Decision of the European Ombudsman on complaint 1155/2004/TN against the European Commission

Strasbourg, 5 April 2005

Dear Mr F., Dear Mrs K.,

On 10 April 2004, you made a complaint to the European Ombudsman on behalf of the European School Parents Association Culham concerning the European Commission's actions in relation to the phasing out of two language sections in the European School Culham.

On 3 May 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 3 August 2004 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainants, the relevant facts are, in summary, the following:

On 28 January 2004, the Board of Governors of the European Schools took a decision to progressively phase out two language sections in the European School Culham. According to the complainants, this decision seriously affects the good functioning of the school. Furthermore, the decision was not taken in conformity with the rules of procedure of the Board of Governors, which say that documents shall arrive in national capitals ten working days before the meeting and that decisions of the Board of Governors should be prepared by a Teaching Committee and an Administrative and Financial Committee. In addition, the procedure for making a decision on the closure of a school or a language section, as set out in point 3.3 of the "Gaignage(1) document", was not followed. The working group which was set up to evaluate the matter confirmed the continued viability of the European School Culham, but the mandate for the working group did not provide for an evaluation of the two language sections. The working group did not state that the two language sections were no longer viable and no measures of a social nature were included in the analysis and proposals submitted to the Board of Governors by the working group.

At the meeting of the Board of Governors on 28 January 2004, the European Commission proposed and voted in favour of the decision to phase out the two language sections. According to the complainants, the European Commission thereby failed to live up to its responsibility to promote good administration in the European Schools, especially as regards the transparency and reasoning of decisions, as required by the Charter of Fundamental Rights.

The complainants allege that the Commission has failed to promote good administration in the European Schools, especially as regards the transparency and reasoning of decisions, as required by the Charter of Fundamental Rights.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission makes, in summary, the following comments:

The "Gaignage criteria" were adopted unanimously by the Board of Governors in 2000, to be applied when, for instance, closing language sections of the European Schools. These criteria lay down that a language section should be closed if, over a 2-year period, there are 37 or fewer pupils in the entire primary section and 42 or fewer pupils in the entire secondary section, or if the number of pupils defined as category 1(2) is low. In connection herewith, the Commission recalls that according to Article 1 of the Convention defining the Statute of the European Schools, the primary purpose of the European Schools is to "educate together children of the staff of the European Communities".

In the case of Culham, the Italian section had, for the year 2003/2004, 23 pupils in primary school, down from 33 pupils the year before, and 51 pupils in secondary school, compared with 50 pupils the year before. As regards the Dutch section, there were 32 pupils in primary school in 2003/2004 and 31 pupils the year before. At secondary school level, there were 33 pupils in 2003/2004 and 34 pupils the year before. None of the pupils attending the two language sections in question were children of EU staff. The European School Culham employed in 2003/2004 eight seconded Italian teachers and seven seconded Dutch teachers at an estimated cost of almost EUR 1.36 million per year. Annual fees are currently EUR 2 680 per primary pupil and EUR 3 657 per secondary pupil, whereas the total annual cost per pupil is almost EUR 16 500.

In reply to the complainant's allegation, the Commission first points out that the European Schools are not bodies of the Union within the meaning of Article 51 of the Charter of Fundamental Rights. The fundamental rights referred to by the complainant are therefore ensured, in relation to decisions of the Board of Governors, by applicable provisions of national laws and international agreements. The Commission itself, however, is bound by the principles of good administration laid down in the Charter in relation to its own actions.

As regards the distribution of documents, the Commission states that it can only comment as a member of the Board and that, to its knowledge, the documents in question were distributed in the usual way. The date of arrival in the capitals was not an issue raised at the meeting of 28 January 2004.

The Commission further points out that preparatory discussions in the Teaching or Administrative and Finance Committees are not a legal requirement. It has to be remembered that neither of these bodies is provided for in the Statute of the European Schools and that any discussions therefore are of a purely consultative nature.

The complainants argue that the correct procedure was not followed because the closure of language sections was not specifically proposed by the group which was set up by the Board of Governors to assess the continued viability of the European School Culham. The Commission agrees that the advisory group did not specifically propose to close the two language sections. However, it did consider the possibility of this happening and it therefore discussed what measures could soften the impact of the phasing out of language sections and made various proposals to that end. The result of these discussions was presented to the Board of Governors at its meeting in Parma on 28-29 April 2004. The complainants are therefore wrong to argue that no such measures have been provided for.

In terms of social measures for the children, it is foreseen that existing primary and secondary pupils will be able complete their cycle of studies. The only pupils likely to be affected in the short term are the eight pupils currently attending the fifth primary class in the Italian section and the eight pupils attending the fifth primary class in the Dutch section, who will not be able to continue secondary school in the same language section. The Commission again stresses that none of these pupils are the children of EU staff. The Commission considers that the school cannot be expected to keep a language section open in such circumstances and that doing so would constitute mismanagement of the Community budget. The European School Culham will, however, offer an alternative to the children concerned and will admit them into one of the other language sections provided this does not involve splitting any class. With the Commission's full support, the Board of Governors adopted a new budget for helping pupils who are not attending a language section corresponding to their mother tongue.

