Strasbourg, 28 May 2008

Dear Ms W.,

On 30 July 2004, the National Ombudsman of Luxembourg transferred to the European Ombudsman the complaint that you had initially submitted to him on 26 April 2004 and which did not fall within his mandate. The complaint was directed against the European School of Luxembourg and concerned the increase in school fees for pupils belonging to category III of this school.

On 16 August 2004, you sent me further documents related to the complaint. You informed me that you worked for a law firm and that you represented the Parents' Association of the European School of Luxembourg and "the majority of the parents of pupils belonging to category III". In the absence of any further information on the identity of the latter, I considered that you were the complainant.

On 20 September 2004, I forwarded the complaint to the President of the European Commission, and asked that the institution submit its opinion before 31 December 2004.

On 27 September 2004, you sent me a further letter relating to your complaint. On 3 November 2004, I forwarded this letter to the Commission.

On 24 February 2005, in view of the period of time which had elapsed, I asked the Commission to submit its opinion on your complaint urgently and before 15 March 2005 at the latest.

The Commission sent its opinion on 14 March 2005.

On 23 March 2005, I forwarded it to you with an invitation to make observations, which you sent on 10 May 2005. In your observations, you informed me that you also represented the Parents' Association of the European School of Varese (Italy).

On 15 November 2005, I asked the Commission to provide by 31 December 2005 further information in relation to your complaint.

On 20 January 2006, you asked me for information on the date of the Commission's reply. I informed you that, in view of the delay in the submission of the said reply, I had asked the Commission to do so before 31 January 2006 at the latest.

On 4 and 21 February 2006, my services contacted the Commission in order to be informed of the state of progress concerning its reply.

On 23 February 2006, you asked me for further information as to the date of the Commission's reply.

On 24 February 2006, the Commission sent the English version of its reply and, on 7 March 2006, its translation into French.

On 10 March 2006, I forwarded to you the Commission's reply with an invitation to make observations, which you sent on 29 March 2006.

On 26 October 2006, my services contacted you by telephone in order to inform you that I had decided to propose a friendly solution to the Commission as regards two aspects of your complaint. You accepted the relevant proposal for a friendly solution.

On 29 November 2006, I made a proposal to the Commission for a friendly solution to your complaint. I asked the President of the Commission to reply to my proposal by 31 January 2007.

On 23 February 2007, the Commission sent its reply to my proposal for a friendly solution.

On 28 February 2007, I sent you a copy of the Commission's reply with an invitation to submit your observations by 31 March 2007.

On 30 March 2007, you sent me your observations on the Commission's reply.

In light of the Commission's reply and of your comments, pursuant to Article 3(3) of my Statute, by letter of 19 July 2007, I asked the Representatives of the Permanent Representations to the European Union to provide me with their views on the two points I had set out in my proposal for a friendly solution and on the action that the Commission had taken in this context.

I invited them to send me their comments by no later than 30 September 2007.

By letter of the same day, I informed both you and the President of the Commission accordingly.

As of the date of the present decision, 14 Representatives of the Permanent Representations to the European Union had provided me with a reply to my request for further information.

On 4 December 2007, I addressed a draft recommendation to the Commission. You were informed accordingly in a letter sent on the same day.

On 27 February 2008, the Commission sent me its detailed opinion regarding my draft recommendation.

I forwarded it to you on 3 March 2008 with an invitation to make observations before 31 March 2008.

No observations were received from you by the date set up for this purpose.

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

THE COMPLAINT

According to the complainant, the relevant facts were, in summary, as follows:

On 26 April 2004, the complainant, a lawyer representing the Parents' Association of the European School of Luxembourg and the majority of the parents of pupils belonging to category III(1), lodged a complaint with the Board of Governors of the European Schools against its decisions of 6 November 2002 and 15 March 2004 to increase school fees for pupils of the European School of Luxembourg belonging to category III.

On the same day, the complainant also lodged a complaint with the National Ombudsman of Luxembourg concerning the increase in school fees by the European School of Luxembourg for pupils belonging to category III.

On 17 May and 7 June 2004, the complainant requested information from the Secretary-General of the Board of Governors on the progress of her complaint. On 15 June 2004, the Secretary-General of the Board of Governors replied that he needed additional time to answer the complainant.

On 30 July 2004, the National Ombudsman of Luxembourg informed the complainant that her complaint did not fall within his mandate and that he had decided to transfer it to the European Ombudsman.

On 16 August 2004, the complainant sent further documents to the European Ombudsman regarding her complaint.

