1 This request for a preliminary ruling concerns the interpretation of Article 27(2) of the 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; ‘the CSEE’).
2 The request has been made in proceedings between the Scuola europea di Varese (European School, Varese, Italy) and PD and LC, acting as persons exercising parental responsibility over their son NG, a minor, concerning the jurisdiction of the Italian courts to hear and determine an action for annulment of a decision of a Class Council not to authorise NG, a fifth-year secondary-school pupil at that school, to be promoted to the year above.
3 Under Article 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331; ‘the Vienna Convention’), entitled ‘Scope of the present Convention’, that convention ‘applies to treaties between States’.
4 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; …’
5 Under Article 31 of the Vienna 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. …’
6 The European Schools were originally set up by two instruments: the Statute of the European School, signed at Luxembourg on 12 April 1957 (United Nations Treaty Series, vol. 443, p. 129), 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, vol. 752, p. 267). Those instruments were replaced by the CSEE, which entered into force on 1 October 2002.
7 The third and fourth recitals of 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) and the third and fourth recitals of Commission Decision 94/558/ECSC of 17 June 1994 on the conclusion of the Convention defining the Statute of the European Schools (OJ 1994 L 212, p. 15) state: ‘Whereas the participation of the Communities in the implementation of [the CSEE] is necessary in order to ensure the attainment of the objectives of [the Communities]; Whereas [the Communities] will participate in the implementation of the [CSEE] by exercising the powers arising from the rules laid down by the [CSEE] and by such future acts as [they] may adopt in accordance with the terms of the Convention’.
8 The first to fourth recitals of the CSEE are worded as follows: ‘considering that, for the education together of children of the staff of the European Communities in order to ensure the proper functioning of the European Institutions, establishments bearing the name “European School”, have been set up from 1957 onwards; considering that the European Communities are anxious to ensure the education together of these children and, for this purpose, make a contribution to the budget of the European Schools; considering that the European School system is “sui generis”; considering that it constitutes a form of cooperation between the Member States and between them and the European Communities while fully acknowledging the Member States’ responsibility for the content of teaching and the organisation of their educational system, and for their cultural and linguistic diversity; considering that: - the Statute of the European School, adopted in 1957, should be consolidated to take account of all the relevant texts adopted by the Contracting Parties; - it should be adapted, taking into account the development of the European Communities; - the decision-making procedure within the organs of 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 it; to this end a Complaints Board should be created, with strictly limited jurisdiction; - the jurisdiction of the Complaints Board will be without prejudice to national courts’ jurisdiction in relation to civil and criminal liability’.
9 The second paragraph of Article 1 of the CSEE provides: ‘The purpose of the Schools is to educate together children of the staff of the European Communities. …’
10 Article 6 of the CSEE states: ‘Each School shall have the legal personality necessary for the attainment of its purpose, as defined in Article 1 … It may be a party to legal proceedings. … As far as its rights and obligations are concerned, the School shall be treated in each Member State, subject to the specific provisions of this Convention, as an educational establishment governed by public law.’
11 Article 7 of the CSEE provides: ‘The organs common to all the Schools shall be: 1. the Board of Governors; 2. the Secretary-General; 3. the Boards of Inspectors; 4. the Complaints Board; Each School shall be administered by the Administrative Board and managed by the Headteacher.’
12 Under Article 8(1) of the CSEE: ‘… the Board of Governors shall consist of the following members: (a) the representative or representatives at ministerial level of each of the Member States of the European Communities authorised to commit the Government of that Member State, on the understanding that each Member State has only one vote; (b) a member of the Commission of the European Communities; (c) a representative designated by the Staff Committee (from among the teaching staff) … (d) a representative of the pupils’ parents designated by the Parents’ associations …’
13 Article 9(1) of the CSEE provides: ‘Save in cases where unanimity is required by this Convention, decisions of the Board of Governors shall be adopted by a two-thirds majority of the members comprising it …’
14 Article 10 of the CSEE provides: ‘The Board of Governors shall supervise the implementation of this Convention; for this purpose, it shall have the necessary decision-making powers in educational, budgetary and administrative matters … The Board of Governors shall lay down the General Rules of the Schools. …’
15 Under Article 11 of the CSEE: ‘In educational matters, the Board of Governors shall determine which studies shall be undertaken and how they shall be organised. In particular, following the opinion of the appropriate Board of Inspectors, it shall: … 3. … lay down rules for the promotion of pupils to the next year of study or to the secondary school … 4. arrange for examinations to be held as a means of certifying the work done in the School; it shall lay down rules for the examinations, appoint examining boards and award diplomas. It shall ensure that the papers for the examination are set …’
16 Article 12 of the CSEE provides: ‘In administrative matters, the Board of Governors shall: … 2. appoint the Secretary-General … …’
17 Article 14 of the CSEE provides: ‘The Secretary-General shall represent the Board of Governors … He [or she] shall represent the Schools in legal proceedings. He [or she] shall be responsible to the Board of Governors.’
