CELEX: 62009CJ0132
Failure of a Member State to fulfil obligations
Jurisdiction of the Court
Statute of the European Schools
Establishment Agreement of 1962
Conventions of 1957 and 1994
Arbitration clause
Article 10 EC
Financing of the European Schools
Costs of furniture and teaching equipment

By its application, the Commission of the European Communities asks the Court to declare that, by refusing to finance the
costs of furniture and teaching equipment for the European Schools, the Kingdom of Belgium has failed to fulfil its obligations
under the Establishment Agreement concluded on 12 October 1962 between the Board of Governors of the European School and the
Government of the Kingdom of Belgium (‘the Establishment Agreement’), read in conjunction with Article 10 EC.

Legal context

Statute of the European Schools
When they were first set up, the European Schools were governed by two instruments: the Statute of the European School, signed
at Luxembourg on 12 April 1957 (United Nations Treaty Series, Volume 443, p. 129, ‘the 1957 Convention’), and the Protocol
on the setting-up of European Schools with reference to the Statute of the European School, signed at Luxembourg on 13 April
1962 (United Nations Treaty Series, Volume 752, p. 267, ‘the 1962 Protocol’). Those two instruments were concluded by the
six founding Member States of the European Communities.
The Board of Governors of the European School (‘the Board of Governors’), established under Article 7 of the 1957 Convention,
is composed, under Article 8 thereof, of the competent Minister or Ministers of each of the Contracting Parties. Under Article
9 of that convention, the Board of Governors is to be responsible for the application of the convention and, for that purpose,
is to have the necessary powers in educational, financial and administrative matters. It is to adopt the General Regulations
of the School by common agreement. Article 28 of the convention provides that the Board of Governors may negotiate with the
government of the country in which the headquarters of the school are situated any further agreements for the purpose of ensuring
that the school operates in the best possible material and moral conditions.
The 1957 Convention and the 1962 Protocol were cancelled and replaced by the Convention defining the Statute of the European
Schools, concluded in Luxembourg on 21 June 1994 (OJ 1994 L 212, p. 3, ‘the 1994 Convention’), as laid down in Article 34
of that convention, which is currently in force. The 1994 Convention was concluded by the Member States and the European Communities,
the latter empowered to do so under Council Decision 94/557/EC, Euratom of 17 June 1994 authorising the European Community
and the European Atomic Energy Community to sign and conclude the Convention defining the Statute of the European Schools
(OJ 1994 L 212, p. 1).
In accordance with Article 34, fourth paragraph, of the 1994 Convention, references in the acts prior to the adoption of the
convention which concern the schools are to be understood as relating to the corresponding articles thereof.
The schools listed in Annex I to the 1994 Convention, which include the Brussels I, Brussels II and Brussels III European
Schools as well as the European School in Mol (Belgium), fall within the scope of that convention.
Under Article 2(3) of the 1994 Convention, before a new school may be opened in the territory of a Member State, an agreement
must be concluded between the Board of Governors and the host Member State concerning the free provision and maintenance of
suitable premises for the new school.
The second paragraph of Article 6 of the 1994 Convention provides that, as far as their rights and obligations are concerned,
the schools are to be treated in each Member State, subject to the specific provisions of the convention, as educational establishments
governed by public law.
Pursuant to Article 10, first paragraph, of the 1994 Convention, the Board of Governors – which is composed, in particular,
of a representative at ministerial level of each of the Member States and of a member of the Commission – is to supervise
the implementation of the convention and, for this purpose, is to have the necessary decision-making powers in educational,
budgetary and administrative matters and those required for the negotiation of the agreements referred to in Articles 28 to
30 of the convention.
Article 25 of the 1994 Convention provides that the budget of the schools is to be financed, inter alia, by contributions
from the Member States through the continuing payment of the remuneration for seconded or assigned teaching staff and, where
appropriate, a financial contribution, and by the contribution from the European Communities, which is intended to cover the
difference between the total amount of expenditure by the schools and the total of other revenue.
Under Article 26 of the 1994 Convention, the Court of Justice is to have sole jurisdiction in disputes between Contracting
Parties relating to the interpretation and application of the convention that have not been resolved by the Board of Governors.
Under Article 30 of the convention, the Board of Governors may negotiate with the government of a country in which a school
is located any additional agreement required to ensure that the school can operate under the best possible conditions.
Article 33, first and second paragraphs, of the 1994 Convention states, inter alia, that the convention is to be ratified
by the Member States as Contracting Parties in accordance with their respective constitutional requirements and that it is
to enter into force on the first day of the month following the deposit of all instruments of ratification by the Member States
and of the acts notifying conclusion by the European Communities.
It is common ground that the 1994 Convention entered into force on 1 October 2002.