In her complaint to the National Ombudsman of Luxembourg which was transferred to the European Ombudsman and in her further letter of 16 August 2004, the complainant submitted the following two allegations:

(1) She alleged that the Board of Governors of the European Schools had unfairly decided to increase school fees for pupils belonging to category III of the European School of Luxembourg from school year 2003/2004 onwards. In this context, the complainant made the following four sub-allegations. She alleged:

1. that there had been administrative irregularities because the decision of 6 November 2002 to increase the school fees had been taken hastily, because the voting rules of the Board of Governors had been infringed, and because parents had not been informed of the potential increase in the school fees when enrolling their children;
2. that there had been inequality because the school fees were only increased for the pupils of category III and because school fees for a public European School should be very modest and only cover marginal costs;
3. that there had been an infringement of the principle of legitimate expectations because of the increase in school fees failed to distinguish between former pupils(2) and new ones; and
4. that there had been discrimination because the fundamental right of children to education, foreseen by Article 28 of the Convention on the Rights of the Child, had been infringed in view of the excessive increase in school fees.

(2) The complainant alleged that the Board of Governors had failed to reply to the complainant's appeal of 26 April 2004 against its decisions dated 6 November 2002 and 15 March 2004 to increase school fees for pupils belonging to category III.

The complainant also made the following two claims:

1. the Board of Governors should reconsider its decisions dated 6 November 2002 and 15 March 2004 and apply the school fees as fixed in its decisions of 26 April 1994 and 27 April 1994; and
2. the Board of Governors should reimburse the additional fees for the school year 2003/2004 to the parents of the children concerned.

THE INQUIRY

The Ombudsman's approach

The Ombudsman asked the Commission to provide an opinion on the complainant's two allegations and her two claims. He did not consider it necessary to set out the four sub-allegations concerning the first of these allegations in his opening letter sent on 20 September 2004. The complainant was informed of the contents of this letter the same day.

On 27 September 2004, the complainant sent a further letter to the Ombudsman. She requested that her first allegation be reformulated in the following terms:

"The Board of Governors of the European Schools unfairly decided to increase the school fees for pupils belonging to category III from school year 2003/2004 onwards, without making any distinction between former pupils and new ones."

On 3 November 2004, the Ombudsman informed the Commission accordingly and asked it to give its opinion on this allegation as reworded by the complainant.

The Commission's opinion

The Commission's opinion on the complaint was, in summary, as follows:

(1) The allegedly unfair decision of the Board of Governors to increase the school fees for pupils belonging to category III without making any distinction between former pupils and new ones

As regards sub-allegation (a) that there were administrative irregularities, the Commission observed that, as was the case for each decision of the Board of Governors, this decision had also been adopted by a two-thirds majority of the members comprising it. The Commission further submitted that parents had been informed of the annual amount of the school fees to be paid and that they had been given the opportunity to terminate their contract with the European School in which their child had been enrolled, if they so wished.

As regards sub-allegation (b), namely, that there was inequality of treatment, the Commission stated that school fees for category II pupils had also been increased following the decision of the Board of Governors to reduce the financial assistance received from the Commission. According to the Commission, the increase in the school fees for the years 2003/2004 and 2004/2005 amounted to 11% for each year. As regards the complainant's argument that school fees for a public European School should be very modest and only cover marginal costs, the Commission stated that the average annual cost of a pupil, for the year 2003/2004, amounted to EUR 10 000, which was significantly higher than the school fee requested, that is, EUR 1 927 for the nursery school, EUR 2 679 for the primary school, and EUR 3 656 for the secondary school. The Commission pointed out that the aim of the European Schools was to enable staff of the European institutions to live near their working places, to ensure an appropriate education for the children of staff, and to facilitate a proper functioning of the European institutions. Parents of pupils in category III who were not members of staff of the Community institutions or of any of the other organisations that appeared on the relevant list were not authorised to request an exemption from school fees to the extent that they did not work for the Community institutions. The ordinary school fees fixed by the Board of Governors were therefore payable for these pupils.

As regards sub-allegation (c), namely, the infringement of the principle of legitimate expectations, the Commission stated that the complainant did not submit any evidence to show that any person who would have been authorised to modify the school fees had asserted that they would not be increased. When enrolling their children in one of the European Schools, the parents subscribed to the General Rules of the European Schools. They were informed of the amount of school fees to be paid and all measures of publicity had been taken to inform the Parents' Associations of the European Schools of the increase in school fees for the year 2005/2006. Furthermore, the principle of legitimate expectations could not be infringed to the extent that the increase of the schools fees had already been foreseen since 2002. The Commission further stated that, on several occasions during meetings of the Board of Governors, it had indicated that it was in favour of the implementation of a progressive and differentiated approach that distinguishes between former and new pupils of category III, as regards the increase in schools fees.

As regards sub-allegation (d) that there was discrimination, the Commission observed that the said Article did not concern access to a specific school such as the European Schools. In the Commission's view, this Article did not preclude the possibility that access to these schools would be subject to the payment of school fees.

