Strasbourg, 7 February 2006

Dear Mr P,

On 15 September 2004, you complained to the European Ombudsman against the European Commission concerning its behaviour in several meetings of the Board of Governors of the European Schools (the "BGES"), during which the decision to establish a second European School in Mamer (the "Luxembourg 2 School") and the proposal for the distribution of language sections between the existing European School in Kirchberg (the "Luxembourg 1 School") and the Luxembourg 2 School were approved.

On 20 October 2004, you sent to the Ombudsman the Commission's reply of 6 September 2004 to your letter of 7 July 2004 in which you criticised the above distribution of language sections.

On 29 October 2004, I forwarded your complaint to the Commission and asked it to submit an opinion. On 3 February 2005, the Commission sent its opinion in English and, on 21 February 2005, a translation of the opinion into French.

I forwarded the opinion to you with an invitation to make observations, which you sent on 27 April 2005.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

According to the complainant, the facts of the complaint are, in summary, as follows:

The complainant is an official of the European Parliament and a former vice-president of the Administration Committee of the Parents' Association in the Luxembourg 1 School.

The Commission's representative participated in several meetings of the BGES, during which the decision to create the Luxembourg 2 School and the proposal to transfer the Danish, Greek and Italian language sections from the Luxembourg 1 School to the Luxembourg 2 School were discussed and approved. The final decision to transfer the above language sections from the Luxembourg 1 School to the Luxembourg 2 School was taken at the meeting of the BGES held in Brussels on 15 March 2004. According to the complainant, the Commission voted in favour of the proposal to transfer the above-mentioned language sections to the School Luxembourg 2. In the complainant's view, the Commission thereby gave up its role as guardian of the Treaties and violated the latter.

The complainant considered that the decision of 15 March 2004 was discriminatory and that the Commission should have voted against it. Therefore, on 7 July 2004, he sent a letter to the Commission in which he criticised the adopted distribution of language sections and asked the Commission to explain the reasons for its vote.

In its reply of 6 September 2004, the Commission explained the following. A Steering Group was created to study the problems relating to the opening of the Luxembourg 2 School. This Steering Group was chaired by the Secretary General of the BGES and was composed of representatives of the management of the Luxembourg 1 School, of various Ministries of the Government of Luxembourg, of the Commission, of the teachers and the staff of the Luxembourg 1 School and of the Parents' Association. As regards the distribution of pupils, the Commission's representative emphasised on several occasions that there should be a balance in the two Schools between students from new and old Member States, and from northern, southern, eastern and western Member States. Furthermore, sections of the three principal languages ( les langues véhiculaires) (English, French and German) should be foreseen for both Schools.

During the meeting of the Steering Group in February 2003, its members, including the representative of the Parents' Association, unanimously accepted a proposal made by the management of the Luxembourg 1 School on the basis of the above criteria. The BGES confirmed this decision at its meeting held in Shannon ( Ireland) in May 2003.

Only after the Shannon meeting of the BGES were the first criticisms of the accepted distribution of language sections raised within the Parents' Association and successively followed by other entities from outside the Luxembourg 1 School. To solve the problem, the Presidency of the BGES proposed new solutions involving a lottery of language sections. On 15 March 2004, however, an extraordinary meeting of BGES confirmed, by a two-thirds majority, the original proposal on the distribution of language sections. During this BGES meeting, the Commission aligned itself with the majority of the Member States.

On 2 March 2005, the complainant lodged a complaint with the Ombudsman.

The complainant alleged that the Commission should have voted against the proposal, adopted during the meeting of 15 March 2004, to transfer certain language sections to the Luxembourg 2 School, because it was discriminatory.

He claimed that the Commission should ask for the revision of the decision to transfer certain language sections to the Luxembourg 2 School.

In support of his allegation, the complainant referred to the statements made, at the meeting of the Steering Group in September 2003 and at the meetings of the BGES in January 2004, by the Secretary General of the BGES, who stated that another distribution of language sections would have been possible and proposed that the choice be made by means of a lottery. In the complainant's view, the Commission should have supported the lottery instead of voting for the above discriminatory solution.

In an explanatory note attached to the complaint, the complainant also submitted that, in his opinion, the procedures foreseen by Articles 2.1(1) and 3.3(a)(2) of the Convention defining the Statute of the European Schools(3) (the "Convention") had not been respected when the decisions to create the Luxembourg 2 School and to transfer the Danish, Greek and Italian language sections to that School were taken.

