Opinion of the Advocate General — ECLI:EU:C:2023:586
Date: 2023-07-13
Language of the case: Italian
Subject matter: General provisions
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-431/22 – 1 
Case C-431/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
28 June 2022 
Referring court:  
Corte suprema di cassazione (Italy) 
Date of the decision to refer:  
6 June 2022 
Applicant:  
Scuola europea di Varese 
Defendants:  
PD and LC, as persons exercising parental responsibility over the 
minor NG 
  
Subject matter of the main proceedings 
Application seeking a preliminary ruling from the Corte suprema di cassazione 
(Supreme Court of Cassation) on the question of jurisdiction in relation to 
proceedings pending before an administrative court concerning an appeal against 
the decision on repeating a year which was adopted by the Class Council at the 
European School at Varese. 
Subject matter and legal basis of the request for a preliminary ruling to the 
Court of Justice 
Request for a preliminary ruling under the third paragraph of Article 267 TFEU 
concerning the interpretation of the first sentence of the first subparagraph of 
Article 27(2) of the Convention defining the Statute of the European Schools of 
21 June 1994. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-431/22 
 
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Question referred for a preliminary ruling  
Is the first sentence of the first subparagraph of Article 27(2) of the Convention 
defining the Statute of the European Schools, done in Luxembourg on 21 June 
1994, to be interpreted as meaning that the Complaints Board referred to therein is 
to have sole jurisdiction in the first and final instance, once all administrative 
channels provided for in the General Rules have been exhausted, in any dispute 
concerning a decision on repeating a year adopted in relation to a secondary-
school pupil by the Class Council? 
Provisions of international and European Union law relied on 
Vienna Convention on the Law of Treaties of 23 May 1969 (ratified by Italy by 
Law No 112 of 12 February 1974) (‘the Vienna Convention’), in particular 
Articles 3 (scope) and 31 (interpretation in good faith). 
Convention defining the Statute of the European Schools, signed in Luxembourg 
on 21 June 1994 by the Member States of the European Communities and the 
European Communities themselves, which entered into force on 1 October 1992 
(ratified by Italy by Law No 151 of 6 March 1996) (‘the Convention’), third and 
fourth recitals, Articles 1, 5, 6, 7, 10, 11, 12, 14, 26, 27, and 31. 
According to the third recital of the Convention, the European School system is a 
‘sui generis’ system, which constitutes, on the basis of an international agreement, 
a form of cooperation between the Member States and between those States and 
the European Union, while acknowledging the content of teaching, the educational 
systems, and the cultural and linguistic diversity of the Member States. According 
to the fourth recital of that convention, the decision-making procedure within the 
schools should be modified, experience in the operation of the schools should be 
taken into account, adequate legal protection against acts of the Board of 
Governors or the Administrative Boards should be provided to the teaching staff 
as well as other persons covered by the Convention, and to that end a Complaints 
Board should be created, with strictly limited jurisdiction, without prejudice to 
national courts’ jurisdiction in relation to civil and criminal liability. 
The purpose of the European Schools is to educate together children of the staff of 
the European Union (Article 1 of the Convention). The organs of those schools are 
to be: (1) the Board of Governors; (2) the Secretary-General; (3) the Boards of 
Inspectors; and (4) the Complaints Board. Each School is to be administered by 
the Administrative Board and managed by the Headteacher (Article 7). The Board 
of Governors is to lay down the General Rules of the Schools (Article 10), 
determine which studies are to be undertaken and how they are to be organised 
(Article 11), and lay down the Service Regulations for the Secretary-General and 
appoint the Secretary-General and Deputy Secretary-General (Article 12). The 
Secretary-General is to represent the Board of Governors. He or she is also to 
represent the Schools in legal proceedings and be responsible to the Board of 
Governors (Article 14). 
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Article 26 provides that the Court of Justice is to have sole jurisdiction in disputes 
between Contracting Parties relating to the interpretation and application of the 
Convention which have not been resolved by the Board of Governors. 
Article 27 of the Convention establishes a Complaints Board, which is to ‘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. (…) 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.’ 
General Rules of the European Schools: 
General Rules of September 1996 (‘the 1996 Rules’), Article 68 
General Rules of February 2005 (‘the 2005 Rules’), Articles 62, 66, and 67 
General Rules of February 2014 (‘the 2014 Rules’), Articles 61, 62, 66 and 67 
The general rules of the European Schools have been amended over time. In the 
1996 version, Article 68 stipulated that decisions on promotion to the year above 
were to be taken at the end of the school year by the Class Councils on the basis of 
the pupils’ results and that parents or guardians could only appeal against such 
decisions on the grounds of procedural irregularity or new facts. If these 
assumptions emerged from an investigation by the Representative of the Board of 
Governors, the Committee was required to review the case. The deadline was set 
at ten days after the end of the school year. 