(2)The alleged failure to reply to the appeal of 26 April 2004

As regards the allegation that the Board of Governors had failed to reply to the complainant's appeal of 26 April 2004 against its decisions of 6 November 2002 and 15 March 2004 to increase school fees for pupils belonging to category III, the Commission stated that, on 15 June 2004, the Secretary-General of the Board of Governors sent a "holding letter" to the complainant. This "holding letter" was necessary because the work of the "special working group of the Board of Governors" responsible for setting school fees for category III had not yet finished. The Commission further stated that, on 8 December 2004, a detailed reply to the appeal of 26 April 2004 had been sent to the complainant.

The complainant's observations

In her observations, the complainant informed the Ombudsman that, in addition to representing the Parents' Association of the European School of Luxembourg, she also represented the Parents' Association of the European School of Varese ( Italy). She maintained her complaint and made, in summary, the following further comments:

A two- thirds majority of the members comprising the Board of Governors had been reached because the Parents' Association had not been allowed to vote on the increase in school fees for category III pupils. The complainant further made some comments that could have conceivably been interpreted as calling into doubt the legitimacy of the relevant rules laid down in the Convention itself as regards this issue.

In the complainant's view, contrary to the Commission's statement, the contractual relationship existing between the European Schools concerned and the parents was not renewed each year, but was concluded for a period of nearly 14 years, which corresponded to a school cycle.

The complainant argued that, given that pupils of category III were only admitted to the European Schools to the extent that places were available, in accordance with a clear order of priority, school fees for this category should not be increased but reduced. In view of the fact that the parents contributed to the domestic economy of the country where their children go to school, Luxembourg and Italy should finance the relevant school fees.

In the complainant's view, the child's fundamental right to education was infringed because, in view of the differences between the scheme of the European Schools and the ones of Luxembourg or Italy, with respect to the subjects taught and the career guidance offered, category III pupils residing in Luxembourg and Italy were likely to encounter difficulties when returning to the national teaching schemes of these two countries.

The complainant stated that parents of category III pupils had not subscribed to the General Rules of the European Schools when enrolling their children. She further pointed out that the European School of Luxembourg itself had undertaken efforts to encourage parents of pupils in category III to enrol their children at the School in order to maintain certain courses that would otherwise have been closed in view of the low number of pupils enrolled.

As regards the failure to reply to her appeal of 26 June 2004, the complainant pointed out that an eight-month delay in the reply of the Board of Governors was contrary to the principles of good administration and that the "Code of Good Administrative Behaviour adopted by the Board of Governors" had been infringed.

The complainant further argued that, contrary to the Commission's statement, made in its opinion, that there had been an 11% increase in school fees for 2003/2004 and 2004/2005, the increase for these periods amounted in reality to 48.5% and 14.64%(3) respectively. The complainant pointed out that the Commission had failed to take into account the 1994 agreement when making its calculation.

The complainant further alleged that, on 25 January 2005, she had lodged two appeals on behalf of the Parents' Associations of the European Schools of Luxembourg and Varese with the Complaints Board of the European Schools. The purpose of these two appeals was to obtain the suspension of the implementation of the 6 November 2002 and 15 March 2004 decisions of the Board of Governors, as well as their modification or annulment. The Complaints Board had declared itself incompetent because of the lack of an appeals procedure for this type of decision. In the complainant's view, this constituted a denial of justice because the Parents' Associations of the European Schools of Luxembourg and of Varese were denied the right to appeal against decisions of the Board of Governors concerning school fees to be paid by the parents.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The Ombudsman therefore asked the Commission (1) to provide him with further information; and (2) to submit an opinion on a new allegation made by the complainant:

(1) Request for further information

In her observations, the complainant argued that, contrary to the Commission's statement in its opinion that there had been an 11% increase in school fees for 2003/2004 and 2004/2005, the increase for these periods amounted in reality to 48.5% and 14.64% respectively. The complainant pointed out that the Commission had failed to take into account the 1994 agreement when making its calculation. The Commission was asked to comment on this point.

(2) The complainant's new allegation

The complainant alleged that there had been a denial of justice by the Board of Governors of the European Schools because the Parents' Associations of the European Schools of Luxembourg and Varese had been denied the right to appeal against decisions of the Board of Governors concerning school fees to be paid by the parents.

The Commission's reply

In its reply, the Commission made, in summary, the following comments:

(1) On the request for further information

Contrary to the complainant's statement, there was no agreement regarding school fees in 1994. There was merely a 1994 decision by the Board of Governors to increase the category III fees incrementally over the following ten years so as to have them doubled by 2004. These increases were implemented as planned.

As to the percentage of increase in the school fees, both the figures provided by the Commission and those provided by the complainant in her observations were correct. The difference between the figures can be explained by the basis for comparison used. When school fees were raised, the percentage of the increase was usually calculated as a percentage of the level of fees charged at the time. Thus, the Commission's figures were based on a year-by-year comparison: in November 2002, the Board of Governors decided to raise the fees for category III by 7% for the school year 2003/2004 and by 11% for the school year 2004/2005. In March 2004, the Board of Governors decided that category III fees would be increased by a further 15% for the school year 2004/2005.

