Abstract

Findings of the designated judge rapporteur
On the legality of the disputed decision,
4. Article 27.2 of the Convention defining the Statute of the European Schools states: "The Complaints Board shall have sole jurisdiction in the first and final instance, once all administrative channels have been exhausted, in any dispute concerning the application of this Convention to all persons covered by it with the exception of administrative and ancillary staff, and regarding the legality of any act based on the Convention or rules made under it, adversely affecting such persons on the part of the Board of Governors or the Administrative Board of a school in the exercise of their powers as specified by this Convention. When such disputes are of a financial character, the Complaints Board shall have unlimited jurisdiction. The conditions and the detailed rules relative to these proceedings shall be laid down, as appropriate, by the Service Regulations for the teaching staff or by the conditions of employment for part-time teachers, or by the General Rules of the Schools."
The Complaints Board's jurisdiction is therefore jurisdiction ratione materiae (related to subject matter), which involves reviewing the legality of the decisions taken by the organs of the European School system, in terms of the regulatory provisions applicable and of the general principles of law.

5. In the case in point, the legality of the contested decision must be examined in terms of the provisions of the 2020-2021 Enrolment Policy, in particular Articles 9.9 and 8.4. thereof.
Article 9.9. states that:
“In order to sustain the benefits gained from the enrolment policies in force in the previous years, transfers of pupils from one Brussels school/site to another Brussels school/site, in cases other than those referred to in Articles 9.7. and 9.8., will only be allowed restrictively, on the basis of an application stating the precise reasons, and will be considered according to the same conditions and arrangements as set out in Article 8.4.”
And Article 8.4: “Particular circumstances” states that :
“Where a pupil’s interest so requires, duly established particular circumstances which are beyond the control of the applicants and/or the child may be taken into consideration to grant a priority criterion with a view to the pupil’s enrolment at or transfer to one or more schools/sites of his/her choice. If the particular circumstances can justify the pupil’s enrolment at several schools/sites, the CEA has discretionary power to award the place according to the order of preference expressed by the applicant and to pupil numbers in the classes in which enrolment is possible. These provisions are not applicable to enrolment applications for category III pupils.”

6. The applicants' first argument is based on their son's learning difficulties and the fact that he has been designated as having 'Intensive Support Type A status'.
They argue that there is a lack of Type A additional support resources available at the European School, Brussels I – Berkendael Site and that the school has failed to provide the agreed support: both assistants have been transferred or given other work to do, they as parents have never received confirmation of the frequency of sessions or feedback on [...]’s development. According to them, “it has been suggested that Uccle has more staff and potential to help him in ‘catching up’ with his class performance level."

7. It must be emphasised that there is only one and the same educational support policy, which is implemented in the same way in all the European Schools, with proportionally equal budgetary and human resources.
(...)

8. The second argument put forward by the parents to justify the transfer is the absence of a bus service available between their home in Rhode-St-Genèse and the European School, Brussels I – Berkendael Site, whilst there is a bus service available from Rhode to the School in Uccle.
They argue that “there can be no justification to send [...] to a school farther from home via public transport when there is an EU school much closer with a bus route already in place.” In that connection, they explain that taking public transport means that their son has to be woken up at 6.30 every weekday in order to catch a train at 7.15, and then a tram to the School in Berkendael, and that the same applies for his return journey home after school. So both trips take two hours every day, whilst attending the Brussels I School – Uccle Site would mean that “the commuting time would be reduced to 20 minutes per trip by car, or 40 minutes by school bus.”