18 Article 26 of the CSEE states: ‘The Court of Justice of the European Communities shall have sole jurisdiction in disputes between Contracting Parties relating to the interpretation and application of this Convention which have not been resolved by the Board of Governors.’
19 Article 27 of the CSEE provides: ‘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 [or] 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.’
20 Under Article 31(4) of the CSEE: ‘Any Contracting Party may request that this Convention be amended. To that end, it shall notify the Luxembourg Government of its request. The Luxembourg Government shall make the necessary arrangements with the Contracting Party holding the Presidency of the Council of the European Communities to convene an Intergovernmental Conference.’
21 Article 61(A)(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.
22 Under 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 …’
23 Article 66 of the 2014 Rules, entitled ‘Administrative appeals’, states: ‘1. The decisions referred to in Articles … 62 may be the subject of an administrative appeal under the conditions laid down in those articles. … … 5. The decision of the Secretary-General, ruling on an administrative appeal, shall be notified to the applicant(s) …’
24 Article 67 of the 2014 Rules, entitled ‘Contentious appeals’, provides: ‘1. 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. On pain of being declared inadmissible, all contentious appeals must be lodged within two weeks of notification or publication of the disputed decision … 5. The appeals provided for in this article shall be investigated and judged in the conditions laid down by the Rules of Procedure of the Complaints Board. 6. The Complaints Board is required to give a ruling within six months of receipt of an appeal, without prejudice to application of Articles 16, 34 and 35 of the Rules of Procedure of the Complaints Board of the European Schools, which provide for the possibility of lodging an appeal in summary proceedings.’
25 The possibility of bringing a contentious appeal before the Complaints Board against the decision of the Secretary-General ruling on an appeal against a decision on repeating a year adopted by the Class Council was introduced by the General Rules of the European Schools, in version No 2004-D-6010-en-5, which entered into force on 2 February 2005 (‘the 2005 Rules’). Previously, the General Rules of the European Schools did not provide for such an appeal before the Complaints Board, and only an administrative appeal could be brought by the pupil’s legal representatives.
26 Under Article 41 of the codice di procedura civile (Code of Civil Procedure): ‘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 …’
27 On 25 June 2020, PD and LC, whose son NG was then a fifth-year secondary-school pupil at the European School, Varese, were notified of a decision of the relevant Class Council not to authorise NG to be promoted to the year above.
28 On 20 July 2020, PD and LC brought an action before the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy) for annulment of that decision.
29 By order of 9 September 2020, that court declared that it had jurisdiction to hear that action and granted the application for interim measures made to it for the purposes of the conditional admission of NG to the year above, while adjourning consideration of the substance of the case to a hearing on 19 October 2021.
30 On 13 October 2021, the European School, Varese, acting on the basis of Article 41 of the Code of Civil Procedure, submitted an application to the Combined Chambers of the Corte suprema di cassazione (Supreme Court of Cassation) for a preliminary ruling on the question of jurisdiction, seeking a declaration that the Italian courts had no jurisdiction to hear and determine the abovementioned dispute. According to that school, such a dispute falls within the sole jurisdiction of the Complaints Board, pursuant to the combined provisions of Article 27 of the CSEE and Article 67(1) of the 2014 Rules.
31 PD and LC, 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. According to those parties to the main proceedings, an extension of the jurisdiction of the Complaints Board to acts adopted by a Class Council would therefore constitute an amendment of the CSEE, which could be made only in accordance with the procedure laid down in Article 31(4) of that convention.