(2) On the complainant's new allegation

The Commission stated that it was bound by the Convention defining the Statute of the European Schools, which had been agreed upon by the Member States and the European Communities.

The complainant's further observations of 29 March 2006

In her further letter of 29 March 2006, the complainant informed the European Ombudsman that she did not wish to make further observations on the Commission's reply and that she wished to see "the debate close[d]".

The complainant's further letter of 11 August 2006

On 11 August 2006, the complainant sent a further letter to the Ombudsman in which she informed him of a judgment of the Court of First Instance (Tribunal de première instance) of Brussels of 12 June 2006 concerning the increase of school fees for category III pupils in the European Schools of Brussels and Mol ( Belgium). According to the information provided by the complainant in her letter, the Court, in its judgment, distinguished between four groups of pupils depending on when they had started their schooling, and found that an increase in fees of more than 7.1% per year was liable to infringe the legitimate expectations of the parents concerned.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

The Ombudsman's assessment

After careful consideration of the Commission's opinion and of the complainant's observations, the Ombudsman was not satisfied that the Commission had responded adequately to the complainant's allegations and claims.

The friendly solution proposed consisted in the following two points:

1. The Commission could take the necessary measures to try and ensure that the Board of Governors reconsider its decision to increase, from school year 2003/2004 onwards, as regards the situation of the parents of the pupils already enrolled, school fees for pupils belonging to category III in the European Schools of Luxembourg and Varese.
2. The Commission could take the necessary measures to try and ensure that the Board of Governors of the European Schools adopt the necessary implementing provisions to enable the Complaints Board to deal with appeals against decisions relating to school fees, including appeals which were lodged before these rules came into force.

The Commission's response to the Ombudsman’s proposal

In its reply of 23 February 2007, the Commission did not accept the Ombudsman's proposal and made the following comments:

As regards the first point of the Ombudsman's proposal

The Commission considered that there was no justification for asking the Board of Governors to reconsider the relevant decision. The arguments for distinguishing between existing pupils and new pupils were already raised by the Commission during the discussion in the Board of Governors before the said decision was taken. The Member States were therefore well aware of these arguments before the Board of Governors took its decision. In the Commission's view, no new facts emerged that would warrant a reopening of this issue.

As regards the second point of the Ombudsman's proposal

The Commission stated that the Complaints Board had been set up to have jurisdiction in the first and final instances in disputes: (a) concerning the application of the Convention defining the Statute of the European Schools to the persons covered by it; and (b) with respect to the legality of any act affecting such persons on the part of certain organs of the European Schools. In the Commission's view, its jurisdiction was strictly limited to such disputes and could be exercised only subject to the conditions and detailed rules laid down by the implementing texts to which the Convention referred(4).

The Commission pointed out that the rules applicable to the organisation and operation of the Complaints Board and the procedure followed before it were contained in its Statute and in its Rules of Procedure, which were adopted in accordance with the conditions laid down in Article 27 of the Convention. The Complaints Board did not have jurisdiction over decisions of the Board of Governors.

The Commission further stated that the Ombudsman's recommendation amounted to a request to the Commission to change the mandate of the Complaints Board. The Commission further stated that it had no power to amend the mandate of the Complaints Board and that it had a very limited role in the European School system, which was a form of intergovernmental co-operation in which the primary actors were the Member States. In view of its limited role, it was neither useful nor appropriate for the Commission to request fundamental changes to the complaints system. In particular, the Commission should not have dealt with a case in which the specific matter of complaint had been the subject of a decision of the Board of Governors, which was fully informed of the arguments put forward by the complainant, and as regards which the complainant had not indicated that there were any new facts.

The Commission finally stated that, should the Ombudsman consider that this situation was not satisfactory, he should make his views known to those who could actually amend the complaints procedure. Any recommendation addressed only to the Commission could not be expected to have any substantive effect for the reasons given above, since it was not the appropriate addressee. If such a recommendation were nevertheless made, despite what has been said above, the Commission could do no more than draw the Board of Governor's attention to it, and to the present answer.

The complainant's additional observations

In her observations, the complainant maintained her complaint and stated that the Commission's reply was unacceptable for the Parents' Association of the European School of Luxembourg and Varese.

The Ombudsman's reaction

In light of the above, and pursuant to Article 3(3) of his Statute(5), by letter of 19 July 2007, the Ombudsman asked the Representatives of the Permanent Representations to the European Union to provide him, by 30 September 2007, with their views on the two points he had set out in his proposal for a friendly solution and on the action that the Commission had taken in this context.

By letter of the same day, the Ombudsman informed both the President of the Commission and the complainant accordingly.

Subsequent developments:

Replies to the Ombudsman's request for further information were received from 14 of the Permanent Representations to the European Union.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 4 December 2007, the Ombudsman addressed the following draft recommendation to the Commission:

The Ombudsman considered that the Commission should, in the context of its role on the Board of Governors, support the view that the jurisdiction of the Complaints Board covers appeals against acts of the Board of Governors, such as appeals against decisions to increase school fees.

