The background to the complaint

1. The complaint concerns tuition in Danish at the European School in Culham (UK). The European School in Culham was set up as a teaching establishment for the children of EU staff working for the Joint European Torus (JET)[1]. Given that JET is about to be replaced by ITER[2], which is located in France, the intention is to close the European School in Culham by 2017. A specific plan for the phasing-out of the School has been adopted by means of a decision of the Board of Governors of the European Schools. This involves various transitional measures.

2. The Culham School students are divided into three categories:

Category 1: Children of employees of JET, of teachers, and of the school's administrative and service personnel.

Category 2: Children who are eligible for admission due to a contract between their parents' employer and the School.

Category 3: Students who do not fulfil the requirements for Categories 1 or 2. They are admitted only if there is space in the relevant language section and must pay school fees.

3. Children in Categories 1 and 2 are automatically eligible for admission to the School. At the time of the complaint to the European Ombudsman, it appears that 79 pupils fell within Category 1, of which about 25 were children of JET staff. The other Category 1 pupils were children of teachers at the School.

4. Since 1984, the Culham European School has provided some courses in Danish. This necessitated having one Danish teacher giving courses in Danish throughout the primary and secondary cycle. At the time of the complaint, there were no Category 1 or 2 children taking this language option, but only Category 3, fee-paying students doing so. The complainants have children in the primary section who are Category 3 students taking courses in Danish.

5. In July 2010, the European Commission took the view that there was no legal basis for it to provide funding for teaching in Danish. It thus issued a recovery order of £ 212 000 for money paid out of the 2008-2010 budgets. The Board of Governors of the European Schools then decided to eliminate the Danish position as from September 2011. The Commission eventually decided not to pursue the recovery order.

The subject matter of the inquiry

6. In their complaint to the Ombudsman, the complainants alleged that the Commission wrongfully pressured the European School in Culham to discontinue the teaching of Danish.

7. The complainants argued that the Commission used the recovery order to enforce its will on the School. They argued that the Commission's decision not to pursue the recovery order was only taken following the School's decision to suppress the teaching of Danish. The complainants therefore argued that, by issuing the recovery order, the Commission (i) abused its power, (ii) violated the fundamental rights of the children, and (iii) discriminated against the children who are taught Danish.

8. The complainants claimed that the Commission should take action to allow for the continued teaching of Danish at the European School in Culham.

The inquiry

9. The Ombudsman asked the Commission to submit an opinion on the complaint by 30 September 2011.

10. In his letter to the Commission opening the inquiry into the complaint, the Ombudsman asked the Commission to:

1) explain its recovery order in light of the Board of Governors' decision to give discharge to the 2008 budget for the European Schools;

2) comment on the complainants' argument that the teaching of Danish in Culham should be seen as equivalent to a language section, particularly in light of the 1984 decision of the Board of Governors referring to "la section danoise";

3) explain whether (and if so, how) it considers the SWALS[3] rules to be applicable to the teaching of Danish in Culham, given that such teaching was decided upon long before the SWALS rules were established;

4) consider the recovery order and its consequences in light of Article 24(2) of the Charter of Fundamental Rights[4];

5) explain in what way it considers the teaching of Danish in Culham not to be in conformity with the SWALS rules;

6) explain whether it considers that the School in Culham should have known that the teaching of Danish was not in conformity with the SWALS rules. When replying, the Commission was invited to bear in mind its response of 10 November 2010 to a Parliamentary Question from Mr Løkkegaard MEP, in which it appeared to outline that the applicable rules needed to be clarified; and

7) explain whether it considers itself to have the mandate to clarify rules established by the Board of Governors of the European Schools.

11. The opinion was forwarded to the complainants, who submitted their observations on 30 November 2011.

12. In a letter dated 29 February 2012, the Ombudsman asked the Commission to provide certain further information. The further information, provided in a letter dated 27 April 2012, was forwarded to the complainants, who submitted further observations on 27 June 2012.

The Ombudsman's analysis and conclusions

Preliminary remark

13. Before entering into an analysis of the present case, the Ombudsman points out that his inquiry is limited to reviewing the acts and possible omissions of the Commission. The European Schools are not EU institutions, bodies, offices or agencies and do not, therefore, fall within the investigatory mandate of the Ombudsman. If, in his analysis, the Ombudsman has to take a position on underlying decisions, actions or statements made within the remit of the European Schools, this is done only in order to determine the appropriateness of the Commission's actions.

