Case C‑431/22

Scuola europea di Varese

v

PD, as person exercising parental responsibility over NG
and
LC, as a person exercising parental responsibility over NG

(Request for a preliminary ruling from the Corte suprema di cassazione)

Judgment of the Court (Second Chamber) of 21 December 2023

(Reference for a preliminary ruling – Convention defining the Statute of the European Schools – Article 27(2) – General Rules of the European Schools – Articles 62, 66 and 67 – Challenge to the decision of a Class Council not to authorise a pupil to be promoted to the year above in the secondary school – Lack of jurisdiction of the national courts – Sole jurisdiction of the Complaints Board of the European Schools – Effective judicial protection)

1. Questions referred for a preliminary ruling – Jurisdiction of the Court – Definition of acts of the institutions – Convention defining the Statute of the European Schools – Included

   (Arts 267, first para., (b), and 352 TFEU; Convention defining the Statute of the European Schools)

   (see paragraphs 50, 51)

2. International agreements – Convention defining the Statute of the European Schools – Sole jurisdiction of the Complaints Board – Dispute concerning the legality of the decision of a Class Council of a European School not to authorise a pupil to be promoted to the year above in the secondary school – Included – Infringement of the principle of effective judicial protection – None

   (Convention defining the Statute of the European Schools, Art. 27(2); General Rules of the European Schools (2014), Arts 61, 62, 66 and 67)

   (see paragraphs 54, 56, 67, 68, 74, 75, 78, 82, 84, 85, 89, 97-99, operative part)

Résumé

Parents acting as legal representatives of their son, a minor, then a fifth-year secondary-school pupil at the Scuola europea di Varese (European School, Varese, Italy), were notified of a decision of the relevant Class Council not to authorise their son to be promoted to the year above. Those parents brought an action before the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy) for annulment of that decision. That court declared that it had jurisdiction to hear that action.

The European School, Varese, submitted an application to the Combined Chambers of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), ( 1 ) the referring court in the present case, for a preliminary ruling on the question of jurisdiction, seeking a declaration that the Italian courts had no jurisdiction to hear and determine the present dispute. According to that school, such a dispute falls within the sole jurisdiction of the Complaints Board of the European Schools (‘the Complaints Board’), pursuant to the combined provisions of Article 27 of the Convention defining the Statute of the European Schools (‘the CSEE’) ( 2 ) and Article 67(1) of the General Rules of the European Schools in the version applicable to the facts of the dispute in the main proceedings (‘the 2014 Rules’). ( 3 ) The parents, as well as the public prosecutor, contend, by contrast, that the Italian courts have jurisdiction to hear and determine that dispute on the grounds, inter alia, that, under Article 27(2) of the CSEE, the sole jurisdiction of the Complaints Board is limited to acts having an adverse effect adopted by the Board of Governors or by the Administrative Board of the school.

Called upon to rule on that preliminary issue relating to the jurisdiction of the Italian courts, the referring court states that it has already ruled in favour of such jurisdiction, in circumstances comparable to those of the present case. ( 4 ) Thus, it held that the sole jurisdiction of the Complaints Board covers acts having an adverse effect adopted by the Board of Governors or the Administrative Board of a European School, but not acts adopted by a Class Council of such a school. ( 5 ) The referring court observes, however, that, at the time when it ruled to that effect, the Rules then in force provided only for a limited appeal, internal to the European Schools and of a purely administrative nature, against decisions of a Class Council not to authorise a pupil to be promoted to the year above, and did not yet provide for the possibility of lodging a contentious appeal before the Complaints Board in respect of such decisions.

According to the referring court, the fact that the possibility of such a judicial appeal has in the meantime been established by the 2005 Rules and subsequently confirmed in Article 67 of the 2014 Rules might be such as to justify the Complaints Board now being recognised as having sole jurisdiction to hear and determine disputes of that type. According to that court, such a solution may find support, inter alia, in the lessons drawn from the judgment in Oberto and O’Leary, ( 6 ) in which the Court of Justice already accepted, relying on the rules of the Vienna Convention, ( 7 ) that the Complaints Board had been entitled to confer on itself sole jurisdiction to hear and determine appeals against an act of the Headteacher of a European School that adversely affected a teacher at that school. Various documents produced by the European School, Varese, and, in particular, the many decisions by which the Complaints Board has ruled in disputes relating to decisions of Class Councils not to authorise a pupil to be promoted to the year above, thus developing a consistent judicial practice since jurisdiction to determine such disputes was conferred on it by the 2005 Rules, might also be relevant in that regard.