The Ombudsman considered that, if there were a dispute as regards the correct interpretation of Article 27.2 of the Convention which cannot be resolved satisfactorily by the Board of Governors, the Commission should refer the issue to the Court of Justice of the European Communities in accordance with Article 26 of the Convention.

This draft recommendation was based on the following considerations:

1. On 26 April 2004, the complainant, a lawyer, lodged a complaint with the Board of Governors of the European Schools against its decisions dated 6 November 2002 and 15 March 2004 to increase school fees for category III pupils of the European School of Luxembourg.

In her complaint to the National Ombudsman of Luxembourg, which was transferred to the European Ombudsman, and in her further letters of 16 August and 27 September 2004, the complainant alleged that the Board of Governors had unfairly decided to increase school fees for category III pupils of the European School of Luxembourg from school year 2003/2004 onwards, without making any distinction between category III pupils who had already enrolled in the school and new category III pupils. In this context, the complainant made four sub-allegations concerning: (a) administrative irregularities; (b) inequality; (c) infringement of the principle of legitimate expectations; and (d) discrimination.

The complainant further alleged that that the Board of Governors of the European Schools had failed to reply to her appeal of 26 April 2004 against its decisions to increase school fees for category III pupils.

In her observations, the complainant made the following new allegation: there was a denial of justice by the Board of Governors of the European School because the Parents' Associations were denied the right to appeal to the Complaints Board against decisions of the Board of Governors concerning school fees to be paid by the parents.

The complainant further claimed that (1) the Board of Governors should reconsider its decisions dated 6 November 2002 and 15 March 2004 and apply the school fees as fixed in its decisions of 26 April 1994 and 27 April 1994; and that (2) the Board of Governors should reimburse the additional fees for the school year 2003/2004 to the parents of the children concerned.

2. In its opinion, the European Commission stated, as regards sub-allegation (a), that, as was the case for each decision of the Board of Governors, the decision to increase school fees had been adopted by a two-thirds majority of the members comprising it. As regards sub-allegation (b), the Commission stated that the school fees of pupils of category II had also been increased following the decision of the Board of Governors to reduce the subvention received from the Commission. As regards sub-allegation (c), the Commission stated that the complainant had not submitted any evidence to show that any person who would have been authorised to modify the school fees had asserted that they would not be increased. In the Commission's view, when enrolling their children in one of the European Schools, the parents subscribed to the General Rules of the European Schools and all measures of publicity had been taken to inform the Parents' Associations of the European Schools of the increase in school fees for the year 2005/2006. As regards sub-allegation (d), the Commission stated that Article 28 of the European Convention on the Rights of the Child did not concern the issue of access to a specific school, such as the European Schools, and that this Article did not preclude the possibility that access to these schools would be subject to the payment of school fees.

3. As regards sub-allegations (a), (b) and (d) of the complainant's first allegation and as regards her second allegation, the Ombudsman concluded that there appears to have been no maladministration by the Commission.

4. As regards sub-allegation (c) of the complainant's first allegation, the Ombudsman's provisional conclusion was that the Commission’s failure to play an active role in advocating principles of good administration in the European Schools in the present case could constitute an instance of maladministration. As regards the complainant's new allegation that there was a denial of justice by the Board of Governors of the European School, the Ombudsman's provisional conclusion was as follows. The fact that the Commission did not appear to have endeavoured to convince the Board of Governors to adopt implementing provisions empowering the Complaints Board to deal with appeals against decisions relating to the school fees could constitute an instance of maladministration.

On 29 November 2006, the Ombudsman made a proposal for a friendly solution to the Commission which consisted of the following two points:

1. The Commission could take the necessary measures to try and ensure that the Board of Governors reconsider its decision to increase from school year 2003/2004 onwards, as regards the situation of the parents of the pupils already enrolled, school fees for pupils belonging to category III of the European School of Luxembourg and Varese.
2. The Commission could take the necessary measures to try and ensure that the Board of Governors of the European Schools adopt the necessary implementing provisions to enable the Complaints Board to deal with appeals against decisions relating to school fees, including appeals which were lodged before these rules came into force.

5. In its reply, the Commission did not accept the Ombudsman's proposal and stated, in summary, that, as regards the first point, there was no justification for asking the Board of Governors to reconsider the relevant decision, given that the arguments for distinguishing between existing pupils and new pupils were already raised by the Commission during the discussion in the Board of Governors before the said decision was taken.

As regards the second point, the Commission referred to the limited role of the Complaints Board, and in particular, pointed out that the said Board did not have jurisdiction over decisions of the Board of Governors. The Commission further stated that the Ombudsman's recommendation amounted to a request to the Commission to change the mandate of the Complaints Board. The Commission further stated that it had no power to amend the mandate of the Complaints Board and that it had a very limited role in the European School system, which was a form of intergovernmental co-operation in which the primary actors were the Member States. In view of its limited role, it was neither useful nor appropriate for the Commission to request fundamental changes to the complaints system.