A. Allegation of wrongful pressure

Arguments presented to the Ombudsman[5]

The complaint and the Commission's opinion

14. According to the complainants, the Commission used the recovery order to enforce its will on the European Schools. In fact, once, in December 2010, the Board of Governors had taken its decision to suppress the Danish post in the Culham School, the Commission decided not to pursue the recovery order. The complainants referred the Board of Governors' decision to the Complaints Board of the Schools, and the defence put forward by the Board of Governors before the Complaints Board of the Schools was mainly built on the Commission's argument that the teaching of Danish at the school in Culham is illegal. This is despite the fact that (i) the Board of Governors' decision was based on a completely different reason, namely, the change of status of the School, and (ii) in September 2010, the Secretary-General of the Schools put forward strong objections to the illegality argument.

15. The complainants considered that the Commission abused its powers for the following reasons. In April 2010, the Board of Governors voted to discharge the 2008 budget. It was only the Commission that voted against the discharge. The complainants argued, however, that the Commission does not have a veto power over the discharge of the budget. In their view, the Commission does not appear to recognise the decision of the Board of Governors as a legal basis for the 2008 budget.

16. The complainants further argued that the Commission justified its actions by referring to rules which were yet to be adopted, namely, a proposed clarification of the SWALS rules. It also referred to the Board of Governors' decision of December 2010 as the basis for its recovery order issued in July 2010. This, in the complainants' view, was contrary to the rule of law.

17. According to the complainants, the Commission applied general rules to an institution in transition. The Commission's main reasoning was that there are not enough Danish Category 1 students at the Culham School. However, when the Commission issued the recovery order, that School was already being phased out according to plan. Assuming that the SWALS rules applied, the complainants argued, first, that it is inappropriate to apply general rules to an institution that is already in transition, and, second, that the Danish section is in no way particular at the school, since all sections have very few Category 1 children.

18. The complainants also argued that the Commission stopped pursuing the recovery order for ad hoc reasons. It did so because it was satisfied that sufficient savings were made in the relevant school year. If the recovery order was legitimate, the Commission should have followed it through. The Commission thus abused its powers in order to put pressure on the Schools to make arbitrary savings.

19. The complainants argued that the Commission breached the fundamental rights of the children because it did not take into consideration their best interests. They referred to rules established by the Board of Governors (the so-called Gaignage criteria[6]) for the phasing out of language sections. These rules were put in place solely with the best interests of the children in mind. However, they were not applied in the present case. It was decided to continue to provide tuition in Danish to the children in the secondary but not the primary cycle. This was, they argued, not in the best interests of the children.

20. The complainants submitted that the European Schools cannot discriminate against children once they have been admitted. Even if the SWALS rules should be considered applicable, these rules do not allow discrimination by category, once children have been admitted. According to the complainants, the Commission therefore took discriminatory action against those children who were taught in Danish.

21. In the opinion it submitted to the Ombudsman, the Commission explained that the Culham School has three linguistic sections: English, German and French. The three sections have always been clearly referred to in all the documents related to the budget and in the annual reports. The question of creating a 'Danish section' was discussed by the Administrative Board of the School in 1982. The Board did not, however, adopt any decision along those lines. The practice at Culham seems to have been systematically to offer Danish lessons to all Danish pupils since the 1980s, but there is no official decision emanating from the European School system to that effect. In his letter to the Commission dated 1 October 2010, the Director of the Culham School did not refer to any decision regarding Danish lessons, but rather to "common practice".

22. According to the Commission, the rules governing the SWALS were adopted in 1998 by means of a decision of the Board of Governors. This decision explicitly revokes and replaces all previous decisions or practices. In line with the rules governing the SWALS, Category 3 pupils can only attend mother tongue courses if those courses have already been created for Category 1 or Category 2 pupils. The different conditions applicable to different categories of pupils are the result of different contractual conditions and related school fees. In the meeting of the Board of Governors held in April 2011 in the context of budgetary difficulties, several decisions were adopted in order to rationalise cost efficiency and to control the budget evolution in the European Schools. These decisions related to the organisation of courses and options, including the SWALS issue.

