must be met. The language tests must be conducted such that an objective comparison of the results is possible (decisions 17/23 and 21/28);
h) To ensure the comparability of the language tests, the ES have established the "Regulations for the organisation of language tests in the nursery cycle and primary cycle 1", enclosed as Appendix I 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)" and approved by the Joint Board of Inspectors on 10 October 2018 (Ref.: 2018-09-D-23-de-2).
14. In light of the above regulations and the principles developed by the Complaints Board, the decision of the CEA of 6 May 2022 cannot be contested from a legal standpoint. On the basis of the comparable language tests conducted without any procedural irregularities, it should be assumed that [...]’s mother tongue/dominant language is Polish pursuant to Article 47 e) GR.
15. For the assessment of language skills, the time of the application for enrolment and the language test conducted is decisive as, according to the provisions of the GR, the ES is solely responsible for determining the language L1 at the time of enrolment (see, for example decision of the Complaints Board 21/39). Contrary to the view of the applicants, who claim that [...] learns (French) very quickly, the fact that knowledge of another language becomes dominant during the "school life" of a pupil is just as irrelevant as the other circumstances that the family lives in Belgium or that the applicants may be required to move for professional reasons and [...] would therefore be required to change to a different school system in which no teaching is provided in Polish as L1. Finally, reference to a possible violation of the educational rights of the applicants – also having regard to Article 24 paragraph 2 EU-GRC – does not apply in this respect in order to justify a different result, as the dominant language is established from an educational standpoint and therefore at the discretion of the school's Director and not of the parents (Article 47 e paragraph 5 GR). The result of the comparative language test forms the decisive basis for the L1 language of which a child has the best command and, looking further ahead, which language offers the best conditions for the child's subsequent school career.
16. There are no grounds for deviation pursuant to Article 47 e) paragraph 3 GR, as [...] has indisputably not spent two years in the primary or secondary cycle of a school system in a different language.
17. Furthermore, the principle of regrouping of siblings, which is not expressly stated in the GR but is developed from the case law of the Complaints Board and adapted from the provisions of the PoE (see Article 8.2.),does not justify admission of [...] in the nursery cycle of ES BRX II in the French language section because the condition stipulated in Article 8.2.1 letter c) PoE, that the language section (or satellite class) of the pupil for whom the application is being made exists, must be met. In the case at hand, ES BRX II does not have a Polish section.
18. Due to the lack of a Polish section, the child cannot be assigned to the French language section solely for the purposes of regrouping the siblings, with the other dominant language/mother tongue being ignored. A derogation from the statutory basic principle set out in Article 47 e) paragraph 1 GR is only possible pursuant to Article 47 e) paragraph 3 if the child has already been enrolled for a longer period of time in a different school system. The GR do not provide for other particular circumstances justifying a deviation from the basic principle of the mother tongue/dominant language. This means that a regrouping of siblings can in no event justify the pupil applying for enrolment being taught in a language other than the dominant language. Accordingly, the European Schools rightly refer to the fact that the welfare of every pupil, including his/her academic development, must be taken into consideration in that it must be ensured that he/she is educated in a language of which he/she has sufficient or the best command in order to be able to follow the school programmes successfully. This can therefore lead to siblings being taught in different language sections because they have different language skills in different languages as a result of different circumstances at home and different educational backgrounds (also at different periods of time). The Complaints Board has therefore already determined in earlier decisions that the mere fact that a brother or sister of a pupil is taught in a different language does not constitute a particular circumstance that need be taken into account by the Director pursuant to Article 50 GR in order to deviate from the basic principle of admitting the pupil to the language section corresponding to his/her mother tongue/dominant language (cf. decision of the Complaints Board 14/15; see also decisions of the Complaints Board 22/05 and 22/20).