6. In her observations, the complainant stated that the Commission's reply was unacceptable for the Parents' Association of the European School of Luxembourg and Varese.

7. In light of the above, and pursuant to Article 3(3) of his Statute, the Ombudsman asked the Representatives of the Permanent Representations to the European Union to provide him with their views on the two points set out in his proposal for a friendly solution and on the action that the Commission had taken in this context. By letter of the same day, the Ombudsman informed both the President of the Commission and the complainant accordingly. As of the date of the decision, 14 Representatives of the Permanent Representations to the European Union had sent their replies to the Ombudsman's request for further information.

8. As regards the first point of his proposal for a friendly solution, the Ombudsman noted that, after a careful examination of the replies received from the Permanent Representations to the European Union, it emerged that the general consensus is that the Commission did all it could have done in order to try and make the Board of Governors deal with this issue. In fact, it appeared that the Commission had indeed raised the issue of the distinction between existing and new pupils during the discussion in the Board of Governors before this decision was taken. However, this issue was not considered by the Delegations of the Members States that composed the Board of Governors. The decision to increase the school fees for pupils belonging to category III of the European Schools was approved by the majority of the Members of the Board of Governors.

9. In light of the above findings, the Ombudsman considered that no further inquires were necessary into the first point raised in his proposal for a friendly solution.

10. As regards the second point made in his proposal for a friendly solution, namely, that the Commission could take measures to ensure that the Board of Governors of the European Schools adopt the necessary implementing provisions to enable the Complaints Board to deal with appeals against decisions relating to school fees, including appeals which were lodged before these rules came into force, the Commission limited itself to stating that the Complaints Board did not have jurisdiction over decisions of the Board of Governors and that the Ombudsman's proposal for a friendly solution constituted a request to change the "mandate" of the Complaints Board. The Commission went on to state that, at most, it could draw the Board of Governor's attention to the issue. The Ombudsman notes that no consensus emerged from the replies received from the Permanent Representations to the European Union as regards the second point made in his proposal for a friendly solution.

11. The Ombudsman noted that the issue of the mandate of the Complaints Board was dealt with exclusively in Article 27 of the Convention. The issue of the mandate of the Complaints Board must be clearly distinguished from the issue of procedural rules, which serve to implement the mandate of the Complaints Board. The issue of procedural rules is dealt with in the Rules of Procedure of the Complaints Board.

12. The Ombudsman pointed out that the second point of his proposal for a friendly solution sought only to deal with the apparent lack, according to the Complaints Board's decision of 22 February 2005, of a procedural mechanism to deal with appeals against decisions of the Board of Governors, such as the appeal brought by the complainant(6). Therefore, by stating in its reply to the proposal for a friendly solution that the Complaints Board did not have "jurisdiction" over decisions of the Board of Governors, the C ommission clearly misinterpreted the proposal for a friendly solution.

13. The Ombudsman observed that if it were indeed the case that the Complaints Board did not have jurisdiction to deal with decisions of the Board of Governors, in other words, that the mandate of the Complaints Board did not extend to cover decisions of the Board of Governors, there would be no reason even to adopt implementing measures allowing appeals of decisions of the Board of Governors. The Ombudsman's proposal for a friendly solution would, in such circumstances, serve no purpose. In this context, the Ombudsman considered it necessary to comment on the Commission's reply.

14. As noted above, Article 27 of the Convention constituted the legal basis for the mandate of the Complaints Board. Article 27.2 of the Convention read as follows:

"TheComplaints 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." (Emphasis added).

This wording clearly and unequivocally indicated that acts of the Board of Governors were subject to review by the Complaints Board. The only limitation, in terms of ratione personae, to the jurisdiction of the Complaints Board, related to disputes involving administrative and ancillary staff. Disputes in which parents or parents associations were involved were not covered by this exception.

It was also clearly the case that a decision in relation to fees was a decision "concerning the application of this Convention" insofar as Article 25 of the Convention states that "[t]he budget of the Schools shall be financed by (…) the School's own revenue, notably the school fees charged to parents by the Board of Governors".

With further reference to the conditions set out in Article 27.2 of the Convention, it was also clear that the complainant challenged the legality of the decision to increase the fees and that the increase in fees adversely affected the persons who the complainant represented.

In sum, all the conditions relating to the jurisdiction of the Complaints Board in relation to the acts of the Board of Governors at issue in the present case were met(7).

The Ombudsman considered that any failure of the Commission to support, in the context of its role on the Board of Governors, the view that the jurisdiction of the Complaints Board covers appeals against acts of the Board of Governors, such as appeals against decisions to increase school fees, would be an instance of maladministration.

