Abstract

Findings of the Complaints Board

On the substance of the appeal,

(...)

7. According to the established case law of the European Court of Justice, a situation of "force majeure" is characterised 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.

The elements invoked by the applicants as constituting a case of force majeure must therefore be examined within this regulatory framework.

8. In this case, the Complaints Board notes, first, that the circumstances giving rise to the difficulties encountered by [A] were not beyond the control of the applicants. On his return to Belgium, the applicants chose to educate him in French in a Belgian school for the 2023-2024 and 2024-2025 school years even though they had the option of enrolling him in a European School. Also, for the 2025-2026 school year, they had the option of enrolling him in the first phase.

In addition, the risk that [A] might encounter difficulties reaching the required level in French to continue in a Belgian school after September 2025 was neither unusual nor unforeseeable. Although his end of year report for the 2023-2024 school year noted his positive attitude and progress in French, it also noted some definite shortcomings regarding his written work (“erreurs de syntaxe et de structuration de phrases”, “beaucoup de mots sont écrits en phonétique, “ses formulations et construction de phrases doivent encore gagner en coherence”). The risk of his encountering difficulties continuing in French existed from the beginning of the 2024-2025 school year, and therefore before the deadline for the first phase of enrolment applications for the 2025-2026 school year.

The declaration by [A]’s mother that “in the course of the academic year, it has become clear that his French is not sufficient to continue there” and “it is essential that he can start in the Hungarian section in September 2025” doesn’t explain why this only became apparent after the expiry of the first enrolment phase and therefore does not meet the requirement of “an exhaustive statement of the factual elements” explaining the failure to meet the first phase deadline required by Article 2.28 of the Enrolment Policy.

The declaration by [A]'s teacher of the 26th of May 2025, annexed to the second phase application, whilst noting that it would be preferable to educate [A] in Hungarian, does not prove, or even allege, that the situation changed significantly after the deadline for the first phase. It therefore falls well short of the proof required by Article 2.28 of the Enrolment Policy to justify a case of force majeure.

9. As the applicants have failed to establish that the Central Enrolment Authority erred in finding that they had not established a case of force majeure which would justify an enrolment application during the second phase, their appeal must be dismissed.