23. The Commission stated that a decision was taken concerning the SWALS which clearly states that "[f]rom 1 September 2011, category 3 pupils shall learn as L1 the language of the section in which they are enrolled[[7]]. Category 3 pupils who were enrolled before 1 September 2011 and who learnt as L1 a language different from that of the section can continue with the same L1 up to the end of their schooling in order to ensure pedagogical continuity." According to the Commission, this decision renders legal, from 1 September 2011, under certain conditions, the courses given to Category 3 pupils without the presence of Category 1 pupils in the class, in order to assure pedagogical continuity. It also makes clear that these courses indeed did not exist in the Culham School before the April 2011 decision was taken.

24. As regards the recovery process, the Commission stated that, according to the EU Financial Regulation, there has to be a legal basis for all expenditures financed by the EU budget. It appeared that, in several schools, the organisation of mother tongue language courses for SWALS pupils was not in line with the rules established by the Board of Governors. The Commission, which is in charge of executing the EU budget, therefore had to issue recovery orders for this expenditure, on the basis of the Financial Regulation. Given that the Culham School rectified the situation, the Commission decided not to pursue the recovery order. The issue had been discussed by the Board of Governors on several occasions and the Member States did not contest the Commission's position.

25. In response to the Ombudsman's first request, the Commission stated that the discharge of the 2008 budget was discussed during the meeting of the Board of Governors held in April 2010. At the meeting, the Commission representative explained that, when analysing the proposed budget for 2011, the Commission had noted a sharp increase in certain appropriations, including those earmarked for SWALS. The analysis showed that a number of schools had not properly implemented the decisions of the Board of Governors. An analysis of the Secretary-General's document aimed at explaining the reasons for the creation of certain courses for SWALS confirmed that certain schools had failed to respect the rules.

26. According to the Commission, the Court of Auditors had mentioned that, in using the available EU funds, there were two 'irregularity criteria' to be considered: the sums of money involved and the use made of those sums. Use of the appropriations for expenditure not justified by the rules and regulations governing SWALS indicated a lack of control.

27. In respect of the Ombudsman's second request, the Commission argued that there had never been a 'Danish section' at the Culham School. Danish had never been used to teach any other disciplines (it was only taught as a language course).

28. The Commission answered the Ombudsman's third request by referring to the rules applicable to SWALS pupils, which explicitly mention that the decision repeals and replaces all previous decisions.

29. In respect of the Ombudsman's fourth request, the Commission referred to the document of the Council of the EU entitled "Charter of Fundamental Rights of the European Union, Explanations relating to the complex text of the Charter", according to which, Article 24 of the Charter is based on the New York Convention on the Rights of the Child signed in November 1989 and ratified by all Member States, and particularly Articles 3, 9, 12 and 13 thereof. According to the Commission, it does not follow from these provisions that there is a right to mother tongue education. The Commission stated that if it were true that failure to provide Danish lessons to Danish children living in a non-Danish-speaking country breached the Charter of Fundamental Rights, then most schools in the EU would be acting in breach of the Charter.

30. In response to the Ombudsman's fifth request, the Commission stated that the fact that the Culham School created Danish mother tongue courses with no category 1 or 2 pupils but with category 3 pupils only, is not in conformity with the 1998 decision on SWALS.

31. In respect of the Ombudsman's sixth request, the Commission stated that the School is supposed to know the rules and to comply with the decisions of the Board of Governors. The Commission reiterated that it is clear from the 1998 decision that Category 3 pupils can only have access to mother tongue education when the course has already been created for Category 1 or 2 pupils. The reason for this is because, in that situation, no additional costs are involved. However, additional costs are occasioned when a course is created only for Category 3 pupils. Hence the conclusion that the Culham School had not complied with the relevant rules.

32. The Commission submitted that it could be argued that to maintain the course after the departure of Category 1 or 2 pupils in cases where a Category 3 pupil was no longer able to change his or her linguistic regime, for instance at the end of the secondary cycle, could be in the child's educational interest. However, such an argument presupposes a case-by-case examination of the question, and cannot therefore justify the decision which was taken at the Culham School to offer these courses systematically to all pupils in all circumstances. That decision was clearly not in line with the 1998 decision on SWALS.

33. In response to the Ombudsman's seventh request, the Commission stated that the rules adopted by the Board of Governors are clear and do not have to be the subject of further interpretation in order to be applied.