The Commission further maintains that its request to the Board of Governors to apply the "Gaignage criteria" was done in a transparent way and was motivated by the need for good administration. The Commission would have failed its duties if it had not made the request, both in view of the content of the criteria themselves, the comments made by the European Parliament in the Bösch Report in 2002 and the costs involved, which are no longer justified.

The Commission also argues that its proposal to the Board of Governors on 28 January 2004 was not sudden or unannounced. The Director-General for Personnel and Administration sent a letter with the proposal to implement the "Gaignage criteria", giving detailed reasoning and providing figures, to the Secretary-General of the Board of Governors on 19 December 2003. The letter was copied to the President of the Board of Governors and was subsequently widely circulated. Prior to sending the letter, the Commission had consulted both the Central Staff Committee and the Director-General of the Joint Research Centre. The Commission also presented the letter to the representatives of "Interparents(3)" at the consultation meeting, which was held in Brussels on 15 January 2004 to prepare the Board of Governors meeting. On 16 January 2004, the Secretary-General of the Board of Governors wrote to the Delegations of the Member States affected by the proposal to ask if their governments would be prepared to finance the language sections in question. At the Board of Governors meeting of 28 January 2004, the heads of the Dutch, Belgian and Italian delegations to the Board of Governors had not yet received instructions from the relevant Ministers, but confirmed that answers would be given before the Board of Governors meeting in Parma in April 2004.

The Commission also notes that the same complaint as the one presented to the Ombudsman has been presented to the Members of the Board of Governors. However, at its meeting in Parma in April 2004, the Board decided unanimously to confirm its decision to phase out the Italian and Dutch language sections at the European School Culham.

The Ombudsman invited the complainants to submit observations on the Commission's opinion. No observations appear to have been submitted by the complainants.

THE DECISION

1 The alleged failure to promote good administration

1.1 The complaint concerns the European Commission's actions in relation to the phasing out of two language sections in the European School Culham. The complainants argue that the decision made by the Board of Governors of the European Schools on 28 January 2004, i.e. to phase out the Italian and Dutch language sections in the European School Culham, was not taken in conformity with the Board's rules of procedure. These rules say that documents shall arrive in national capitals ten working days before the meeting and that decisions of the Board of Governors should be prepared by a Teaching Committee and an Administrative and Financial Committee. The complainants also argue that the procedure for making a decision on the closure of a language section, as set out in point 3.3 of the "Gaignage document", was not followed because the mandate for the Gaignage working group did not provide for an evaluation of the two language sections. The working group did not state that the two language sections were no longer viable and no measures of a social nature were included in the analysis and proposals submitted to the Board of Governors by the working group. The complainants allege that the Commission has failed to promote good administration in the European Schools, especially as regards the transparency and reasoning of decisions, as required by the Charter of Fundamental Rights.

1.2 The Commission argues that by making the proposal to close the two language sections in question, it applied the "Gaignage criteria" for when to close language sections of the European Schools. The Commission points out that none of the pupils affected by the decision are children of EU staff while the primary purpose of the European Schools is to educate children of the staff of the European Communities. The Commission considers that the school cannot be expected to keep a language section open when none of the pupils are children of EU staff and that doing so would constitute mismanagement of the Community budget. The Commission's request to the Board of Governors to apply the "Gaignage criteria" was motivated by the need for good administration based on the content of the criteria themselves, the comments made by the European Parliament in the Bösch Report in 2002 and the costs involved, which are no longer justified.

As regards the complainants' arguments, the Commission states that the relevant documents were distributed the usual way and that the date of their arrival in the capitals was not an issue raised at the meeting of 28 January 2004. The Commission further contends that preparatory discussions in the Teaching or Administrative and Finance Committees are purely consultative and not a legal requirement. The Commission acknowledges that the Gaignage working group did not specifically propose to close the two language sections in question. The group did, however, consider the possibility of this happening and discussed what measures could soften the impact, making various proposals to that end.

The Commission further argues that its proposal to the Board of Governors on 28 January 2004 was made in a transparent way and that it was not sudden or unannounced. Before the meeting on 28 January 2004, the matter was brought to the attention of the President and the Secretary-General of the Board of Governors. Also "Interparents" was informed. The Commission had furthermore consulted both the Central Staff Committee and the Director-General of the Joint Research Centre.

1.3 The Ombudsman has consistently taken the view that the European Schools are not a Community institution or body and are therefore not within the mandate of the European Ombudsman under Article 195 of the EC Treaty. The Ombudsman has considered, however, that the Commission has a certain responsibility for the European Schools' operation, since it is represented in their Board of Governors and contributes largely to their financing. The Ombudsman has also considered that the Commission has a general responsibility to promote good administration in the European Schools(4).

