Opinion of Advocate General Szpunar delivered on 13 July 2023.

• Jurisdiction: European Union
• Celex Number: 62022CC0431
• ECLI: ECLI:EU:C:2023:586
• Date: 13 July 2023
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 13 July 2023 (1)

Case C‑431/22

Scuola europea di Varese

v

PD, as person exercising parental responsibility over NG,

LC, as person exercising parental responsibility over NG

(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))

(Reference for a preliminary ruling – Convention defining the Statute of the European Schools – Decision not to promote a pupil to the next year of study, adopted by the Class Council – Disputed by the parents – Jurisdiction of the national courts or exclusive jurisdiction of the Complaints Board of the European Schools – Effective judicial protection)

I. Introduction

1. The representatives of the six Member States of the European Coal and Steel Community (ECSC) met on several occasions in 1954 to discuss the establishment of a European school. In the course of those meetings, it was decided that those representatives would form the Council of Administration, which would assume responsibility for that school and determine the principles of its organisation. The first European School thus opened on 12 October 1954 in Luxembourg. (2) Other European Schools were subsequently established. (3) At present there are 13 European Schools with approximately 28 750 pupils.

2. One of the features of the European Schools is that they constitute a sui generis system having its basis in both EU law and international law. That dual nature is at the origin, inter alia, of certain questions relating to the allocation of jurisdiction between the national courts and the Complaints Board of the European Schools (‘the Complaints Board’) established by the Convention defining the Statute of the European Schools (4) (‘the CSEE’). The present request for a preliminary ruling relates specifically to the interpretation of Article 27(2) of that convention.

3. The request has been made in proceedings between the Scuola europea di Varese (European School, Varese, Italy) and PD and LC, acting as legal representatives of their minor son NG (‘NG’s parents’ or ‘the parents’) concerning the jurisdiction of the Italian courts to hear an action for annulment of a decision of the Class Council not to authorise NG, who was then a secondary-school pupil at that school, to be promoted to the next year.

4. The present reference for a preliminary ruling provides the Court with the opportunity to rule, first, on the extent of the jurisdiction of the Complaints Board, which is a body of an international organisation, as regards those decisions and, second, on the obligation of that board to apply the principle of effective judicial protection when interpreting the CSEE and the implementing texts to which that convention refers.

II. Legal context

A. The Vienna Convention on the Law of Treaties

5. Article 1 of the Vienna Convention on the Law of Treaties, (5) of 23 May 1969 (‘the Vienna Convention’), entitled ‘Scope of the present Convention’, provides that that convention is to apply to treaties between States.

6. Article 3 of that convention, entitled ‘International agreements not within the scope of the present Convention’, provides:

‘The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect:

…

(b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;

…’

7. In the words of Article 31 of that convention, entitled ‘General rule of interpretation’:

‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

…

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

…’

B. The CSEE

8. The second paragraph of Article 1 of the CSEE provides that ‘the purpose of the Schools is to educate together children of the staff of the European Communities’.

9. In the words of Article 27 of the CSEE:

‘1. A Complaints Board is hereby established.

2. The Complaints 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 of 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.

The conditions and the detailed rules relative to these proceedings shall be laid down, as appropriate, by the Service Regulations for the teaching staff or by the conditions of employment for part-time teachers, or by the General Rules of the Schools.

3. The members of the Complaints Board shall be persons whose independence is beyond doubt and who are recognised as being competent in law.

Only persons on a list to be compiled by the Court of Justice of the European Communities shall be eligible for membership of the Complaints Board.

4. The [Statute] of the Complaints Board shall be adopted by the Board of Governors, acting unanimously.

The Statute of the Complaints Board shall determine the number of members of the Board, the procedure for their appointment by the Board of Governors, the duration of their term of office and the financial arrangements applicable to them. The Statute shall specify the manner in which the Board is to operate.

5. The Complaints Board shall adopt its rules of procedure, which shall contain such provisions as are necessary for applying the Statute.

The rules of procedure shall require the unanimous approval of the Board of Governors.

6. The judgments of the Complaints Board shall be binding on the parties and, should the latter fail to implement them, rendered enforceable by the relevant authorities of the Member States in accordance with their respective national laws.

7. Other disputes to which the Schools are party shall fall within national jurisdiction. In particular, national courts’ jurisdiction with regard to matters of civil and criminal liability is not affected by this Article.’

C. The General Rules of the European Schools

10. Article 61(1) of the General Rules of the European Schools, in version No 2014-03-D-14-en-11, which is applicable to the facts of the dispute in the main proceedings (‘the 2014 Rules’), provides that, in the secondary school, decisions on promotion to the year above are to be taken at the end of the school year by the relevant Class Council.

11. In the words of Article 62 of the 2014 Rules, entitled ‘Appeals against decisions on repeating a year’:

‘1. Pupils’ legal representatives shall have no right of appeal against Class Council decisions except in cases of procedural irregularity or recognition of new facts by the Secretary-General, on the basis of a file provided by the school and the pupil’s legal representatives.

Procedural irregularity means any infringement of a rule of law pertaining to the procedure to be followed for promotion to the year above, such that if it had not been committed, the Class Council’s decision would have been different.

Failure to provide assistance in the form of the pupil’s integration into the Educational Support programme shall not constitute a procedural irregularity, unless it can be demonstrated that the pupil or his/her legal representatives sought such assistance and that it was improperly refused by the school.

It shall be the schools’ responsibility to make practical organisational arrangements for examinations and the said arrangements cannot be regarded as a procedural irregularity.

New fact means any element which might not have been brought to the Class Council’s attention because it was unknown to all – teachers, parents, pupil – at the time of its deliberation and which might have influenced the purport of its decision. A fact of which the parents were aware but which was not brought to the Class Council’s attention cannot be described as a new element as meant by this provision.

The Class Council shall have sole discretionary power in respect of assessments of pupils’ abilities, the award of a mark for an examination, test or a piece of work done during the school year and assessment of the particular circumstances referred to in Article 61.B-5. Appeals may not be lodged against these assessments.

2. The deadline set for the lodging of an appeal with the Secretary-General shall be seven calendar days after the end of the school year. …

…

The Secretary-General (or, by delegation, the Deputy Secretary-General) must give a ruling on the appeal by 31 August. Articles 66 and 67 of these Rules shall be applicable. Should the appeal be deemed admissible and well founded, the Class Council shall reconsider the case.

An administrative appeal may also be lodged with the Secretary-General against the new decision …’

12. Article 66 of the 2014 Rules, entitled ‘Administrative appeals’, provides:

‘1. The decisions referred to in [Article 62] may be the subject of an administrative appeal under the conditions laid down in [that article]. …

…

5. The decision of the Secretary-General, ruling on an...