32 PD and LC also contend that Article 62(1), Article 66(1) and Article 67(1) of the 2014 Rules establish a mere option, for the pupil’s legal representatives, to lodge an appeal against the decision of the Class Council with the Secretary-General, followed by a possible contentious appeal before the Complaints Board. According to PD and LC, those legal representatives therefore remain free to opt for another legal remedy by challenging the decision of the Class Council directly before the national court with jurisdiction.
33 Called upon to rule on that preliminary issue relating to the jurisdiction of the Italian courts, the Corte suprema di cassazione (Supreme Court of Cassation) states that, in a judgment of 15 March 1999 (IT:CASS:1999:138CIV), it ruled in favour of such jurisdiction, in circumstances comparable to those that characterise the dispute referred to in paragraph 28 above. In that judgment, the Corte suprema di cassazione (Supreme Court of Cassation) held that, under the combined provisions of the second paragraph of Article 6 and Article 27(1), (2) and (7) of the CSEE, 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.
34 The Corte suprema di cassazione (Supreme Court of Cassation) observes, however, that, at the time when it ruled to that effect, the General Rules of the European Schools 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.
35 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.
36 According to that court, such a solution may find support, on the one hand, in the lessons drawn from the judgment of 11 March 2015, Oberto and O’Leary (C‑464/13 and C‑465/13, ‘the judgment in Oberto and O’Leary’, EU:C:2015:163), in which the Court already accepted, relying on the rules of the Vienna Convention, 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.
37 The order of the General Court of the European Union of 18 June 2020, JT v Secrétaire général des écoles européennes and Chambre de recours des écoles européennes (T‑42/20, EU:T:2020:278), as well as 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.
38 Observing, however, that the judgment in Oberto and O’Leary related to an act adopted by the Headteacher of a European School concerning the limitation of the duration of the employment relationship in the contract of employment concluded between a European School and a part-time teacher and that the jurisdiction of the Complaints Board derived, in that regard, not from the General Rules of the European Schools but from the conditions of employment for part-time teachers, the referring court takes the view that the factual differences that thus exist 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.
39 In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is the first sentence of the first subparagraph of Article 27(2) of the [CSEE] 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 [of the European Schools] 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?’
40 The referring court requested that the present reference for a preliminary ruling be determined pursuant to an expedited procedure under Article 105 of the Rules of Procedure of the Court of Justice. In support of its request, that court stated that the application of that procedure was justified both by the need to clarify as quickly as possible the school situation of the pupil concerned and by the importance, for all the Contracting Parties to the CSEE, of clarifying the extent of the Complaints Board’s jurisdiction in relation to disputes such as that at issue in the main proceedings.
41 Article 105(1) of the Rules of Procedure of the Court provides that, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.
42 It must be borne in mind that such an expedited procedure is a procedural instrument intending to address matters of an exceptional urgency (judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 37 and the case-law cited).
43 In the present case, the President of the Court decided, on 21 July 2022, that there was no need to grant the request referred to in paragraph 40 above.
44 In that regard, it is apparent from the Court’s case-law that the mere interest of litigants in determining as quickly as possible the scope of their rights under EU law, while legitimate, is not such as to establish the existence of an exceptional circumstance for the purposes of Article 105(1) of the Rules of Procedure of the Court (order of the President of the Court of 28 November 2013, Sähköalojen ammattiliitto, C‑396/13, EU:C:2013:811, paragraph 16 and the case-law cited).
45 In the present case, as regards, more specifically, the situation of the pupil concerned, it must first be noted that it is apparent from the statements in the order for reference that the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy) ordered on 9 September 2020 that that pupil be conditionally admitted to the year above during the 2020/2021 school year. Second, the present request for a preliminary ruling was not submitted to the Court until 28 June 2022, so that the answer expected from the Court could not, in any event, have had any practical consequences in respect of that pupil’s progression through school until, at the earliest, during the 2022/2023 school year. In such circumstances, it cannot be concluded that it is a matter of exceptional urgency within the meaning of the case-law referred to in paragraph 42 above.