The Ombudsman noted that arriving at a precise understanding of what the jurisdiction of the Complaints Board is may have significant benefits for the Commission. At present, the Commission was required to answer to the Ombudsman in relation to a number of complaints brought to his attention by complainants that have been led to believe that they have no other means of recourse open to them. Any inquiries by the Ombudsman were, in such circumstances, constrained, given the limited power of the Commission to determine the position taken by the Board of Governors. It was foreseeable that the number of complaints to the Ombudsman in relation to the Commission's role on the Board of Governors of the European Schools would diminish significantly, should interested parties have the option to submit appeals against decisions of the Board of Governors to the Complaints Board. This was especially likely, given the fact that the Complaints Board has jurisdiction in relation to decisions of the Board of Governors per se, whereas the Ombudsman was only entitled to review the behaviour of one member of the Board of Governors, namely, the Commission.

15. The Ombudsman was cognisant of the fact that even if the Commission were to take the view that the jurisdiction of the Complaints covers appeals against acts of the Board of Governors, the other members of the Board of Governors would not necessarily share the Commission’s view. In such circumstances, the Ombudsman does not exclude the possibility that the Board of Governors would be unable to resolve this issue satisfactorily. In this respect, the Ombudsman noted that Article 26 of the Convention read as follows:

"The Court of Justice of the European Communities shall have sole jurisdiction in disputes between Contracting Parties relating to the interpretation and application of this Convention which have not been resolved by the Board of Governors".

In this respect, the Ombudsman considered that if there were a dispute as regards the correct interpretation of Article 27.2 of the Convention which could not be resolved satisfactorily by the Board of Governors, the Commission should refer the issue to the Court of Justice of the European Communities.

16. As regards the issue of an apparent lack of a procedural mechanism to deal with appeals against acts of the Board of Governors, which was raised by the Complaints Board in its decision of 22 February 2005 in relation to an appeal brought by the complainant, the Ombudsman noted that the Rules of Procedure of the Complaints Board were approved by the Board of Governors in its meeting of 1 and 2 February 2005 and entered into force immediately(8). The Ombudsman noted that the Complaints Board did not indicate in its decision of 22 February 2005 in what precise manner the Rules of Procedure of the Complaints Board were insufficient to give effect to its mandate as established under Article 27.2 of the Convention. The Ombudsman, having carefully examined the Rules of Procedure of the Complaints Board, was unable to identify the precise deficiencies to which the Complaints Board appeared to allude in its Decision of 22 February 2005. In this respect, the Ombudsman called upon the Commission to clarify with the Complaints Board the precise procedural rules the latter considered necessary to give full effect to its mandate(9).

The Commission's detailed opinion

In its detailed opinion on the draft recommendation, the Commission stated that, in recent years, the Board of Governors had to examine a proposal of the Secretary-General of the European Schools to enlarge the jurisdiction of the Complaints Board to cover all issues related to the European Schools. This proposal was not accepted.

The Commission recalled that no jurisdictional immunity had been given to the European Schools, either by the Convention defining the statute of the European Schools, or by an additional convention with the Member States. On the contrary, according to the preamble of the Convention, the Complaints Board had been created "with strictly limited jurisdiction" and "the jurisdiction of the Complaints Board will be without prejudice to national courts' jurisdiction in relation to civil and criminal liability". Furthermore, according to the Article 27.7 of the Convention, national courts' jurisdiction with regard to matters of civil and criminal liability was not affected by this Article.

Hence, contrary to the position of the Ombudsman, the Commission considered that the Board of Governors would not deny parents justice in the event that some issues relating to the European Schools could not be submitted for appeal to the Complaints Board. In this regard, the Commission explained that national courts were competent to deal with those cases. Regarding in particular the fee increases, parents had, in recent years, submitted several disputes to national courts, which had declared themselves to be competent to deal with those disputes. Indeed, even if the Board of Governors were to decide to enlarge the present competence of the Complaints Board to cover fee-related issues, this could give rise to a conflict of competence with respect to national courts. This situation could arise if parents were to initiate legal proceedings before the national courts on an issue being dealt with by the Complaints Board.

The Commission referred to the interest in having a single authority to adjudicate on all complaints raised by category III parents with respect to the fee levels in the European Schools. In this regard, the Commission took the view that an amendment to the General Rules of the European Schools could be introduced with a view to allowing appeals of decisions taken by the Board of Governors to increase school fees.

The Commission stated that it intended to ask the Secretary-General for such an amendment to be submitted to one of the next meetings of the Board of Governors. However, the Commission stated that it would not ask for the retroactive application of such a decision, as different complaints about fee increases were already before the national courts.

On the second point of the draft recommendation submitted by the Ombudsman, the Commission made the following point. According to Article 26 of the Convention, recourse to the European Court of Justice should only be considered in the case of disputes between the Contracting Parties relating to the interpretation and application of the Convention which could not be resolved by the Board of Governors. In the Commission’s view, this was not the case so far concerning the role of the Complaints Board.