1.4 The Ombudsman understands the complainants to allege that by proposing and voting in favour of the phasing out of the two language sections in question, the Commission failed to promote good administration in the European Schools since the process leading up to the Board of Governors' decision lacked transparency and the decision itself lacked reasoning. The complainants have provided a number of arguments to support their allegation.

1.5 As regards the process leading up to the Board of Governors' decision concerning the two language sections, the Ombudsman notes that the Commission appears to have brought the proposal to the attention of the parties concerned. The Ombudsman has found nothing to suggest that, at the meeting on 28 January 2004, any of the national delegations objected to the consideration of the matter on the basis of not having received the documents on time, as provided for in Article 9 c) of the Rules of Procedure for the Board of Governors. The Ombudsman has carefully studied Article 11 of the Rules of Procedure for the Board of Governors in relation to the complainants' argument that decisions of the Board of Governors shall be prepared by a Teaching Committee and an Administrative and Financial Committee and considers that the Commission's view that such preparatory discussions are not a legal obligation appears reasonable. As regards the mandate of the Gaignage working group, the Ombudsman has not been provided with any evidence to show its extent. The Ombudsman acknowledges that the working group's report on Culham does not state that the two language sections are no longer viable. The Ombudsman notes, however, that the reason for this appears to be that the working group considered it too early to make a decision on the future number of language sections in the European School Culham. Nevertheless, the report contains a number of measures of a social nature to be adopted in the event of a phasing out of (a) language section(s).

1.6 As regards the alleged lack of reasoning, the Ombudsman notes that the Commission refers to the "Gaignage criteria", which lay down the prerequisites for, inter alia, the closing of language sections in the European Schools. The complainants do not appear to have questioned the applicability of these criteria to the case in question. The Ombudsman further notes the Commission's argument that to keep open and financially contribute to language sections without any of the pupils being children of EU staff would constitute mismanagement of the Community budget. The Ombudsman recalls in this regard that the Commission indeed represents the Communities' interests in the Board of Governors. It should be noted, however, that in doing so, the Commission is at the same time bound by the Charter of Fundamental Right and its Article 24(2), which states that in all actions relating to children, the child's best interests must be a primary consideration. The Ombudsman notes in this connection that measures appear to be planned in order to facilitate the continuing schooling of affected pupils.

1.7 In view of the above, the Ombudsman does not consider that his inquiry into the Commission's actions in relation to the Board of Governor's decision to phase out the two language sections in question has revealed any instance of maladministration.

2 A point of concern in the Commission's opinion

2.1 The Ombudsman recalls that during the course of some of his earlier inquiries(5), the Commission acknowledged that the principles laid down in the Charter of Fundamental Rights, and particularly the right to good administration (Article 41) and the rights of the child (in particular Article 24(2)), apply in full to the European Schools and are binding upon them. The Ombudsman welcomed this acknowledgement.

2.2 The Ombudsman notes, however, that the Commission, in its opinion on the present complaint, appears to argue that the Charter of Fundamental Rights does not apply to the European Schools, but that fundamental rights in relation to decisions of the Board of Governors are protected by national laws and international agreements.

2.3 As explained in 1.3 above, the Ombudsman has no direct power of investigation as regards the European Schools. The Ombudsman considers, however, that the Commission's acknowledgement of the Charter's binding force on the European Schools constitutes an important part of the Commission's responsibility for promoting good administration in these Schools. In order to clarify the Commission's stance and commitment to this matter, the Ombudsman considers that it would be useful if the Commission communicated to him the status of the reform measures referred to during his own-initiative inquiry OI/5/2003/IJH. According to the Commission, these reform measures would include the observance of the Charter of Fundamental Rights in all the European Schools. The Ombudsman will make a further remark to this effect below.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

FURTHER REMARK

The Ombudsman considers that the Commission's acknowledgement of the Charter's binding force on the European Schools constitutes an important part of the Commission's responsibility for promoting good administration in these Schools. In order to clarify the Commission's stance and commitment to this matter, the Ombudsman considers that it would be useful if the Commission communicated to him the status of the reform measures referred to during his own-initiative inquiry OI/5/2003/IJH. According to the Commission, these reform measures would include the observance of the Charter of Fundamental Rights in all the European Schools.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The notions "Gaignage document", "Gaignage criteria" etc. appear to derive from the name of Mr Gaignage, who was the first president of the working group drafting the "Criteria for the setting up, closure or maintenance of European Schools", which were adopted in their final form by the Board of Governors in 2000.

(2) Children of the staff of the European Communities.

(3) The organism which gathers the representatives of the Parents Associations of the twelve European schools.

(4) See the Ombudsman's decision in case 845/2002/IJH and his decision in own-initiative inquiry OI/5/2003/IJH, available at the Ombudsman's website: http://www.ombudsman.europa.eu.

(5) Case 845/2002/IJH and the Ombudsman's own-initiative inquiry OI/5/2003/IJH, available at the Ombudsman's website: http://www.ombudsman.europa.eu.