As regards these issues, the Ombudsman found that the complainant did not make it clear whether he wished the Ombudsman to examine them, and he did not appear to have made the appropriate administrative approaches to the Commission. He was therefore informed in the Ombudsman's letter of 29 October 2004 that he was free to lodge a new complaint with the Ombudsman concerning these issues after having made appropriate administrative approaches to the Commission in accordance with Article 2.4 of the Statute of the European Ombudsman.

THE INQUIRY

The opinion of the Commission

The Ombudsman forwarded the complaint to the Commission and asked it to submit an opinion on the complainant's allegation and claim.

The Commission's opinion can be summarised as follows.

The Commission provided an overview of events which led to the decision to transfer the three above-mentioned language sections from the Luxembourg 1 School to the Luxembourg 2 School. In 1997, the BGES took the unanimous decision to set up the Luxembourg 2 School. In May 2002, the members of the BGES (including the parents' representatives) unanimously accepted the Luxembourg authorities' proposal to locate the Luxembourg 2 School in Mamer.

At the Steering Group's meeting in February 2003, representatives of all members of the School community, including the parents' representatives, agreed with the choice that the Danish, Greek and Italian language sections be transferred from the Luxembourg 1 School to the Luxembourg 2 School, together with parts of the pupil population from the French, English and German language sections. In May 2003, the 2004 budget for the Luxembourg 2 School was approved on the basis of this composition of language sections. In October 2003, the BGES decided on a vertical division of the pupils' population by the two-thirds majority required by the Convention, without making a decision on the distribution of language sections.

At the BGES meeting in January 2004, a second discussion on the distribution of language sections took place and new proposals were requested in this regard from the Steering Group. The Steering Group presented two new alternative methods, both involving a lottery of language sections. It was decided that, should none of them be chosen, the original proposal reflected in the May 2003 budget decision would "automatically" be confirmed. The two new alternative methods consisted of "option 1" - multiple lotteries of language section pairs and "option 2" - multiple lotteries of groups of language sections. However, when these new alternative methods were placed to a vote during this BGES meeting, none of them received the required two-thirds majority support due to the strong opposition from the majority of the BGES members.

The third discussion at the BGES meeting held in Brussels on 15 March 2004 showed that none of the above new alternative methods would receive sufficient support and, therefore, the BGES finally adopted, by a majority vote, the original proposal which was already reflected in the budget decision of May 2003.

The Commission took the view that the decision of 15 March 2004 to transfer certain language sections from the Luxembourg 1 School to the Luxembourg 2 School was made in full respect of the Convention and the Protocol on the Setting-up of a New European School (the "Protocol") and that it is not discriminatory. In consequence, the Commission does not intend to ask for revision of that decision.

The Commission also pointed out that whereas, according to the Convention and the Protocol, a decision to set up a new European School or to modify the terms of the Convention requires unanimity in the BGES, a decision concerning the choice of language sections to be transferred to a new School does not. Moreover, the BGES decisions are definitive and outside the responsibility of the Commission which is only one of its 29 members.

In addition, whenever a new European School opens in the same city some pupils inevitably have to move and some language sections have to be transferred to the new School. The Commission stated that the fact that the process of choosing the language sections to be transferred was complicated does not mean that it was discriminatory. The Commission also pointed out that during the whole process it supported the parents' position as far as possible. For instance, at the BGES meeting in January 2004, it voted in favour of the two new alternative methods presented by the Steering Group.

The Commission further pointed out that, at the time when the decision of 15 March 2004 to transfer the three language sections was adopted, a director had been already appointed for the Luxembourg 2 School. The School was supposed to open in September 2004 and this was also supported by the parents. To allow a situation in which there was a director hired for a School with no pupils (the Luxembourg 2 School) and another director (of the Luxembourg 1 School) having to manage nearly 4000 pupils would not be in line with the Commission's role in promoting good administration and management of resources in the European Schools. Since all other possibilities were exhausted, the Commission voted in favour of the original proposal together with 14 other members of the BGES.

As regards respect for Article 2.1 of the Convention, the Commission stated that there was unanimity in the 1997 BGES as regards the decision to set up the Luxembourg 2 School. The Commission also addressed the issue of respect for Article 3.3 of the Convention. In its view, the Convention provided for a vertical division of an existing School when a new School was established in the same locality, by stipulating that a European School should be organised with a nursery, and primary and secondary cycles of studies. Any modification of this arrangement would require unanimity in the BGES, which was, however, impossible to achieve because Luxembourg refused to even consider a horizontal division of the pupil population. Therefore, the vertical division of the pupil population was maintained.