34. The Commission added, however, that experience has shown that the application of these rules could raise difficulties in respect of pedagogical continuity in some particular situations, that is, where Category 3 pupils had benefited from mother tongue education for many years (because the course had already been created for Category 1 or 2 pupils). If the course could not be continued after the Category 1 or 2 pupils had left the school, the Category 3 pupils would not be able to adapt to another linguistic regime in the school. That is the reason why the SWALS rules were revised in April 2011 so that no L1 SWALS courses would be given to Category 3 pupils even if the course exists for other categories of pupils. Nevertheless, those Category 3 pupils who already received mother tongue education in the school year 2010-2011 would be able to continue receiving mother tongue education, irrespective of the presence of other categories of pupils.

35. The Commission concluded that it had not "wrongfully pressured" the Culham School concerning the Danish courses. Such a formulation implies that the Commission forced the School to withdraw a decision that was legal. On the contrary, the decision concerned was not lawful and the Commission therefore had a duty to ensure that the situation was brought to an end.

36. In their observations on the Commission's opinion, the complainants first gave an overview of recent developments with respect to tuition in Danish at the Culham School. In February 2011, some parents at the School, including the complainants, challenged before the Complaints Board the Board of Governors' decision to suppress the Danish teacher post at Culham. In March 2011, two days before the Complaints Board was to initiate its urgent deliberations, the Danish post was extended until 2012 by administrative action. In April 2011, the Board of Governors annulled its decision and confirmed the decision to maintain the Danish post until 2012. In May 2011, the Complaints Board ruled in the parents' favour in respect of the legal expenses, whereas a ruling on the claim for annulment was no longer necessary. The complainants pointed out, however, that the future of tuition in Danish remains unclear beyond 2012. The intervention of the Commission therefore still has consequences.

37. The complainants argued that, while it defends the recovery order, the Commission's opinion fails to address the fact that the Board of Governors decided to give discharge to the 2008 budget. The complainants did not dispute that Danish has only been taught as L1. However, they found it remarkable that the Commission disputed the existence of the Board of Governors' 1984 decision referring to "la section danoise". This decision made clear that admission to tuition in Danish was not restricted to Category 1 pupils.

38. In the complainants' view, the Commission's opinion only discussed the SWALS rules in general, without engaging in the question whether the SWALS rules are applicable to tuition in Danish at the Culham School. The complainants pointed out that there is disagreement over the interpretation of the SWALS rules. The Secretary-General of the European Schools wrote to the Commission on 30 September 2010, stating that: "[s]'agissant de l'enseignement du danois à Culham qui remonte à 1983, l'on peut se demander si la décision de Copenhague de 1998, prise sur proposition de la présidence danoise en vue d'élargir le droit à l'enseignement de la L1 aux élèves SWALS de Cat II visait à la suppression de cet enseignement lorsqu'elle mentionne qu'elle annule et remplace les décisions antérieures (de fait, une décision de 1992), alors que les autorités danoises ont continué à détacher officiellement des professeurs pour assurer cet enseignement." According to the complainants, the Secretary-General thus took the view that the 1998 decision replaced the general rules as from 1992, but not the decision on the Danish post, which continued to apply unchanged. This was confirmed in a letter from the Culham Head Teacher to the Commission, dated 1 October 2010, in which he wrote that "the 1998 Board of Governors' decision, which you cite as the justification for the budget penalties you intend to impose on us, was never meant to implicate the teaching of Danish at Culham".

39. According to the complainants, leaving aside the 1984 decision, another issue is whether tuition in Danish should be re-evaluated on a yearly basis. The complainants argued that the Commission's position is that, in any given school year, there has to be a Danish category 1 pupil in each of the 10 classes in which there are Danish children in order for tuition in Danish to be justified. The remedy proposed by the Commission, that all Danish category 3 pupils change their L1 with immediate effect, goes against educational continuity, as laid down in the 1998 decision. The complainants further argued that, even if the Commission's interpretation of the rules were correct, it is inappropriate to apply the general rules to a school which is in transition precisely because of the low number of category 1 pupils.

40. According to the complainants, their argument was not that there is a general right to tuition in Danish for Danish children in a non-Danish speaking country. The complainants' view is that Article 24(2) of the Charter of Fundamental Rights concerns the consequences that specific administrative actions may have for the children involved. Up until the intervention of the Commission, the Board of Governors respected Article 24(2) in the phasing out of sections and the plan for the phasing out of the Culham School. In the complainants' view, the Commission infringed Article 24(2) when it decided to short-circuit normal procedures and take direct action. There is no evidence that the Commission even considered the consequences for the children.