Observing, however, that the factual differences between the judgment in Oberto and O’Leary and the present case do not permit the conclusion that an interpretation of Article 27(2) of the CSEE is so obvious as to leave no room for any reasonable doubt, the referring court made a request to the Court for a preliminary ruling.

By its judgment, the Court considers that the Complaints Board is to have sole jurisdiction in the first and final instance, once all administrative channels provided for in the 2014 Rules have been exhausted, in any dispute concerning the legality of the decision of a Class Council of a European School not to authorise a pupil to be promoted to the year above in the secondary school. ( 8 )

Findings of the Court

First of all, the Court recalls that the European Schools system is a sui generis system, which achieves, by means of an international agreement, a form of cooperation between the Member States and between those States and the European Union. The European Schools are an international organisation which, despite the functional links which it has with the European Union, remains formally distinct from it and from its Member States. Therefore, although the CSEE constitutes, as far as the European Union is concerned, an act of one of the institutions of the European Union within the meaning of point (b) of the first paragraph of Article 267 TFEU, it is also governed by international law, and more specifically, as regards its interpretation, by the international law of treaties. That law was consolidated, essentially, in the Vienna Convention, the rules of which apply to an agreement concluded between the Member States and an international organisation, such as the CSEE, in so far as those rules are an expression of general international customary law. The CSEE must therefore be interpreted in accordance with those rules and particularly in accordance with those laid down in Article 31 of the Vienna Convention, which expresses customary international law.

After recalling the wording of Article 27(2) of the CSEE and the content and scope of the relevant provisions of the 2014 Rules, ( 9 ) the Court determines whether, by analogy with its ruling in the judgment in Oberto and O’Leary with regard to decisions of the Headteacher of a European School, the rules set out in Article 31 of the Vienna Convention allow the first subparagraph of Article 27(2) of the CSEE to be interpreted as not precluding the Complaints Board from having, pursuant to the provisions of the 2014 Rules, sole jurisdiction to rule on decisions not to authorise a pupil in a European School to be promoted to the year above, even though those decisions are not adopted by the Board of Governors or the Administrative Board of that school but by a Class Council.

In that regard, as regards Article 31(1) of the Vienna Convention, the Court recalls that, according to that provision, a treaty is to be interpreted 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. Thus, the Court considers that, even though the acts adopted by the Class Councils are not expressly referred to in the first subparagraph of Article 27(2) of the CSEE, the legislative context of that provision and the objectives pursued by the CSEE support the conclusion that the extension of jurisdiction introduced in favour of the Complaints Board by means of the provisions of the 2014 Rules does not infringe that provision of the CSEE.

As regards Article 31(3)(a) and (b) of the Vienna Convention, the Court points out that it follows that, for the purpose of interpreting a treaty, there must be taken into account, together with the context, any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions and any subsequent practice in the application of that treaty which establishes the agreement of the parties regarding its interpretation.

In that context, the Court considers that the Board of Governors’ adoption of Articles 62, 66 and 67 of the 2014 Rules and, before that, of the analogous provisions contained in the 2005 Rules, and the uninterrupted application of those provisions since then by both the Secretary-General and the Complaints Board, without any challenge raised by the Contracting Parties to the CSEE in respect of the adoption or the application of those provisions, are such as to demonstrate the existence – if not of a subsequent agreement between those parties regarding the interpretation of the CSEE or the application of its provisions within the meaning of Article 31(3)(a) of the Vienna Convention – at least of a practice which establishes the agreement of the parties regarding such an interpretation within the meaning of Article 31(3)(b) of the Vienna Convention. The absence of any challenge by the parties to the CSEE regarding such uninterrupted application must be regarded as conduct of those parties reflecting their tacit agreement to that application and therefore as such a practice. Such an agreement and/or such practice are liable to override the wording of the first sentence of the first subparagraph of Article 27(2) of the CSEE. It follows that that provision must be read as not precluding decisions of the Class Councils of the European Schools not to authorise a pupil to be promoted to the year above from, in principle, being regarded as being covered by that provision.