46 Furthermore, however legitimate it may be, the supposed interest of the Contracting Parties to the CSEE in clarifying the question of interpretation raised in the present request for a preliminary ruling as quickly as possible does not appear to be such as to establish the existence of an exceptional circumstance for the purposes of Article 105(1) of the Rules of Procedure of the Court.
47 By its question, the referring court asks, in essence, whether the combined provisions of Article 27(2) of the CSEE and Articles 61, 62, 66 and 67 of the 2014 Rules must be interpreted as meaning that the Complaints Board is to have sole jurisdiction in the first and final instance, once all administrative channels provided for in those 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.
48 At the hearing, PD and LC expressed doubts as to whether the Court has jurisdiction to give a preliminary ruling in the present case, arguing, in essence, that, under Article 26 of the CSEE, the Court is entitled to rule on questions relating to the interpretation of that convention only where the dispute brought before it relating to such interpretation or to the application of that convention is between the Contracting Parties to that convention and has not been resolved by the Board of Governors.
49 However, as the Advocate General observed in points 33 and 34 of his Opinion, the fact that such a specific judicial mechanism was thus established in order to enable such disputes between the Contracting Parties to the CSEE to be submitted to the Court is not such as to affect the scope of the jurisdiction that the Court also has, by virtue of the Treaties themselves, to give a ruling, in accordance with the provisions of Article 267 TFEU, on the interpretation of those Treaties and of acts of the institutions, where such a question is, as in the case in the main proceedings, raised before a court or tribunal of a Member State and that court or tribunal considers that a decision on the question is necessary to enable it to give judgment and requests the Court to give a ruling thereon.
50 In that regard, the Court has, moreover, already held that an international agreement such as the CSEE, which was concluded on the basis of Article 235 of the EC Treaty (which became Article 308 EC, itself now Article 352 TFEU) by the European Communities, which were empowered to do so by Decisions 94/557 and 94/558, constitutes, as far as the European Union is concerned, an act of an institution of the European Union, within the meaning of point (b) of the first paragraph of Article 267 TFEU. The provisions of such an agreement thus form an integral part of the EU legal system as from its entry into force, so that the Court has jurisdiction to give preliminary rulings concerning the interpretation of that agreement and of acts adopted on the basis thereof (see, to that effect, judgment in Oberto and O’Leary, paragraphs 29 to 31 and the case-law cited), acts which include, in particular, the 2014 Rules.
51 The Court therefore has jurisdiction to give a preliminary ruling on the interpretation of that convention and of those rules.
52 First of all, it should be borne in mind 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 (judgment in Oberto and O’Leary, paragraph 32 and the case-law cited).
53 It also follows from the case-law that 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 (judgment in Oberto and O’Leary, paragraph 33 and the case-law cited).
54 Therefore, although the CSEE constitutes, as far as the European Union is concerned and as recalled in paragraph 50 above, 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 (judgment in Oberto and O’Leary, paragraph 34 and the case-law cited).
55 The international law of treaties was consolidated, essentially, in the Vienna Convention. Under Article 1 of that convention, the latter applies to treaties between States. However, under Article 3(b) of that convention, the fact that it does not apply to international agreements concluded between States and other subjects of international law is not to affect the application to such agreements of any of the rules set forth in the Vienna Convention to which they would be subject under international law independently of that convention (judgment in Oberto and O’Leary, paragraph 35).
56 It follows that the rules laid down in the Vienna Convention 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 (see, to that effect, judgment in Oberto and O’Leary, paragraphs 36 and 37 and the case-law cited).
57 In the present case, it should be recalled, first, that, under the first subparagraph of Article 27(2) of the CSEE, the Complaints Board 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 that convention to all persons covered by it with the exception of administrative and ancillary staff, and regarding the legality of any act based on that 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 that convention. In that regard, the second subparagraph of Article 27(2) of the CSEE states, moreover, that the conditions and detailed rules relative to proceedings brought before the Complaints Board 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.
58 Second, it is apparent from the combined provisions of Article 61(A)(1), Article 62(1) and (2), Article 66(1) and (5) and Article 67(1) of the 2014 Rules that pupils’ legal representatives are to have no right to bring an administrative appeal against decisions on promotion to the year above in the secondary school taken by the relevant Class Council of a European School except in cases of procedural irregularity or recognition of new facts by the Secretary-General, and that, if such an appeal is rejected by the Secretary General, a contentious appeal against that rejection decision may be brought before the Complaints Board.