41. The complainants argued that the Commission did not seem to have gathered information about prior departures of Category 1 and 2 pupils who had been taught Danish. According to the complainants, an even more basic question is whether the parents should have known about a possible breach of the SWALS rules when entering into an implicit educational contract for their children at the time of admission.

42. The complainants further argued that Article 13 of the Convention Defining the Statutes of the European Schools describes the budgetary process in some detail and implies that the budget is set and implemented by the Board of Governors. The Board of Governors' April 2010 decision to give discharge to the 2008 budget therefore gives sufficient legal basis for the expenditure by the EU budget. According to the complainants, the Convention gives the Commission two possible courses of action. First, it could have made another attempt at convincing the Board of Governors. Second, it could have brought the matter before the Court of Justice of the EU in accordance with Article 26. Issuing a recovery order against the schools was not an option as Article 21 states that the Head Teacher is responsible to the Board of Governors.

The Ombudsman's further inquiries

43. Having analysed the arguments and information provided by the complainants and the Commission, the Ombudsman found it necessary to ask the Commission to provide further information to help him continue his inquiry into the complaint.

44. Accordingly, the Ombudsman asked the Commission the following questions:

(1) Can the Commission confirm whether or not there are currently Danish courses at Culham which have never had category 1 or 2 pupils (that is, were there Danish courses created to cater only for category 3 pupils?);

(2) If Question 1 is answered in the affirmative, at what point in time did the Commission learn that SWALS courses were being created at Culham only for category 3 pupils; 

(3) Also if Question 1 is answered in the affirmative, what measures did the Commission take to inform the School about its view that the SWALS rules were being disregarded and when; and

(4) In the event that any specific SWALS course was created in disregard of the SWALS rules, does the Commission consider that the students enrolled in those courses have, nonetheless, a right to pedagogical continuity?

45. The Ombudsman noted the Commission's statement that it could be argued that it is in a child's educational interest to maintain a Danish course after the departure of Category 1 or 2 pupils in those cases where a Category 3 pupil is no longer able to change his or her linguistic regime (for instance at the end of the secondary cycle). He further noted, however, that the Commission went on to state that such an argument presupposes a case-by-case examination of the question. The Commission was therefore asked to explain:

(5) Whether case-by-case examinations were carried out in respect of any category 3 pupils being taught Danish at Culham;

(6) What were the criteria used to carry out the case-by-case examinations? and

(7) What were the outcomes of such examinations?

46. The Ombudsman noted that the revised SWALS rules stipulate that "[f]rom 1 September 2011, category 3 pupils shall learn as L1 the language of the section in which they are enrolled. Category 3 pupils who were enrolled before 1 September 2011 and who learnt as L1 a language different from that of the section can continue with the same L1 up to the end of their schooling in order to ensure pedagogical continuity." The Commission was asked to explain:

(8) Whether it considers the principle underpinning this provision to be applicable to the pupils already being taught Danish at Culham (including those taught in a course which never had Category 1 or 2 pupils) and, in case the answer is negative, why not.

47. The Ombudsman further noted that the Board of Governors appears to have annulled its decision to suppress the teaching of Danish at Culham and confirmed the decision to maintain the Danish post until 2012. The Commission was asked to:

(9) Explain its stance in respect of the recovery order following the annulment of that decision.

48. The Ombudsman finally noted the Commission's statement that it had to issue a recovery order for the expenditure in relation to SWALS courses that, in its view, were not in line with the SWALS rules. However, given that the Commission contributes only about 50% of the budget of the European Schools, and that the Danish teacher was seconded, that is, that his or her salary appears to have been paid by Denmark, the Commission was asked to:

(10) Clarify precisely how it calculated the expenditure to be recovered for the benefit of the EU budget.

The arguments presented to the Ombudsman in response to his further inquiries

49. In response to the Ombudsman's first question, the Commission stated that there are Danish courses at the Culham School that have never had Category 1 or Category 2 pupils. According to the Commission, the decision taken at the meeting of the Board of Governors on 12-14 April 2011 provides that "those category 3 pupils, already in the system and who have benefited from mother tongue tuition L1 SWALS will be able to continue these courses". The Commission stated that it learnt that Danish courses were being created only for Category 3 pupils during the preparations for the 2011 budget. Whilst checking the income and expenditure, the Commission noted an increase in the EU contribution and asked for details. There were subsequent exchanges of correspondence with the Culham School management in order to draw their attention to the SWALS rules as they stood at the time.