The 2005 Rules provided, in Article 62, that decisions on promotion to the year 
above were to be taken at the end of the school year by the competent Class 
Councils and that parents could, within seven days after the end of the school 
year, lodge an appeal against such decisions only on the grounds of a procedural 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-431/22 
 
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irregularity or new facts recognised by the Secretary-General following an 
investigation. The Secretary-General was to decide on the appeal by 31 August at 
the latest. If the appeal was admissible, the Class Council was required to 
reconsider the case. Article 66 provided that those decisions could be the subject 
of administrative appeals and, under Article 67, the parents of the pupils, or a 
pupil of full age, could bring appeals against explicit or implicit administrative 
decisions, referred to in the previous article, before the Complaints Board under 
Article 27 of the Convention. Those appeals were to be examined and judged 
subject to the conditions laid down by the Rules of Procedure established by the 
Complaints Board. 
Articles 61 and 62 of the 2014 Rules, applicable to the present case, substantially 
reproduce the content of Article 62 of the 2005 Rules, in particular as regards how 
to lodge an appeal against decisions on repeating a year taken by Class Councils. 
Article 66 provides that an administrative appeal may be lodged against the 
decisions referred to above under the conditions laid down in Article 62 and the 
decision of the Secretary-General ruling on an administrative appeal is to be 
notified to the appellants. Article 67 governs the appeals available to a pupil’s 
legal representatives and is essentially identical to Article 67 of the 2005 Rules. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By an application of 20 July 2020, the spouses P.D. and L.C. challenged before 
the Tribunale amministrativo regionale per la Lombardia (Regional 
Administrative Court, Lombardy) the decision on repeating a year taken in 
relation to the following school year 2020/2021, which had been adopted by the 
Class Council in relation to their son, a fifth-year secondary-school student at the 
European School at Varese (‘the School’). 
2 Taking the view that jurisdiction lay with the Italian courts, P.D. and L.C. 
challenged the decision of the Class Council before the Regional Administrative 
Court, Lombardy, submitting that it was unlawful, and they requested the 
annulment thereof and the adoption, as a provisional step, of measures most likely 
to prevent the student from losing the school year. 
3 The School contended that the application for interim measures should be 
declared inadmissible or dismissed and, as to the substance, that the Regional 
Administrative Court, Lombardy, should be declared to lack jurisdiction.  
4 By order of 9 September 2020, the Regional Administrative Court, Lombardy, 
finding that it had jurisdiction, granted the application for interim measures and 
ruled that the student was to be admitted, with reservations, to the next class. 
5 By an appeal of 13 October 2021, the School submitted to the Sezioni Unite 
(Combined Chambers) of the Supreme Court of Cassation an application for a 
preliminary ruling on the question of jurisdiction, and claimed that the Italian 
courts should be declared to lack jurisdiction, and, in the alternative, the School 
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submitted that a question on interpretation should be referred to the Court of 
Justice of the European Union (‘the Court’) pursuant to Article 26 of the 
Convention and Article 267 TFEU. 
The essential arguments of the parties in the main proceedings 
6 The School submits that the Italian courts completely lack jurisdiction in so far as 
P.D. and L.C. should have brought their appeal before the Complaints Board 
established by Article 27 of the Convention as the only body having jurisdiction in 
relation to unfavourable decisions adopted, in respect of students enrolled at the 
School, by the Secretary-General of the European Schools, to whom the request 
for annulment of the decision to repeat a year, taken by the Class Council, was 
submitted. 
7 P.D. and L.C., and the public prosecutor who lodged written submissions before 
the referring court, agree that the Italian courts have jurisdiction, arguing that the 
act adversely affecting the student was adopted by the Class Council, whereas the 
Complaints Board has jurisdiction only in respect of acts having an adverse effect 
adopted by the Board of Governors or the Administrative Board. In support of that 
position, reference is made to judgment No 138 of the Supreme Court of 
Cassation, Combined Chambers, of 15 March 1999 
(ECLI:IT:CASS:1999:138CIV) concerning a similar dispute. It is also argued that 
Articles 62(1), 66(1) and 67(1) of the General Rules only provide for the 
possibility of challenging decisions on repeating a year first in administrative 
proceedings and then in appeal proceedings before the Complaints Board, but do 
not provide for an extension of the exclusive competence of the Board also in this 
regard. Such an extension would constitute a derogation from the Convention, 
which is not permitted as it is a ‘primary’ act which only the High Contracting 
Parties may carry out. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 The referring court refers first of all to the provisions of law relevant to the 
dispute (in particular, Article 31 of the Vienna Convention). 