59 As regards the scope of those provisions of the 2014 Rules, it must be stated at the outset that, contrary to what PD and LC have argued, those provisions cannot be read as meaning that the administrative appeal, possibly followed by a contentious appeal before the Complaints Board, which those provisions thus provide for, coexists with another available remedy consisting, for the legal representatives of the pupil concerned, in bringing an action directly before the national courts against a decision of a Class Council not to authorise that pupil to be promoted to the year above in the secondary school.
60 According to the actual wording of Article 62(1) of the 2014 Rules, there is ‘no right of appeal’ against the decisions concerned ‘except in cases of procedural irregularity or recognition of new facts by the Secretary-General’, which shows that the only way for a pupil’s legal representatives to challenge such a decision is, initially, to refer the matter to the Secretary-General by means of the administrative appeal thus provided for, to the exclusion, at that stage, of any legal action directly brought against that decision.
61 As is apparent, moreover, from the combined provisions of the first subparagraph of Article 27(2) of the CSEE and of Article 66(1) and (5) and Article 67(1) of the 2014 Rules, the decision taken by the Secretary-General following such an administrative appeal, for its part, may have a contentious appeal brought against it only before the Complaints Board, which has, in such a case, sole jurisdiction in the first and final instance as regards the examination of the legality of that decision and the decision of the Class Council not to authorise the pupil concerned to be promoted to the year above. In that regard, it should also be noted that Article 27(6) of the CSEE states that the judgments of the Complaints Board are to be binding on the parties and that they are, if necessary, to be rendered enforceable by the relevant authorities of the Member States, which also confirms that those authorities cannot disregard the scope of the jurisdiction, which is by definition sole jurisdiction, conferred on the Complaints Board.
62 In the light of those preliminary clarifications, and with regard to whether the first subparagraph of Article 27(2) of the CSEE must be interpreted as not precluding sole jurisdiction such as that deriving from the provisions of the 2014 Rules referred to in paragraph 58 above from being conferred on the Complaints Board, it must, first of all, be stated that the condition laid down in the first subparagraph of Article 27(2), according to which disputes brought before the Complaints Board must relate to the application of the CSEE to ‘all persons covered by it’ is satisfied in the present case.
63 There is no doubt that such a category of persons includes pupils in the European Schools, who are the main beneficiaries of the educational system and structures set up under the CSEE. The first recital of that convention states, in that regard, that the European Schools were set up for the education together of children of the staff of the European Communities in order to ensure the proper functioning of the European institutions. Those pupils are, moreover, expressly referred to in several provisions of the CSEE and, in particular, in point 3 of Article 11 of that convention, according to which it is for the Board of Governors to law down rules for the promotion of pupils to the next year of study or to the secondary school.
64 Next, as regards the condition, also laid down in the first subparagraph of Article 27(2) of the CSEE, that the action must be directed against an ‘act based on the Convention or rules made under it, adversely affecting such persons’, it is clear, first, from the case-law of the Court that that concept of an ‘act adversely affecting’ a person must be interpreted broadly and must be understood as any act that is capable of directly affecting a particular legal position (see, to that effect, judgment in Oberto and O’Leary, paragraphs 49 and 53). That is clearly the case of a decision refusing a pupil the right of access to the year above.
65 Second, it is common ground that decisions on promotion to the year above in the secondary school are taken by the relevant Class Council on the basis of Article 61(A)(1) of the 2014 Rules, that is, a provision adopted by the Board of Governors pursuant to the combined provisions of the first and second paragraphs of Article 10 of the CSEE and points (3) and (4) of Article 11 thereof. A decision of a Class Council not to authorise such promotion therefore constitutes an act ‘based on the [CSEE] or rules made under it’ within the meaning of the first subparagraph of Article 27(2) of that convention.
66 Last, as regards the condition in that first subparagraph of Article 27(2) that acts having an adverse effect against which an appeal may be brought before the Complaints Board must be taken with regard to the persons concerned ‘on the part of the Board of Governors [or] the Administrative Board of a school’, the Court, relying on the rules of interpretation contained in Article 31 of the Vienna Convention, has already stated, in paragraph 58 of the judgment in Oberto and O’Leary, that the mere fact that the acts of the Headteacher of a European School are not expressly mentioned in that provision cannot have the effect of excluding them from the scope of that provision.