50. In response to the Ombudsman's fourth question, the Commission argued that its action is in line with the above-mentioned decision of the Board of Governors which, in particular, guarantees pedagogical continuity for all pupils already in the system, and gives them a right to continue their mother tongue tuition. In response to questions five to seven, the Commission stated that, since all students of all categories which were already in the system before September 2011 have the right to continue their language courses, there is no need to carry out case-by-case studies. The Commission further stated that the revised SWALS rules, decided by the Board of Governors, are applicable to all European Schools, including the one in Culham.

51. In respect of the recovery order, the Commission stated that it informed the Culham School of the courses that were not in line with the rules, announcing the envisaged recovery procedure. Since the School management made efforts to regularise the courses and organise them in a more efficient way, the Commission decided not to proceed with the recovery procedure. According to the Commission, the calculations on the expenditure were based on information given by the schools. Seconded teachers are only requested from the respective Member States when they can be offered a full timetable. If this is not the case, the school recruits teachers locally for the real tuition time needed. In either case, the school ensures that teachers are available.

52. The Commission concluded that it does not consider that it has behaved inappropriately towards the Culham School in respect of the Danish courses. The Commission is obliged to ensure that the rules are respected in all European Schools. At the same time, the Commission pointed out that all pupils already in the system are entitled to continue their mother tongue tuition.

53. The complainants presented an overview of recent developments regarding the matter, stating that the Board of Governors eventually also decided to extend the Danish post for the year 2012/13 and to make subsequent annual reviews. According to the complainants, the consequence of this is that considerable uncertainty continues to affect their children. In the complainants' view, this uncertainty is unnecessary, given that the number of Danish pupils is such that the Danish teacher is likely to have a full timetable until at least 2015, with a possibility of a small shortfall of Danish pupils in 2015-17. This shortfall is largely a consequence of the intervention of the Commission in 2010, which caused the school to stop admitting Danish Category 3 pupils, thus deviating from the practice originating from the 1984 decision to create "la section Danoise". In the complainants' view, it appears as if the Board of Governors continues to be prepared to compromise the pedagogical continuity of the children in order to guard against the rather small risk of having too much teaching capacity in 2015-17. The Commission's statement that seconded teachers are only requested from the respective Member States when they can be offered a full timetable indicates that it supports and possibly prompted this approach. As a result, the complainants remain concerned about the long-term consequences of the Commission's intervention in 2010.

54. The complainants argued that the Commission has not provided any evidence in support of its answer to the Ombudsman's first question. They stated that the overall number of Category 1 pupils at the Culham School had dropped and that, given this low proportion of Category 1 pupils, it was unreasonable for the Commission to require that each level should have a Category 1 pupil. The complainants further stated that informal sources indicate that at least one of the contested courses for the period 2007-2010 was originally opened for Category 1 pupils. In addition, there were some vertical groupings of pupils across class levels.

55. According to the complainants, the Commission knew about the general drop in category 1 pupils at the Culham School long before 2010, particularly since the institution was involved in the decision to close the Culham School for precisely that reason. In addition, the issue of providing tuition in Danish must have been discussed by the Administrative Board of the School in the period 2000-2010 at least on the two occasions, when arrangements for new secondments of teachers were made. In the complainants' view, it is therefore not likely that the Commission was unaware, before 2010, that SWALS courses were being created for Category 3 pupils. It is more likely that the Commission's intervention was prompted by the financial crisis.

56. In respect of the Commission's answer to the Ombudsman's fourth question, the complainants stated that it is not clear how the Commission's action in 2010 could have complied with a decision that had not yet been made, that is, the Board of Governors' decision of April 2011. According to the complainants, the Commission's action in 2010 aimed at terminating tuition in Danish with immediate effect, disregarding the principle of pedagogical continuity. The Commission's reply to the Ombudsman does not clarify its present position in respect of pedagogical continuity.

57. The complainants argued that the Commission's response to the Ombudsman suggests that no case-by-case studies were carried out prior to its intervention in 2010. The complainants further argued that the Commission's response to the Ombudsman's eighth question is indirect, since it stated that the rules decided by the Board of Governors are applicable to all European Schools, but it left unclear what the Commission's own position is on the issue. According to the complainants, it remains unclear whether its stance regarding the matter changed as a consequence of the April 2011 decision of the Board of Governors and whether the recovery order against the Culham School is annulled or merely suspended. On the basis of the foregoing, the complainants upheld their allegation and claim against the Commission.