The complainant's observations

In his observations, the complainant disagreed with the Commission's opinion and maintained his allegation as well as his claim.

The complainant took the view that, by stating that the complexity of the process of choosing the language sections to be transferred does not imply its discriminatory nature, without any further elaboration or explication, the Commission failed to reply to his allegation.

He contested the Commission's opinion as regards respect for both Article 2.1 and Article 3.3 of the Convention. Concerning Article 2.1, the complainant argued that the 1997 BGES merely took note of the necessity to set up a second School in Luxembourg, without voting on the matter. The formal decision to set up the Luxembourg 2 School was made only at the meeting of the BGES in Shannon in May 2003, which was, however, agreed to by a majority and not unanimously. The complainant further submitted that, by adopting the decision of 15 March 2004 to transfer the Danish, Greek and Italian language sections as well as parts of the French, English and German language sections from the Luxembourg 1 School to the Luxembourg 2 School by a majority vote, the BGES violated Article 3.3 (a) of the Convention. In the complainant's view, the fundamental structure of the Luxembourg 1 School was thereby changed and the decision thus required unanimity instead of a mere majority in the BGES. As a consequence, the decision was void and of no effect. The Commission, in its capacity as guardian of the Treaties, should at the time have warned the BGES against that decision and should fight for its revision.

The complainant contested the competence of the Steering Committee to be active in the above-mentioned process, and stated that certain references to the provisions of the Convention in the Commission's opinion were incorrect, such as the requirement of a unanimous decision of the BGES for a modification of the terms of the Convention (p. 1) and the requirement that a European School should be organised with a nursery, and primary and secondary cycles of studies (p. 2).

The complainant also appeared to submit one new allegation: he considered that the Commission, contrary to the statement in its opinion, had never provided the Parents' Association with any form of help or support during the whole process leading to the establishment of the Luxembourg 2 School.

As regards the Commission's view concerning good administration, the complainant mainly submitted that the fact that a director had already been appointed for the Luxembourg 2 School did not justify the Commission's vote in favour of the original proposal concerning the distribution of language sections.

In the conclusion of his observations, the complainant also referred to the Ombudsman's decision in case 845/2002/IJH, in which the Ombudsman confirmed his view that the Commission's responsibility includes the promotion of good administration by the European Schools. In this regard, the complainant asked whether the maladministration alleged in the present complaint should not lead the Ombudsman to open an own-initiative inquiry, as indicated in his decision closing the above case.

THE DECISION

1 Preliminary remarks
Scope of the inquiry

1.1 According to Article 195 of the EC Treaty, the Ombudsman is empowered to conduct inquiries into instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.

1.2 The Ombudsman recalls that he has consistently taken the view that the European Schools are not a Community institution or body. However, the Ombudsman is competent to deal with complaints concerning European Schools, insofar as the complaint is directed against the Commission which has, in the Ombudsman's opinion, a general responsibility arising from its representation on the BGES and the provision of funding to the Schools by the Communities, but not extending to matters of internal management(4).

The complainant's additional query

1.3 As regards the complainant's question of whether the maladministration alleged in the present complaint should not lead the Ombudsman to open an own-initiative inquiry as indicated in his decision closing case 845/2002/IJH, the Ombudsman would like to draw the complainant's attention to the fact that the own-initiative inquiry opened following that decision was inquiry OI/5/2003/IJH (referred to in footnote 4 of this Decision).

The issue of respect for Articles 2.1 and 3.3(a) of the Convention

1.4 In an explanatory note attached to the complaint, the complainant also submitted that the procedures foreseen by Articles 2.1 and 3.3(a) of the Convention had not been respected when the decisions to create the Luxembourg 2 School and to transfer the Danish, Greek and Italian language sections to that School were taken. As the complainant did not make clear whether he wished the Ombudsman to examine these issues, and he did not appear to have made the appropriate administrative approaches to the Commission, he was informed in the Ombudsman's letter of 29 October 2004 that he was free to lodge a new complaint to the Ombudsman concerning these issues after having made appropriate administrative approaches to the Commission in accordance with Article 2.4 of the Statute of the European Ombudsman.

1.5 The Ombudsman notes that the Commission and the complainant nevertheless referred to this issue in their opinion and observations respectively.