67 In the present case, it must be determined whether, by analogy with the Court’s 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 referred to in paragraph 58 above, 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.
68 In that regard, as regards Article 31(1) of the Vienna Convention, it should be borne in mind 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.
69 As regards, in the first place, the legislative context of the words ‘act … on the part of the Board of Governors [or] the Administrative Board of a school’ in the first subparagraph of Article 27(2) of the CSEE, it is necessary, first, to take account of the fact that, under the second subparagraph of Article 27(2) of that convention, the conditions and detailed rules relative to proceedings brought before the Complaints Board are to be laid down, as appropriate, inter alia by the General Rules of the European Schools (see, to that effect, judgment in Oberto and O’Leary, paragraph 59). In the present case, the rules conferring sole jurisdiction on the Complaints Board, once the administrative appeal provided for has first been exhausted, to hear and determine contentious appeals relating to decisions of a Class Council not to authorise a pupil to be promoted to the year above and the rules specifying the procedures for those appeals are laid down in those general rules, namely the 2014 Rules.
70 Second, as already pointed out in paragraph 65 above, the rules conferring on the Class Council the power to decide whether pupils are promoted to the year above and governing such promotion are themselves laid down in the 2014 Rules and have thus been adopted by the Board of Governors pursuant to the powers conferred on it by the provisions of the first and second paragraphs of Article 10 and Article 11(3) and (4) of the CSEE. Thus, while it is true that the act at issue in the main proceedings was not adopted directly by the Board of Governors, in so far as it was adopted by a Class Council, it was nevertheless adopted by that Class Council under the limited powers conferred on it by an act adopted by the Board of Governors.
71 Third, the sole jurisdiction of the Complaints Board under Article 67 of the 2014 Rules primarily concerns the decision by which the Secretary-General ruled on the appeal brought by the legal representatives of the pupil concerned against the decision of the Class Council not to authorise that pupil to be promoted to the year above. As is apparent from point 2 of the first paragraph of Article 7, from point 2 of Article 12 and from Article 14 of the CSEE, the Secretary-General is a body common to all the European Schools who is appointed by the Board of Governors, is empowered to represent the Board of Governors and is responsible to that board. It follows that the acts of the Secretary-General may ultimately be attributed to the Board of Governors. That is particularly the case where those acts are adopted by the Secretary-General when that board has empowered him or her to do so, as is the case under Article 62 of the 2014 Rules.
72 As regards, in the second place, the objectives pursued by the CSEE, as is apparent from the first recital of that convention, the European Schools were set up for ‘the education together of children of the staff’ of the European Union, in order to ensure the ‘proper functioning of the European institutions’.
73 As the Advocate General observed in points 73 and 75 of his Opinion, entrusting a single specialised court or tribunal, which forms part of the international organisation that the European Schools constitute, with the judicial review of the acts adopted by the Class Councils relating to the promotion of pupils in those schools to the year above may contribute to a uniform procedural and judicial approach and to the pursuit of such an objective of education together, at the same level and under equal conditions in all of those schools.
74 It follows, therefore, from the considerations set out in paragraphs 69 to 73 above 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 referred to in paragraph 58 above does not infringe that provision of the CSEE.
75 As regards Article 31(3)(a) and (b) of the Vienna Convention, 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.
76 In that regard, the Court has previously had occasion to emphasise that it was neither illegitimate nor unusual, under international law, for provision to be made that the Parties to an international agreement may clarify, as their joint wishes concerning the effect of that agreement develop, the interpretation of that agreement. Such clarification may be introduced by the Parties themselves or by a body set up by the Parties on which they confer a power to adopt decisions that will be binding on them. Such interpretative acts have, in that case, the legal effects stemming from Article 31(3)(a) of the Vienna Convention (see, to that effect, Opinion 1/17 (EU-Canada CET Agreement), of 30 April 2019, EU:C:2019:341, paragraphs 233 and 234).
