European School v Hermans-Jacobs and Heuvelmans-Van Iersel

JurisdictionBélgica
CourtCourt of Arbitration (Belgium)
Belgium, Court of Arbitration.

(Melchior, President; Blanckaert, Boel, Martens, de Wasseige, de Baets, Judges)

European School
and
Hermans-Jacobs and Heuvelmans-Van Iersel

International organizations Legal status European School in Mol (Belgium) Legal basis upon which the fees are charged for pupils whose parents are not Community officials or representatives of Member States Statute of European School, 1957, and Establishment Protocol, 1962

Treaties Conclusion and operation Constitutional limitations Whether any rule of international law giving States the right to conclude treaties contrary to their constitutions Requirement under international agreement that the parents of certain pupils at European School should pay tuition fees Whether violating right to free education under Belgian Constitution (Article 17(3)) and European Convention on Human Rights (Additional Protocol No. 1, Article 2) The law of Belgium

Summary: The facts:Proceedings were brought before the Belgian courts by the European School of Mol, which claimed tuition fees from the parents of two children at the school for the year 1989/90. The parents argued that, pursuant to Article 17(3) of the Belgian Constitution1 and Article 2 of Additional Protocol No. 1 to the European Convention on Human Rights, access to education was required to be free. The proceedings were stayed and a reference was made to the Court of Arbitration to determine whether the Laws of Assent approving the Statute of the European School adopted in 1957 by international agreement, which empowered the Governing Council to levy fees, and the Protocol of 1962 concerning the Establishment of European Schools as well as the Agreement of 1962 between the Belgian State and the Governing Council of the Schools, were compatible with Article 17(3) of the Constitution. Although the European Schools were empowered to charge fees, they were also required to grant an exemption to the children of officials of European Community institutions or national officials seconded to an EC institution or representation.

Held:The Laws in question did not violate Article 17(3) of the Constitution.

(1) No rule of international law, which was the creation of States, not even Article 27 of the Vienna Convention on the Law of Treaties, 1969, gave the power to States to conclude treaties which were contrary to their constitutions.

(2) The European Schools were established by international agreements and were administered by a supranational body acting as the organizing authority. These Schools were financed principally by contributions made by the Contracting Parties in accordance with a division of charges agreed by the Governing Council pursuant to Article 26(1) of the Statute of 1957.

(3) The fact that the Belgian State was bound, pursuant to an Agreement concluded with the Governing Council in 1962, to make available, maintain

and equip school buildings, did not mean that the School in question was an institution subsidized by the public authorities to which the guarantee of free access to education enshrined in Article 17(3) of the Constitution applied. Accordingly the charging of fees for the category of children in question did not...

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