1.6 The Ombudsman points out, however, that this issue is not the object of the present inquiry.

The new allegation

1.7 In his observations, the complainant alleged that during the whole process leading to the establishment of the Luxembourg 2 School , the Commission never provided the Parents' Association with any form of help or support.

1.8 The Ombudsman considers that the issue raised by the complainant is outside the scope of the original complaint and that, in accordance with Article 2.4 of the Statute of the European Ombudsman, the complainant should make the appropriate administrative approaches to the Commission before turning to the Ombudsman concerning the matter, but he remains free to lodge a new complaint to the Ombudsman after having made them.

1.9 The Ombudsman therefore confines his decision to the complainant's original allegation and claim.

2 The Commission's vote of 15 March 2004

2.1 The complainant alleges that the Commission should have voted against the proposal, adopted during the meeting of 15 March 2004, to transfer certain language sections to the Luxembourg 2 School, because it was discriminatory.

On the basis of the available evidence, the Ombudsman understands the factual background of the complainant's allegation to be as follows:

At the Steering Group's meeting in February 2003, representatives of all members of the School community, including those of parents, accepted the proposal to transfer the Danish, Greek and Italian language sections from the Luxembourg 1 School to the Luxembourg 2 School together with parts of the pupil population from the French, English and German language sections. At the BGES meeting in May 2003, the 2004 budget for the Luxembourg 2 School was approved on the basis of this composition of language sections. After the discussions concerning the distribution of language sections at the BGES meetings in October 2003 and January 2004 respectively, there was a third discussion of that matter at the BGES meeting on 15 March 2004 after which a vote was held on the matter. The Commission, along with 14 other members of the BGES, voted in favour of the above proposal to transfer the Danish, Greek and Italian language sections from the Luxembourg 1 School to the Luxembourg 2 School.

2.2 As regards the Commission's position, the Ombudsman takes into consideration both the Commission's opinion sent on 3 February 2005 and its letter to the complainant of 6 September 2004, of which the complainant forwarded a copy to the Ombudsman on 20 October 2004.

2.3 The Commission takes the position that the decision of 15 March 2004 to transfer the Danish, Greek and Italian language sections from the Luxembourg 1 School to the Luxembourg 2 School was made in full respect of the Convention and the Protocol.

In the opinion and in the letter to the complainant of 6 September 2004, the Commission stated, in summary, the following reasons to justify its vote of 15 March 2004 in favour of the proposal to transfer the Danish, Greek and Italian language sections to the Luxembourg 2 School, presented at the Steering Group's meeting of February 2003 (the "original proposal"):

First, the Commission considered that the original proposal was not discriminatory.

Secondly, the Commission pointed out that (a) support for the original proposal was given by the majority of the members of the BGES, where the Commission is only one member out of 29, and the Commission aligned itself with the majority of the Member States, and (b) reasons of good administration required the opening of the Luxembourg 2 School, given that a director had been already appointed for that School and the budget approved for that aim, in September 2004.

2.4 The Ombudsman will examine below the Commission's arguments as regards its decision to support the choice of the language sections contained in the original proposal.

The Commission's argument that the choice of the language sections was not discriminatory

2.5 The Ombudsman points out that according to the established case-law(5), the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently unless such treatment is objectively justified (that is, based on objective criteria). As a consequence, the difference in treatment of certain language sections of the Luxembourg 1 School can only amount to discrimination if it was not based on objective criteria.

2.6 The Ombudsman further notes that the Commission, in its letter of 6 September 2004(6), stated that two basic objectives had been taken into consideration when taking the decision to transfer the Danish, Greek and Italian language sections from the Luxembourg 1 School to the Luxembourg 2 School together with parts of the pupil population from the French, English and German language sections : (a) the objective of a balance between students from new and old Member States, and from northern, southern, eastern and western Member States, and (b) the objective that language sections of the three principal languages (les langues véhiculaires) be foreseen for both Schools.

2.7 On the basis of the available evidence, the Ombudsman takes the view that, in order to achieve the objectives in (a) and (b) above, it was necessary that some language sections of the Luxembourg 1 School be transferred to the Luxembourg 2 School, whilst other language sections would continue in the Luxembourg 1 School. Therefore it appears that different treatment of language sections of the Luxembourg 1 School was necessary.

2.8 In the light of the above, in the Ombudsman's view, given that the choice of language section appears to be based on objective criteria and that the concrete actions taken were necessary to achieve the above objectives, the Commission's argument that it supported the original proposal because it was not discriminatory is reasonable.