Establishment Agreement
The Establishment Agreement, approved by the Belgian Law of 8 November 1975 (
Moniteur belge
, 7 February 1976, p. 1415) was concluded for the purpose of ensuring that the European Schools in Brussels and Mol would
operate in the best possible material and moral conditions, as provided for by Article 28 of the 1957 Convention.
In Chapter I of the Establishment Agreement, which is entitled ‘School buildings and equipment’, Article 1 reads as follows:
‘The Government of the Kingdom of Belgium undertakes to provide the Schools with the buildings that are necessary for their
activity and meet the objectives set for themselves by the governments that are signatories to the Protocol on the setting-up
of European Schools.
It shall maintain those buildings and insure them in accordance with the rules governing property owned by the Belgian State.
It undertakes to provide those Schools with furniture and teaching equipment in accordance with the criteria applied to its
own establishments.’

Pre-litigation procedure
In a letter of formal notice dated 17 October 2007, the Commission alleged that the Kingdom of Belgium had failed to observe
the provisions of the Establishment Agreement and of Article 10 EC, first, by refusing since 1995 to finance the initial fitting-out
of the European Schools located in its territory with furniture and teaching equipment, and second, by refusing since 1989
to pay an annual operating and equipment grant intended to cover the running costs of the European Schools established in
its territory.
As it was not satisfied with the reply sent by the Kingdom of Belgium to that letter of formal notice, on 26 June 2008 the
Commission issued a reasoned opinion inviting that Member State to take the necessary measures to comply with that opinion
within two months of its receipt.
Since the Kingdom of Belgium failed to take the required measures within the prescribed period, the Commission brought the
present action.

On the request that the oral procedure be reopened
In a letter dated 23 June 2010, the Commission requested that the oral procedure be reopened.
The Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order reopening
of the oral procedure under Article 61 of its Rules of Procedure if it considers that it lacks sufficient information, or
that the case must be dealt with on the basis of an argument that has not been debated between the parties (Case C-28/08 P
Commission
v
Bavarian Lager
[2010] ECR I-0000, paragraph 36 and case-law cited).
In its application, the Commission claims that the Opinion of the Advocate General is based on arguments that were not debated
before the Court. First, the Commission maintains that it had no opportunity, during the procedure, to take a position regarding
the ground of lack of jurisdiction raised in the Opinion of the Advocate General, according to which the arbitration clause
set out in Article 26 of the 1994 Convention excludes the application of Article 226 EC. Second, it emphasises that the Opinion
of the Advocate General proposes a restrictive interpretation of Article 10 EC, regarding which it has not had the opportunity
to express its views during the procedure.
The Court considers that it has all the information necessary to deliberate on the dispute before it and that the dispute
should not be examined in the light of arguments that were not debated before the Court.
Accordingly, it is not appropriate to order reopening of the oral procedure.