The Ombudsman's assessment

58. The Ombudsman considers that, when analysing the events, it is necessary to take due account of the children's best interests, in line with Article 24(2) of the Charter of Fundamental Rights of the European Union.

59. There is clearly no fundamental right for children living abroad to be offered mother tongue education. However, if mother tongue education is already provided to children, due account must be taken of the interests of the children concerned who have already commenced their education in that language.

60. Since their adoption in 1998, the SWALS rules have been applicable to tuition in Danish at the Culham School. The SWALS rules were changed in 2011 and, as of 1 September 2011, Category 3 pupils were excluded from participating in any SWALS language courses. The new rules state, however, that Category 3 pupils who were admitted to SWALS language courses before 1 September 2011 can continue such language courses up to the end of their schooling in order to ensure pedagogical continuity.

61. The Ombudsman points out that the complainants' children, who are Category 3 pupils at the Culham School, began attending courses in Danish before 1 September 2011.

62. It appears that specific SWALS language courses in Danish were created at the Culham School in years when there were no Category 1 or 2 pupils requiring that course. The Ombudsman agrees with the Commission that the act of creating a specific SWALS language course only for Category 3 pupils was contrary to the SWALS rules. Accordingly, most of the courses taught in Danish at the Culham School appear not to have been created in line with the SWALS rules. However, in the Ombudsman's view, any misapplication of the SWALS rules by the school is not the fault of the pupils concerned. In addition, once they began attending such courses, they acquired a legitimate interest in pedagogical continuity. That legitimate interest in pedagogical continuity simply cannot be ignored.

63. The Ombudsman notes, from his further inquiries, that tuition in Danish at the Culham School has not been blocked. The Commission has now made clear that all pupils of all categories, who were already benefiting from mother tongue tuition (such as students benefiting from tuition in Danish at the Culham School) before the SWALS rules were changed in September 2011, have the right to continue their language courses. The Ombudsman notes that this right also applies to pupils benefiting from mother tongue courses that were created contrary to the SWALS rules, such as certain Danish courses at the Culham School. The Ombudsman therefore finds that the Commission has ceased to take a position which undermines the pedagogical continuity of the pupils taught in Danish at the Culham School.

64. The Ombudsman notes the complainants' statement that considerable uncertainty continues to affect their children because the Board of Governors intends to carry out an annual review of the need for a Danish teacher's post at the Culham School. The Ombudsman points out that any such decision of the Board of Governors would not be a decision taken by the European Commission, but rather a decision of the Board of Governors. He notes that his mandate covers allegations of maladministration by EU institutions, bodies, offices and agencies. The Board of Governors is not an EU institution, body, office or agency. He thus has no competence to review a decision of the Board of Governors. In contrast, the present inquiry falls within his competence because it relates to an allegation that the Commission wrongfully pressured the European School in Culham, by allegedly threatening to remove funding, to discontinue tuition in Danish.

65. On the basis of the above, the Ombudsman considers that no further inquiries are justified into the present complaint.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

No further inquiries are justified.

The complainants and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 12 December 2012

---

[1] The Joint European Torus (JET) investigates the potential of fusion power as a safe, clean, and virtually limitless energy source. As a joint venture, JET is collectively used by more than 40 laboratories of EURATOM Associations.

[2] ITER has the aim of demonstrating the scientific and technical feasibility of fusion as an energy source. It will be 30 times more powerful than the JET. The ITER international consortium consists of the People's Republic of China, the European Union, Japan, India, the Republic of Korea, the Russian Federation and the United States.

[3] SWALS stands for Students Without A Linguistic Section.

[4] "In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration."

[5] Most of the arguments and background information were provided by the complainant in an earlier complaint to the Ombudsman (540/2011/TN), in which the Ombudsman did not find grounds to open an inquiry. The complainants clarified their allegation and claim in the present complaint (1088/2011/TN) and, on the basis of those clarifications, the Ombudsman considered there were grounds to open an inquiry.

[6] The Ombudsman notes that the terms 'Gaignage document', 'Gaignage criteria' appear to derive from the name of Mr Gaignage, who was the first president of the working group that drafted 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.

[7] The Ombudsman notes that this can be English, French or German.