9 The referring court then explains the system of the European schools, recalling 
that it was established by virtue of two international treaties signed in 
Luxembourg on 12 April 1957 and 13 April 1960, which were subsequently 
repealed and replaced by the Convention, and explaining in particular the content 
of the rules cited above in the section entitled ‘Provisions of international and 
European Union law relied on’. 
10 The European schools are ‘an international organisation which, despite the 
functional links which it has with the Union, remains formally distinct from it and 
from those Member States’ (judgment of 14 June 2011, Miles and Others, 
C-196/09, EU:C:2011:388, paragraphs 39 and 42). 
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11 In that context, the Court has jurisdiction to rule on the question referred for a 
preliminary ruling on the interpretation of the Convention, which constitutes an 
international agreement whose provisions ‘form an integral part of the EU legal 
system’ (judgment of the Court of 11 March 2015, Oberto and O’Leary, C-464/13 
and C-465/13, ECLI: EU:C: 2015:163, paragraphs 29 to 31). 
12 The question referred for a preliminary ruling is relevant since the Supreme Court 
of Cassation, Combined Chambers, is required to rule definitively, without its 
ruling being subject to judicial review, on whether, in the present case, the Italian 
courts have jurisdiction or the Complaints Board has exclusive jurisdiction, as 
provided for in the 2014 Rules. 
13 The referring court, as the court of final instance, states that it cannot be 
considered exempt from the obligation to make a reference for a preliminary 
ruling under Article 267 TFEU by virtue of the conditions set out in the settled 
case-law of the Court (judgments of 6 October 1982, Cilfit and Others, 283/81, 
EU:C:1982:335, and of 6 October 2021, Consorzio Italian Management and 
Catania Multiservizi, C-561/19, ECLI:EU:C:2021:799). 
14 In that regard, it recalls the abovementioned judgment of the Court of 11 March 
2015, C-464/13 and C-465/13, in which the Court interpreted the first sentence of 
the first subparagraph of Article 27(2) of the Convention as meaning that an act 
carried out by the headteacher of a European school in the exercise of his or her 
powers can come within the scope of that provision. Points 1.3, 3.2 and 3.4 of the 
Conditions of Employment for Part-time Teachers must be interpreted as meaning 
that a dispute concerning the legality of an agreement on limiting the duration of 
the employment relationship included in the employment contract concluded 
between a part-time teacher and that headteacher comes within the exclusive 
jurisdiction of the Complaints Board of the European Schools (paragraph 76). 
However, although useful arguments are drawn from that judgment for the 
resolution of the present dispute, it concerns a different case and the interpretation 
contained therein of Article 27(2) of the Convention cannot be applied by analogy 
to the present case. 
15 The referring court also refers to its own judgment 138/99, cited above, in which it 
held that the Italian courts had jurisdiction on the basis of an interpretation of 
Articles 6(2) and 27(1), (2) and (7) of the Convention, in the case of a challenge 
before the administrative court against a decision on repeating a year adopted by 
the Class Council, holding that that decision did not fall within the exclusive 
jurisdiction of the Complaints Board under Article 27 of the Convention as it was 
not an act adopted by the Board of Governors or the School’s Administrative 
Board, but that Italian jurisdiction should apply since it concerned ‘another 
dispute’ which is thus reserved to ‘national jurisdiction’ under paragraph 7 of 
Article 27. 
16 It should be observed, however, that the legal framework in that case differed 
from that of the main proceedings in which the rules applicable ratione temporis 
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are the 2014 Rules. The 1996 Rules, which were applicable at the time, provided 
only for the possibility of bringing, in limited cases, administrative proceedings 
against the Class Council’s decisions on repeating a year, but did not provide for 
the possibility of bringing an appeal before the Complaints Board. 
