Abstract

Assessment of the Complaints Board
Regarding the legality of the disputed decision,
6. In Articles 2.15, 2.16, 2.17 and 2.18, the 2022-2023 PE provides that:
(...)

7. In view of the aforementioned provisions, parents already in post with the Institutions and who wish to register their child/children in one of the Brussels European Schools for the school year starting in September 2022 must therefore apply within a window: they must submit their enrolment application between 10 January and 4 February 2022, ‘failing which applications will be inadmissible and will automatically and as of right be rejected’, as stated in Article 2.15.
The right to enroll at the European Schools does not exempt the interested parties from complying with the strict deadlines set for submitting enrolment applications, which are particularly important in Brussels given that there are several European Schools, covering numerous language sections and a very large number of pupils. Splitting enrolments into two phases and imposing strict deadlines for the submission of applications are essential measures for smoothly managing the Brussels European Schools and optimising the available places; they are necessary, reasonable and proportionate to their purpose.
As the Complaints Board has clarified on numerous occasions, ‘It is therefore the responsibility of the parents affected by this provision to act with due care, taking all of the necessary precautions to ensure that the application is submitted within the deadline’ (see its decisions 19/32 (point 13), 20/58 and 20/64).
All parents who wish to enroll their child/children in the European Schools – or in other schools – must complete the necessary administrative steps while also fulfilling their work and family roles (see decision 19/44, point 10).

8. In addition, it is the responsibility of the applicants pleading a case of force majeure to justify the submission of their application during the second phase by providing evidence, upon the submission of the application, of the purely objective events beyond their control of such a nature as to unquestionably impede, against their wishes, the submission of their application during the first phase.
It should be remembered that, in this respect, the legality of an administrative decision is assessed when the decision is made, according to the elements that the administrative authority knows or should know at that point in time (see its decisions 16/24 (point 7), 16/33 (point 14), 19/21, 19/36, 19/39 and 21/21).
Force majeure is only admissible when an objective situation beyond the control of the applicants has prevented them from submitting the enrolment application during the first phase; according to the established case law of the European Court of Justice, this situation is characterized by the occurrence of unusual and unforeseeable circumstances, beyond the control of the party by whom it is pleaded, the consequences of which could not have been avoided even if all due care had been exercised (see, for example, Judgment of the Court of Justice of 5 February 1987, 145/85, Denkavit/Belgian State).
It is commonly accepted that force majeure is an unpredictable, unavoidable, insurmountable event beyond the control of the applicant that prevented him from fulfilling his obligation.
An event or situation that is the result of a voluntary action or inaction by the person pleading the case of force majeure is therefore not a case of force majeure.

9. In the present case, it is undisputed that the enrolment application was submitted during the second phase, when it should have been submitted during the first phase (Mr [...] took up his post with the European Parliament in February 2012).
In their email of 07 June 2022, the applicants admit that they could have submitted the pupil's enrolment application in the first phase, but chose not to do so given the high probability of their return to Latvia.
In his email dated 05 July 2022, the applicant wrote:
“Namely, my spouse was re-emerging from the parental leave (please see the attached document) and her employment/employer is in Latvia. As she was required to go back, we would then go as a family and at the time it was the plan. Hence the decision was, in order to not make a mess with enrolment followed by un-enrolment, to deliberately skip the first application phase. (…). ”.
They also recognize, in terms of appeal, that they were fully aware of the deadlines provided for in Article 2.15 of the PE and had decided voluntarily not to abide by them.
It is then clear that the non-enrolment of their son in the first phase is the result of their deliberate choice and a decision taken knowingly and voluntarily.
Consequently, the circumstances invoked do not have the characteristics of a case of force majeure, i.e. being beyond the control of the party pleading the case of force majeure, being unforeseeable and being of a nature as to prevent the applicant from fulfilling his obligations.
It is not disputed that Mrs [...] was expected to go back working in Latvia at the end of her parental leave, expiring on 01 May 2022 but the applicants certainly could, and should, have submitted the enrolment application in the first enrolment phase, at least as a precaution. Staying in Belgium was actually an option for them considering the applicant’s position at the European Parliament since February 2012 and the establishment of the family since years in Belgium.
On the other hand, Mrs [...] having freely decided to quit her job in Latvia, the applicants have not shown that there were objective reasons unexpectedly forcing them to change their plan and stay in Belgium.
None of the elements presented by the applicants is likely to seriously call into question the legality of the disputed decision since it dismisses the case of force majeure on the basis of Article 2.15 of the 2022-2023 PE.
In view of the above, the Complaints Board can only find that, by strictly applying the aforementioned provisions of the 2022-2023 PE, and on the basis of the elements and documents in its possession at the time at which its decision was made, the CEA could only reject the enrolment application on the grounds of its inadmissibility.

11. Concerning the second plea, the fact that certain sections do not have overpopulation problems does not exempt the applicants for enrolment in these sections from complying with the established enrolment’s rules and deadlines.
Concerning these provisions and the splitting of enrolments into two phases, the Complaints Board has already on earlier occasions considered that the right to enroll at the European Schools does not exempt the interested parties from complying with the strict deadlines set for submitting enrolment applications, which are particularly important in Brussels given that there are several European Schools, covering numerous language sections and a very large number of pupils. Splitting enrolments into two phases and imposing strict deadlines for the submission of applications are essential measures for smoothly managing the Brussels European Schools and optimising the available places; they are necessary, reasonable and proportionate to their purpose.” (its decision 21/34).
These rules, which are reasonable and proportionate, must be applied equally to all.
As stated by the European Schools, to do otherwise would amount to establishing a practice based on discrimination according to the language of pupils applying for enrolment – which is not acceptable.

12. The third plea, based on a discrimination, must be regarded as unfounded as well.
It must be reminded indeed that the principle of equal treatment can be invoked only in respect of persons who are in a comparable situation and, in particular, as regards the enrolment of pupils of the European Schools of Brussels, in respect of those subject to the requirements laid down by the same Policy of Enrolment applicable in the year in question.
The principle of equal treatment can only be infringed in identical or comparable situations (see in particular Decisions 16/53, 17/02 and 17/41, point 14) ; according to the case law of the Court of Justice of the European Union, that principle requires, save for objectively justified exceptions, that comparable situations should not be treated differently and that different situations should not be treated in the same way (see, for example, paragraph 33 of judgment C/313/04 of 11 July 2006 and paragraph 76 of judgment C/101/12 of 17 October 2013).
The elements brought by the European Schools in their submissions are sufficient to consider that the two cases do not constitute similar or comparable situations, and sufficient to dismiss the argument based on the discrimination.
It is therefore not relevant to examine whether the force majeure was justified or not in the case of Mrs [...] (in other words it is not the debate because the plea of violation of the principle of equal treatment must be considered as unfounded).

13. It follows from the foregoing that the appeal can therefore only be dismissed as unfounded, without the need to examine its admissibility.