In conclusion, the Commission, taking note of the Ombudsman's draft recommendation, stated that it would ask the Secretary-General to present a proposal of implementing provisions to the Board of Governors in order to enable the Complaints Board to deal with appeals against decisions relating to school fees.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 The complainant’s allegations and claims

1.1 On 26 April 2004, the complainant, a lawyer, lodged a complaint with the Board of Governors of the European Schools against its decisions dated 6 November 2002 and 15 March 2004 to increase school fees for category III pupils of the European School of Luxembourg

1.2 In its opinion, the European Commission rejected all the complainant’s allegations and claims.

1.3 As regards sub-allegations (a), (b) and (d) of the complainant's first allegation and as regards her second allegation, the Ombudsman concluded that there appeared to have been no maladministration by the Commission. As regards sub-allegation (c) of the complainant's first allegation, the Ombudsman's provisional conclusion was that the Commission’s failure to play an active role in advocating principles of good administration in the European Schools in the present case could constitute an instance of maladministration.

As regards the complainant's new allegation, made in her observations, that there was a denial of justice by the Board of Governors of the European School, the Ombudsman's provisional conclusion was as follows. The fact that the Commission did not appear to have endeavoured to convince the Board of Governors to adopt implementing provisions empowering the Complaints Board to deal with appeals against decisions relating to the school fees could constitute an instance of maladministration.

1.4 On 29 November 2006, the Ombudsman made a proposal for a friendly solution to the Commission. In its reply, the Commission did not accept the Ombudsman's proposal. In her observations, the complainant stated that the Commission's reply was unacceptable to the Parents' Association of the European School of Luxembourg and Varese.

1.5 On 4 December 2007, the Ombudsman addressed a draft recommendation to the Commission according to which ( i) it should, in the context of its role on the Board of Governors, support the view that the jurisdiction of the Complaints Board covers appeals against acts of the Board of Governors, such as appeals against decisions to increase school fees. The Ombudsman further considered that (ii) the Commission should refer disputes concerning the correct interpretation of Article 27.2 of the Convention that cannot be resolved satisfactorily by the Board of Governors to the Court of Justice of the European Communities, in accordance with Article 26 of the Convention.

1.6 In its reply, the Commission informed the Ombudsman that, in the course of one of the next meetings of the Board of Governor, it intended to ask the Secretary-General for the introduction of an amendment to the General Rules of the European Schools to allow appeals of decisions taken by the Board of Governors to increase school fees. However, the Commission stated that it would not ask for a retroactive application of such a decision, as different complaints about fee increases were already before national courts.

2 Conclusion

On the basis of his inquiries, the Ombudsman concludes that the Commission has accepted the Ombudsman's draft recommendation and that the measures taken by the Commission are satisfactory.

The Ombudsman therefore closes the case. The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) According to the decision of the Board of Governors of 24 October 1989, pupils of category III are pupils whose parents are not staff in the service of the Community Institutions (pupils whose parents are staff in the service of the Community Institutions are "category I" pupils) or pupils not covered by individual agreement or decisions with the European Schools (pupils who are covered by individual agreement or decisions with the European Schools are "category II" pupils).

(2) "Former pupils" refers to pupils who were enrolled in the European Schools before the increases in school fees.

(3) The complainant did not explain how these figures were calculated.

(4) The relevant implementing texts were the (Service) Regulations for Members of Seconded Staff, and the Conditions of Employment for Part-time (locally recruited) Teachers. The General Rules of the European Schools applied to the extent that there was no applicable national law.

(5) Pursuant to Article 3(3) of the European Ombudsman’s Statute, "[t]he Member States' authorities shall be obliged to provide the Ombudsman, whenever he may so request, via the Permanent Representations of the Member States to the European Communities, with any information that may help to clarify instances of maladministration by Community institutions or bodies unless such information is covered by laws or regulations on secrecy or by provisions preventing its being communicated. Nonetheless, in the latter case, the Member State concerned may allow the Ombudsman to have this information provided that he undertakes not to divulge it".

(6) The Complaints Board stated that: "even if [Article 27of the Convention] envisages the possibility of an appeal from [persons such as the complainant], the possibility [of making such an appeal] cannot be understood as being effective unless (…) the conditions and form of such an appeal are precisely determined." Translation by the Ombudsman's services from the original version in French.

(7) The Ombudsman also notes that the reference, in Article 27(2) of the Convention, to the Complaints Board having "unlimited jurisdiction" in disputes of a financial character, does not alter the scope of the mandate of the Complaints Board, but rather only serves to extend the scope of the remedies which the said Board can order.

(8) Amendments to these rules were approved by the Board of Governors at the meeting of 17 and 18 April 2007 and entered into force immediately.

(9) The Ombudsman presumes that, in the event that the Complaints Board does not identify any procedural rules which would be necessary to give full effect to its mandate, interested parties may already be entitled to appeal to the Complaints Board against decisions of the Board of Governors.