The Commission's further arguments

2.9 First, the Ombudsman considers it useful to point out that he has already recognised in his previous decisions the limitation on the Commission's powers with regard to the running of the European Schools resulting from the fact of being only one out of a large number of members of the BGES (decisions closing the cases 199/23.10.95/EP/B/KT, 989/97/OV and OI/5/2003/IJH)(7).

2.10 In this context, the Ombudsman takes note of the Commission's opinion in the Annual Report from the European Commission to the European Parliament on the Functioning of the European Schools System that in spite of its single vote (out of 29) and, therefore, its limited power, the Commission is often held accountable by parents and EU staff for decisions taken by the BGES or directors of the Schools(8).

2.11 Secondly, the Ombudsman notes that, according to the Commission, the discussion prior to the voting at the BGES meeting on 15 March 2004 showed that none of the new alternative methods involving a lottery of language sections would receive sufficient support and that only the original proposal was supported by the required majority of the BGES members.

2.12 Finally, the Ombudsman notes the Commission's reference to the fact that the director for the Luxembourg 2 School had already been appointed and the 2004 budget approved.

2.13 In the light of the above, and taking into account that the original proposal appears not to be discriminatory, the Ombudsman considers that the arguments concerning the Commission's alignment with the majority of BGES members and concerning the good administration and sound management of the Community resources (the Communities are the main contributor to the budget of the European Schools) seem reasonable.

3 The complainant's claim

3.1 The complainant claimed that the Commission should ask for the revision of the decision to transfer certain language sections to the Luxembourg 2 School.

3.2 The Commission stated that, for the reasons mentioned in point 2.3 above, it did not intend to ask for a revision of the decision of 15 March 2004 or to take any further action on this matter. Moreover, the Commission added that the decisions of the BGES are definitive.

3.3 The Ombudsman again notes the limitation on the Commission's powers with regard to the running of the European Schools addressed in point 2.9 above and recalls that, according to Article 10 of the Convention, it is the BGES and not the Commission who shall supervise the implementation of the Convention.

3.4 In the light of the above findings, the Ombudsman considers that the complainant’s claim cannot be sustained.

3.5 In this context, the Ombudsman wishes to point out that, on 8 September 2005, the European Parliament adopted the Resolution on options for developing the European Schools system. In this Resolution, the Parliament reiterated its call for the BGES to revise the criteria for establishing, maintaining and closing individual language sections in individual Schools(9).

3.6 Therefore, the Ombudsman indicates the possibility open to the complainant to pursue the matters raised in the present complaint through the political process, for example, through a petition or by contacting the parliamentary committees responsible for drafting the above-mentioned Resolution.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, the Ombudsman concludes that the inquiry has not revealed an instance of maladministration. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Article 2.1:

"The Board of Governors, acting unanimously, may decide to establish new Schools."

(2) Article 3.3(a):

"Any proposal to modify the fundamental structure of a School shall require a unanimous vote of the Member State representatives on the Board of Governors."

(3) OJ 1994 L 212, p. 3.

(4) Cases 199/23.10.95/EP/B/KT ( 1996 Annual Report, pp. 35 - 36; http://www.ombudsman.europa.eu/report96/pdf/en/rap96_en.pdf), 989/97/OV (1997 Annual Report, p. 20; http://www.ombudsman.europa.eu/report97/pdf/en/rap97_en.pdf), as well as cases 845/2002/IJH and OI/5/2003/IJH, both available at http://www.ombudsman.europa.eu/decision/en/default.htm.

(5) For example the Case T-33/02 Britannia Alloys & Chemicals v. Commission, judgment of 29 November 2005 (not yet reported), paragraph 60; as well as Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and others, judgment of 12 July 2005 (not yet reported), paragraph 115.

(6) This letter is referred to in point 2.2 above.

(7) All referred to in footnote 4 above.

(8) Report of 11 October 2005, last paragraph in point 3.3; Available at the following link: http://eur-lex.europa.eu/LexUriServ/site/en/com/2005/com2005_0482en01.pdf.

(9) See point 13, available on the Parliament's website at: http://www.europarl.europa.eu/omk/sipade3?PUBREF=-//EP//TEXT+TA+P6-TA-2005-0336+0+DOC+XML+V0//EN&L=EN&LEVEL=2&NAV=S&LSTDOC=Y&LSTDOC=N.