The Court infers therefrom that, under Article 67(1) of the 2014 Rules, the Complaints Board is to have sole jurisdiction in the first and final instance, once all administrative channels provided for in Article 62(1) of those rules have been exhausted, in any dispute concerning the decision of the Class Council of a European School not to authorise a pupil to be promoted to the year above in the secondary school and that such sole jurisdiction does not infringe Article 27(2) of the CSEE.

Furthermore, the Court states that such an interpretation of the relevant provisions of the CSEE and the 2014 Rules does not undermine the right of the persons concerned to effective judicial protection.

As regards the CSEE, the general principles of EU law must both govern the interpretation of that convention and be duly taken into account and observed by the bodies established by that convention when those bodies exercise the powers arising from the rules laid down by that convention and adopt acts in accordance with the terms of that convention. As is apparent from the decisions of the Complaints Board produced by the European School, Varese, the provisions of Article 62(1) of the 2014 Rules, although dedicated to the administrative appeal that may be lodged before the Secretary-General, consequently also determine the extent of that board’s jurisdiction in the event of an appeal brought by the pupil’s legal representatives against a decision of the Secretary-General rejecting the administrative appeal initially brought before him or her.

Even a judicial appeal thus delimited does not infringe the principle of effective judicial protection, provided that ‘infringement of a rule of law pertaining to the procedure to be followed for promotion to the year above’, within the meaning of Article 62(1) of the 2014 Rules, is understood, in the broad sense, to mean infringement of any rule, whether strictly procedural or substantive, which must necessarily govern the deliberations of the Class Councils. Such rules include the general principles of EU law the observance of which must, consequently, be ensured by the Complaints Board when an appeal is brought before it relating to a decision of the Class Council not to authorise a pupil to be promoted to the year above.

As regards the extent of the review carried out by the Complaints Board in relation to the statement of reasons for such a decision of the Class Council, the principle of effective judicial protection thus requires, inter alia, that, without prejudice to the broad discretion inherent in the deliberative function assigned to the Class Council, such a review must cover, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment.

( 1 ) On the basis of Article 41 of the Italian Code of Civil Procedure, according to which: ‘While the case has not been determined as to its substance at first instance, any party may request the Combined Chambers of the [Corte suprema di cassazione (Supreme Court of Cassation, Italy)] to settle questions of jurisdiction …’.

( 2 ) Convention defining the Statute of the European Schools, concluded in Luxembourg on 21 June 1994 between the Member States and the European Communities (OJ 1994 L 212, p. 3). Under the first subparagraph of Article 27(2) of the CSEE, ‘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 [or] the Administrative Board of a school in the exercise of their powers as specified by this Convention’. The second subparagraph of Article 27(2) of the CSEE states that the conditions and the detailed rules relative to these proceedings are to 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 European Schools.

( 3 ) General Rules of the European Schools, in version No 2014-03-D-14-en-11. Under Article 67(1) of the 2014 Rules, ‘explicit or implicit administrative decisions taken on the appeals referred to in the previous article may be the subject of a contentious appeal by pupils’ legal representatives, directly affected by the disputed decision, before the Complaints Board provided for in Article 27 of the [CSEE]’.

( 4 ) Corte suprema di cassazione (Supreme Court of Cassation, Italy), judgment of 15 March 1999, ECLI:IT:CASS:1999:138CIV.

( 5 ) Under the combined provisions of the second paragraph of Article 6 and Article 27(1), (2) and (7) of the CSEE.

( 6 ) Judgment of 11 March 2015, Oberto and O’Leary (C‑464/13 and C‑465/13, EU:C:2015:163), ‘the judgment in Oberto and O’Leary’.

( 7 ) Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331).

( 8 ) Pursuant to the combined provisions of Article 27(2) of the CSEE and Articles 61, 62, 66 and 67 of the 2014 Rules.

( 9 ) Article 61(A)(1), Article 62(1) and (2), Article 66(1) and (5), and Article 67(1) of the 2014 Rules.