Jurisdiction of the Court

Arguments of the parties
The Kingdom of Belgium disputes the jurisdiction of the Court to hear and determine disputes relating to the Establishment
Agreement. It claims that infringement proceedings under Article 226 EC cannot be brought unless the Commission establishes
the infringement of a provision of Community law or of an agreement to which the European Community is a party, or the existence
of a clause conferring jurisdiction.
In this case, the Kingdom of Belgium submits that no Community provision has been infringed as there is no infringement of
the provisions of the EC Treaty or of its annexes, or of secondary Community law. That Member State maintains that the Establishment
Agreement is not an agreement to which the Community is a party and that there is no clause which confers jurisdiction.
The Kingdom of Belgium claims that the Establishment Agreement is distinct from the 1994 Convention and that only the latter
provides a clause conferring jurisdiction, in Article 26 thereof. In its view, the Establishment Agreement cannot be regarded
as an act deriving from the 1994 Convention. The fact that the European Coal and Steel Community (ECSC) was a voting member
of the Board of Governors, which has an international legal personality that is separate from that of the ECSC, does not mean
that the latter was a Contracting Party to the Establishment Agreement concluded between the Board of Governors and the Belgian
Government.
Furthermore, if, as the Commission claims, the ECSC was a Contracting Party to the Establishment Agreement, as a voting member
of the Board of Governors, the same would apply to the Kingdom of Belgium, given that it is a member of the Board. In those
circumstances, that Member State would itself be a Contracting Party which, as a general principle of law, is impossible.
Moreover, that Member State claims that the act under which it concluded such agreement draws its binding force solely from
its own sovereignty.
The Commission rejects this interpretation on two grounds.
First, it points out that the application does not refer to the Establishment Agreement alone, but also to Article 10 EC,
read in conjunction with that agreement.
Second, the Commission submits that the Establishment Agreement is undoubtedly part of Community law, independently of Article
10 EC, since it must be regarded as an act ‘deriving from’ the 1994 Convention, which is itself part of Community law.
The Commission states that in accordance with settled case-law, as far as provisions coming within Community competence are
concerned, agreements concluded by the Community and its Member States with non-member countries have the same status in the
Community legal order as purely Community agreements, and that the 1994 Convention was concluded between the Communities and
their Member States.
The Commission observes that the Establishment Agreement was originally an act deriving from the 1957 Convention and that,
as early as 1962, the High Authority of the ECSC was a voting member of the Board of Governors. The Commission therefore considers
that the High Authority was a Contracting Party to the Establishment Agreement. The Commission explains that it took the place
of the ECSC High Authority on the signature of the Merger Treaty of 8 April 1965 and that the purpose of the 1994 Convention
was both to consolidate the acquis of the 1957 Convention and to strengthen the role of the Communities as Contracting Parties.
The Commission therefore concludes that, in the light of the fact that the Establishment Agreement was adopted on the basis
of Article 28 of the 1957 Convention and that provision is likewise made for establishment agreements in the 1994 Convention,
the Establishment Agreement forms part of the rights and obligations to which the Communities subscribed in 1994.

