Abstract
Findings of the Chairman of the Complaints Board acting in summary proceedings
Admissibility of the application for interim measures,
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11. Those provisions shall also lay down the conditions under which an application for suspension of operation or other interim measures may be granted: where urgency so justifies, where there is evidence of a means capable of creating, at the stage of the investigation, serious doubt as to the lawfulness of the contested decision and where there is, in the circumstances of the case, a real risk that the right to bring proceedings will not be effective.
Those three conditions are, in accordance with their wording, cumulative and not alternative.
Furthermore, if they are met, the taking into consideration of the interests in question must not preclude the measure applied for.
It may also be added, with respect to the nature of and the need for the measures requested, that ‘the very purpose of summary proceedings, as organised by the aforementioned provisions of the Rules of Procedure, is to allow, in all cases where the urgency of the matter so justifies, expeditious suspension of an administrative decision contested by the applicant or any other interim measure justified by the circumstances’ so as thus to ensure the effectiveness of the decision on the substance of the appeal (see orders 14/37R, 16/50R (points 13 to 15), 19/51R (point 9), 22/37R (point 16), 22/42R (point 13) and 23/40R).
12. In the present case, the formal conditions for ensuring the admissibility of the application for interim measures are met, since it was presented separately from the main appeal and contains the elements, of fact and of law, intended to justify the measure applied for and the urgency.
It remains to be examined whether the substantive conditions for interim measures are met in the present case: urgency, real risk of ineffectiveness of the right to bring proceedings and serious doubts as to the legality of the contested decision.
13.
Urgency and real risk of effectiveness of the appeal
The European Union General Court recalled in Order of the President of 30 March 2022 (T-125/22 R), '[…] urgency must, generally, be assessed with regard to the present need for an interim ruling in order to avoid serious and irreparable damage being incurred by the party requesting the provisional protection. It is the responsibility of this party to provide evidence that they cannot wait until the end of the substantive appeal procedure without suffering serious and irreparable damage (see Order of 14 January 2016, AGC Glass Europe and Others/Commission, C-517/15 P-R, EU:C:2016:21, point 27 and case law cited)'.
In the present case, urgency is demonstrated by the pupil’s health conditions, reflected in the medical reports from which it can be inferred an unfavourable development during the last recent weeks and the need to adopt measures, which requires a swift decision, even if provisional, to prevent the situation from becoming more serious, which could also explain a request for transfer to another School once the school year is well advanced.
That concern to avoid negative consequences for the child’s health, as well as the nature of his illness, satisfies the condition relating to the real risk of effectiveness of the appeal.
14.
Serious doubts on the legality of the disputed decision
Concerning the existence of any serious doubt concerning the legality of the decision, it should be recalled first that administrative appeals and contentious appeals are non-suspensive in nature (Article 66.3 of the General Rules of the European Schools and Article 16 of the Rules of Procedure for the Complaints board respectively), since acts adopted by bodies of the European Schools benefit from a presumption of legality (Interim Order 22/42 R, point 17).
As the President of the European Union General Court recalled in his Order of 31 March 2022, Case T-22722 R), that 'The Judge hearing applications for interim measures can only exceptionally order the suspension of an act contested before the Court or prescribe provisional measures'.
It should also be remembered that the judge giving a ruling in summary proceedings cannot express considerations on the substance that might prejudge the decision on the main appeal (Interim Order 21/22 R, point 12).
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).
It means that it must be examined whether, prima facie, there are grounds for the pleas in law invoked by the applicant and whether at least one of them is sufficiently serious to cast doubt on the legality of the disputed decision and justifies adoption of the requested interim measures.
The disputed decision is motivated by the fact that the medical certificates do not justify the requested transfer as an “essential measure for the treatment of the condition from which the person concerned suffers”, within the meaning of Article 8.5.4 of the PE.
It appears from the documents produced before the Complaints Board that the exceptional situation in the class attended by the applicants’ child is known to the School, which organises frequent meetings with parents and adopts measures to avoid troubles in the class, which includes SEN pupils – for who the School is obliged to ensure inclusive education; the adoption of frequently up-dated measures shows that the School is aware of this situation and trying to resolve it.
In order to contest the motivation of the disputed decision, the applicants allege above all that their son’s specific health condition is not adequately considered. They submitted with their request medical certificates, dated 21 October 2024 (Dr. [S], specialist in otorhinolaryngology), 21 November 2024 (Dr. [K]), 22 November 2024 (Dr. [J], pediatrician) and one last dated 2 December 2024 from Dr. [S].
From these certificates, it can be inferred that the child, because of his severe hearing disorder (with a recent surgery), is more exposed than the other classmates to troubles occurring in the classroom and in the playground, in particular to sudden shouting or loud voices, which have a direct - and harmful - influence on his ability to concentrate and on his progress in studies.
It can also be concluded that, despite the measures taken by the School, the child’s condition has not improved: while in October, Dr [S] advised « that [A] be seated as far away as possible from disruptive students so that the best possible conditions can be created which allow [A] to follow the teacher's instructions in class », in December, he « urgently advise that [A] be placed in a disturbance-free class environment to ensure his healthy physical and academic development ».
In conclusion, the requested transfer is detailed and based on certificates, which, in this preliminary approach, do not appear prima facie to be unfounded in the light of the application of Article 8.5.4 PE.
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 the current stage of the investigation, raises serious doubts as to the legality of the disputed decision.
15. According to Article 35.2 of the Rules of Procedure, the interests at stake must also be taken into consideration.
In this case, it must be taken into account:
- on the one hand, as foreseen in the Policy on Educational Support and under Article 4.7 of the Convention defining the Statute of the European Schools, the European Schools must take measures “to facilitate the reception of children with special educational needs” ; they also have to distribute the school population of the European Schools in Brussels, in the most favorable way under increasingly difficult conditions, as set out in the Schools’ response ;
- on the other hand, the interest of the child in the circumstances of the present case: it is a 7-year-old child who, due to his physical condition, is more vulnerable to disturbances, in particular those affecting his hearing and ability to understand and concentrate. These troubles are student-specific, and not only the consequence of inclusive education affecting all the students.
The School has put in place measures which show its serious willingness to deal with the problem and to deal with the interests at stake in a balanced way, measures which have certainly helped all the children in the class, but as regards the applicants’ son, they do not seem to have given the expected entire result.
For these reasons, there is serious doubt as to the legality of the disputed decision and, taking into account the interests at stake, it can be concluded that the conditions for obtaining the requested measure in summary proceedings are met.
As regards the requested measure, the Schools contend that the appeal is inadmissible on the ground that there is no interest in bringing proceedings because the decision in summary proceedings could only have the effect of suspending the execution of the decision refusing the transfer, with the consequence that the pupil would remain at the same school pending the decision on the main appeal.
However, Article 34 of the Rules of Procedure refers not only to applications for suspension of enforcement but also to other interim measures ; it is clear from the application that the requested measure is not only the suspension of enforcement of the CEA’s decision but also to temporarily authorize the refused transfer ; this is a measure of a positive nature, anticipating, albeit provisionally, the outcome of a possible decision of the Complaints Board in favour of the main appeal, otherwise the measure would be ineffective.
The applicants’ interest in bringing proceedings is thus justified, and the measure must consist in temporarily authorising the requested transfer.
It should also be recalled that the measure may be revised or amended under the conditions laid down in Article 35.3 of the Rules of Procedure, following a justified request by one party.