17 That said, the abovementioned judgment of the Court of 11 March 2015, C-464/13 
and C-465/13, is useful for the purposes of interpreting the first sentence of the 
first subparagraph of Article 27(2) of the Convention. In that judgment it was held 
that, although the act adversely affecting a part-time teacher (a contract limiting 
the duration of the employment relationship) was not adopted by the Board of 
Governors or the Administrative Boards but by the headteacher of the school (as 
provided for in points 1 and 3 of the Conditions of Employment for Part-time 
Teachers, which refers to Article 80 of the Regulations for Members of the 
Seconded Staff, which reserves to the Complaints Board exclusive jurisdiction to 
rule on ‘any dispute between the management organs of the School and members 
of staff regarding the legality of an act adversely affecting them’), an 
interpretation of the abovementioned provisions in accordance with the 
international law of treaties leads to the conclusion that the Complaints Board has 
exclusive jurisdiction to rule on the act concerned having adverse effect, inasmuch 
as the judicial practice [of the Complaints Board] concerning the ‘dispute between 
the management organs of the European schools and members of staff’ has 
developed to that effect. 
18 That conclusion was reached in that judgment, it being pointed out that the 
‘wording’ of Article 80 ‘differs’ from that of the first sentence of the first 
subparagraph of Article 27(2) of the Convention. 
19 It is appropriate to categorise the aforementioned judicial practice ‘as establishing 
the agreement of the parties on the matter of the interpretation of the first sentence 
of the first subparagraph of Article 27(2) of the Convention … That same practice 
is therefore liable to override the wording of Article 27(2) of the Convention, 
which must therefore be read as not precluding the acts of the management organs 
of the European schools from, in principle, being regarded as covered by 
Article 27(2) of the Convention defining the Statute of the European schools.’ 
20 It follows from the judgment of the Court of 11 March 2015, C-464/13 and 
C-465/13, that such an interpretation does not affect the right to effective legal 
protection, as the Complaints Board satisfies all the requirements which must be 
met in order for a body to be recognised as ‘a court or tribunal’ for the purposes of 
Article 267 TFEU (‘in particular that it is established by law, is permanent, its 
jurisdiction is compulsory, its procedure is inter partes, it applies rules of law and 
it is independent, with the exception of the requirement that it be a court or 
tribunal of one of the Member States’; paragraph 72, which refers to the judgment 
in Miles and Others) and, under Article 47 of the Charter of Fundamental Rights 
of the European Union, ‘the principle of effective judicial protection does not 
afford a right of access to a second level of jurisdiction but only to a court or 
tribunal’ (paragraph 73). 
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21 In the light of the above judgment and the 2014 Rules, and after recalling that, in 
the main proceedings, the decision on repeating a year is a matter for the Class 
Council and may be appealed before the Secretary-General (whose decision may 
be appealed before the Complaints Board, the court of first and final instance), the 
referring court observes that the possibility of an appeal as provided for in 
Article 67 of the 2014 Rules — the French text of which is worded as follows: 
[‘Les décisions administratives (…) peuvent faire l’objet d’un récours contentieux 
(…)’ (‘… administrative decisions … may be the subject of a contentious 
appeal)’] — should not be understood as leaving the parties concerned the 
alternative avenue of seeking judicial remedy before a national court. The General 
Rules of the European Schools are laid down by the Board of Governors and 
determine the conditions and the detailed rules relating to appeals before the 
Complaints Board, to which jurisdiction in the matter in question is reserved. 
22 Also relevant is the documentation filed by the School, such as the various rulings 
of the Complaints Board on appeals against certain decisions on repeating a year, 
and the Complaints Board’s 2007 activity report; this shows that new avenues of 
appeal against decisions on repeating a year were introduced in the 2005 Rules 
and that there has been a gradual extension of the Complaints Board’s jurisdiction 
over appeals, whereas previously that jurisdiction was limited to appeals by 
teaching staff. 
23 The practice of bringing appeals before the Complaints Board against decisions on 
repeating a year is confirmed by the order of the General Court of the European 
Union of 18 June 2020, JT v Secretary-General of the European Schools, T-42/20 
(ECLI:EU:T:2020:278); this concerned a case relating to an appeal by a student of 
the ‘RheinMain GmbH’ European School against the decision of the 2019 
European Baccalaureate Examining Board on failure to obtain the baccalaureate. 
In that order, the General Court, while declaring that it lacked jurisdiction to 
decide on the above appeal, stated that it could be brought, once the administrative 
procedure had been exhausted, exclusively before the Complaints Board, as a 
court or tribunal adjudicating at first or second instance in a case such as the 
present. 
24 The referring court requests, pursuant to Article 105 of the Rules of Procedure of 
the Court of Justice, that the reference for a preliminary ruling be decided under 
an expedited procedure on account of the importance of education to the student’s 
personal development and the international significance of the dispute.