Findings of the Court
It should be emphasised that an action must be considered having regard only to the pleadings contained in the original application
(Case C-256/98
Commission
v
France
[2000] ECR I-2487, paragraph 31, and Case C-508/03
Commission
v
United Kingdom
[2006] ECR I‑3969, paragraph 61).
It should also be noted that, under Articles 21(1) of the Statute of the Court of Justice of the European Union and 38(1)(c)
of the Rules of Procedure thereof, in any application made under Article 226 EC, the Commission must indicate the specific
complaints on which the Court is called upon to rule (Cases C-52/90
Commission
v
Denmark
[1992] ECR I-2187, paragraph 17, and C-255/04
Commission
v
France
[2006], ECR I‑5251, paragraph 24).
These heads of claim must be set out unambiguously, so that the Court does not rule
ultra petita
or indeed fail to rule on a complaint (Case C-296/01
Commission
v
France
[2003] ECR I-13909, paragraph 121, and Case C-255/04
Commission
v
France
, cited above, paragraph 24).
In this case, the Court finds that the only complaint referred to in the claims at the end of the application initiating proceedings
relates to the alleged infringement of the obligations of the Kingdom of Belgium under the Establishment Agreement, read in
conjunction with Article 10 EC.
Admittedly, Article 10 EC is referred to twice in the grounds of the application. The Commission remarks that the conduct
of the Belgian authorities interferes with the system adopted for financing the Community and apportioning financial burdens
between the Member States, thereby infringing that article, pointing out that the consequences of this conduct are detrimental.
The Commission adds that the obligations of the Kingdom of Belgium under the Establishment Agreement must be interpreted in
the light of the principle of good faith, which forms an integral part of Article 10 EC and of general international law.
However, it is apparent from the application initiating the proceedings that the alleged infringement of Article 10 EC by
the Kingdom of Belgium is only ancillary to the alleged infringement regarding the Establishment Agreement. Indeed, according
to the Commission, it is the Kingdom of Belgium's failure to observe its obligations under the Establishment Agreement that
also results in a breach of Article 10 EC.
Furthermore, in its reply, the Commission expressly states that it has never relied on Article 10 EC per se in this case,
that is, independently of the Establishment Agreement.
In these circumstances, the fact that the Court may lack jurisdiction to determine, on the basis of Article 226 EC, the infringement
by the Kingdom of Belgium of its obligations under the Establishment Agreement would necessarily result in the inadmissibility
of the application in its entirety.
In relation to international conventions in general, it should be noted that, according to the case-law of the Court, if the
Community is not a Contracting Party to a convention, in principle the Court is not competent to interpret the provisions
of that convention in the context of preliminary proceedings (Case 130/73
Vandeweghe and Others
[1973] ECR 1329, paragraph 2; Order C‑162/98
Hartmann
[1998] ECR I-7083, paragraph 9; Case C-301/08
Bogiatzi
[2009] ECR I-10185, paragraph 24; and Case C-533/08
TNT Express Nederland
[2010] ECR I-0000, paragraph 61).
Specifically in relation to the 1957 Convention, it should be borne in mind that the Court has already held that it lacks
jurisdiction to give a ruling on its interpretation, and on the obligations arising under it for the Member States since,
despite the fact that that convention was linked to the Community and the functioning of its institutions, it was an international
agreement concluded by the Member States which did not form an integral part of Community law (Case 44/84
Hurd
[1986] ECR 29, paragraphs 20 to 22).
This assessment, as the Advocate General has pointed out in point 46 of his Opinion, does not have to be restricted to the
procedural context in
Hurd
, where the Court was asked to give a preliminary ruling, but likewise applies in the context of the proceedings provided
for in Article 226 EC, the subject-matter of which can only be a failure by a Member State to fulfil one of its obligations
under the EC Treaty.
It is apparent from the preamble to the Establishment Agreement that it was based on Article 28 of the 1957 Convention, which
affords the Board of Governors the power to negotiate with the government of the Member State in which a school is established,
any further agreements for the purpose of ensuring that the European Schools operate in the best possible material and moral
conditions. The rules in that agreement therefore have to be consistent with those laid down in the 1957 Convention.
The view of the Commission, according to which the ECSC, and then the Community, must be considered to be a Contracting Party
to the Establishment Agreement, given that the High Authority of the ECSC was a voting member of the Governing Board and that
the Commission took the place of it, does not invalidate the finding set out in the previous paragraph and therefore this
submission must be rejected.
Indeed, there is nothing to suggest that the possibility of granting the ECSC High Authority the right to participate in the
Governing Body, as a voting member thereof, set out by the Contracting Parties in the 1957 Convention and subsequently exercised
by the High Authority, would imply that the parties signing the Establishment Agreement intended to grant the ECSC the status
of Contracting Party to that agreement. Furthermore, that is the submission of the Kingdom of Belgium, one of the Contracting
Parties to the Establishment Agreement.
Accordingly, it cannot be maintained that the Community is involved as a Contracting Party in the Establishment Agreement
and that this agreement would, therefore, establish rights and obligations for the Community.
With regard to the other submission of the Commission, that the Establishment Agreement forms an integral part of the rights
and obligations to which the Communities signed up in 1994, this cannot succeed either. This submission is based on the fact
that the 1994 Convention, which was concluded and approved by the Communities, has the purpose of consolidating the acquis
of the 1957 Convention and the fact that the 1994 Convention provides for establishment agreements.
In that regard, it should be observed that neither the alleged consolidation of the acquis of the 1957 Convention by the 1994
Convention, which, furthermore, only entered into force on 1 October 2002, nor the reference made by the latter to the establishment
agreements, can retroactively modify the legal nature of the Establishment Agreement, which is an international agreement
concluded between the Governing Body and the government of a single Member State.
With regard to the applicability or otherwise of the arbitration clause appearing in Article 26 of the 1994 Convention, it
should be noted that infringement proceedings, within the meaning of the EC Treaty and of the case-law of the Court, can only
be brought on the basis of Article 226 EC, which was indeed the case in this matter.
In those circumstances, it must be held that the Court lacks jurisdiction to give a ruling on the Commission’s action, brought
on the basis of Article 226 EC, on the ground that the Kingdom of Belgium has failed to fulfil its obligations under the Establishment
Agreement, read in conjunction with Article 10 EC.

Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the Kingdom of Belgium applied for costs and the Commission has been
unsuccessful, the Commission must be ordered to pay the costs.
On those grounds, the Court (Third Chamber) hereby:
1.
Declares that the Court of Justice of the European Union does not have jurisdiction to rule on the action of the European
Commission, brought on the basis of Article 226 EC, on the ground that the Kingdom of Belgium has failed to fulfil its obligations
under the Establishment Agreement concluded on 12 October 1962 between the Board of Governors of the European School and the
Government of the Kingdom of Belgium, read in conjunction with Article 10 EC;
2.
Orders the European Commission to pay the costs.
[Signatures]
*
Language of the case: French.