9. It should be pointed out that whilst some particular circumstances can enable a transfer to be obtained pursuant to Articles 9.9 and 8.4. of the 2020-2021 Enrolment Policy, Article 8.4.2. of the EP expressly includes amongst those that are not relevant for this purpose the location of the place of residence (home) of the child and/or his/her legal representatives and practical constraints on organisation of travel, and this exclusion covers all constraints on the organisation of family life.
Whatever the consequences, even cumulative, of such constraints may be, they cannot in themselves constitute a special priority criterion allowing people who invoke it to obtain their child's enrolment at or transfer to the school of their choice.
The reason is that the European School system is not comparable with national education systems, having only a limited number of schools located in cities which are the seats of EU institutions or bodies, with the agreement of the national authorities, and not a network allowing all the pupils concerned within these cities, whatever the location of their home, to be allocated a place in a neighbourhood school, according to criteria specific to applicants for enrolment or transfer.
In so far as the Complaints Board can only review the legality of decisions contested before it and find that the regulatory framework in which the disputed decision was taken very clearly excludes the location of the place of residence (home) and organisational constraints on family and/or occupational life, it cannot but dismiss the applicants' arguments based on too great a distance between the home and the school, including the consequences of such a distance, namely the absence of a school bus service (organised by the Parents' Association and not by the European Schools themselves), the pupil's quality of life (a more time-consuming school routine, at the expense of homework, extra-curricular activities or sleep) or ecological considerations, such as those invoked by the applicants.
The applicants also argue that the current Covid-19 pandemic means that minimum use of public transport should be made.
That is true, but the situation of the applicants and of their son is no different in that respect from that of all other parents and pupils, who will have to adapt in future to this new reality.
Now Article 8.4.1 clearly states that “The priority criterion will be accepted only when it is invoked on submission of the application and where, having regard to the precise circumstances characterising a case and differentiating it from other cases, a given situation requires appropriate treatment to mitigate the unacceptable consequences which the rules of this Policy would otherwise have had.”
Furthermore, the applicants do not explain why the journey from / to the Brussels I School – Berkendael Site could not also be undertaken by car – when they did indeed calculate a journey time by car to go to the Uccle one.
Finally, it should be pointed out that the applicants themselves chose to live outside the Brussels-Capital Region, which explains why their area is not served, or is less well served, by the school bus service.

10. Finally, the applicants' third argument, linked with the second one, is that their son should attend the School closest to the location of his residence because it would help with his overall learning disabilities by gaining half an hour of sleep in the morning - which according to doctors is essential for his progress - and it would also facilitate the commute to his speech therapy sessions, which, for lack of options, are taking place at St John's School in Waterloo after his classes on Wednesdays.

11. It should first of all be emphasised once again that the location of the place of residence (home) can, where appropriate, be taken into account only in assessing the unacceptable consequences that strict application of the Enrolment Policy rules might have, notably for medical reasons, it being specified in particular that in accordance with Article 8.4.3. of the 2020-2021 EP, "Any medical complaints from which the child, or one of the people involved in his/her care on a daily basis, might suffer will be taken into consideration only in so far as evidence is provided that the child’s attendance at the school/site designated is an essential measure for the treatment of the condition from which the person concerned suffers."
However, in the case in point, the applicants do not allege that there is any particular condition requiring a treatment for which a transfer would constitute an essential measure.
It has already been emphasised (see point 9 above) that the arguments based on too great a distance between the home and the school, including the consequences of such a distance for the pupil's quality of life and his more time-consuming school routine at the expense of his sleep, could not be accepted.
The need for sleep is the same for all children, especially the youngest ones, and [...]’s situation does not require appropriate treatment as his situation is not characterised by circumstances differentiating it from other cases.
Finally, as regards the speech therapy sessions, it should be pointed out that according to Article 8.4.2.(f) of the 2020-2021 Enrolment Policy, “the location of the place to which the child regularly goes, whatever the purpose of his/her visit there, even if it is to receive therapy” is a circumstance that in principle is expressly excluded. (See, amongst others, decisions 18/33 of 20.8.2019; 19/36 of 3.9.2019)

12. In conclusion, the CEA applied the rules laid down in the EP properly in refusing the transfer.
Pursuant to and in compliance with the rules laid down in the Policy on Enrolment in the Brussels European Schools for the 2020-2021 school year, the appeal is manifestly unfounded in law within the meaning of the provisions of Article 32 of the Rules of Procedure of the Complaints Board.
It follows from the above that there is no alternative but to dismiss this appeal.