77 The Court has, moreover, already held that, in order to determine the scope of the words ‘act … on the part of the board of Governors [or] the Administrative Board of a school’ contained in the first sentence of the first subparagraph of Article 27(2) of the CSEE, it is appropriate, in accordance with Article 31(3)(b) of the Vienna Convention, inter alia, to refer to any subsequent practice in the application of that convention (see, to that effect, judgment in Oberto and O’Leary, paragraphs 60 and 62).
78 In the present case, it must be pointed out, first, that, as is apparent from Article 8(1) of the CSEE, the Board of Governors is to consist, inter alia, of ‘the representative or representatives at ministerial level of each of the Member States of the European [Union] authorised to commit the Government of that Member State’ and a member of the European Commission.
79 It follows that the provisions of the 2014 Rules and, in particular, Articles 62, 66 and 67 thereof, which, on the one hand, introduced the possibility of bringing an administrative appeal before the Secretary-General against decisions of a Class Council not to authorise a pupil to be promoted to the year above in the secondary school and, on the other, conferred on the Complaints Board sole jurisdiction to hear and determine a contentious appeal brought against the decision adopted by the Secretary-General following such an administrative appeal, were adopted by duly authorised representatives of those Member States and of the European Union who were empowered to commit them.
80 Second, even though Article 26 of the CSEE confers on the Court jurisdiction to rule on disputes between the Contracting Parties relating to the interpretation and application of that convention which have not been resolved by the Board of Governors, the adoption of Articles 62, 66 and 67 of the 2014 Rules and, before that, the adoption of the corresponding provisions of the 2005 Rules, did not result in any cases being brought before the Court by those contracting parties to prevent or call into question the adoption of such articles. Thus, the very adoption of those provisions of the 2014 Rules by the Contracting Parties to the CSEE, meeting within the Board of Governors, appears to attest to a consensus between those parties as to the application and interpretation that were made of the provisions of the CSEE when the provisions of the 2014 Rules were adopted.
81 Moreover, those contracting parties have neither disputed nor called into question, if necessary through the mechanism provided for to that effect in Article 26 of the CSEE, the systematic application has subsequently been made of the provisions of Articles 62, 66 and 67 of the 2014 Rules and the analogous provisions previously set out in the 2005 Rules by the Secretary-General, who had to hear administrative appeals against Class Council decisions not to authorise a pupil to be promoted to the year above in the secondary school, and by the Complaints Board, which was called upon to hear and determine contentious appeals brought against the decisions of the Secretary-General and which systematically exercised the jurisdiction conferred on it by Article 67 of the 2014 Rules.
82 In those circumstances, 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.
83 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 (see, to that effect, judgment in Oberto and O’Leary, paragraphs 65 to 67).
84 It follows from all of the foregoing 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.
85 It should also be noted that, contrary to what PD and LC have argued, 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.
86 In that regard, it is apparent from paragraphs 52 and 72 above that the European Schools system is a sui generis system, established by means of an international agreement, resulting from commitments entered into between the European Union and its Member States, and the rationale for which is the intention of those parties to ensure the proper functioning of the institutions of the European Union. Although it embodies an international organisation that is separate from the European Union, the European Schools system is thus very closely linked to the European Union in functional terms, as recalled in paragraph 53 above. The third and fourth recitals of Decisions 94/557 and 94/558 state, moreover, that the conclusion of the CSEE by the European Union was guided, inter alia, by the fact that the participation of the European Union in the implementation of that convention, by exercising the powers arising from the rules laid down by that convention and by such future acts as it may adopt in accordance with the terms of that convention, was necessary in order to ensure the attainment of the objectives of the European Union.
87 As the Commission submitted at the hearing and the Advocate General observed in point 97 of his Opinion, the legal order put in place by the Treaties establishing the European Union thus represents a body of rules of international treaty law that may be relevant for the purpose of interpreting the CSEE, as is apparent from Article 31(3)(c) of the Vienna Convention. That provision, which codifies customary international law, provides that, when interpreting a treaty, there is to be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties, which include, inter alia, the other treaties concluded by the Contracting Parties to the treaty which is the subject of such an interpretation (see ICJ, Case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), judgment of 4 June 2008, ICJ Reports 2008, p. 219, § 112 to 114). In the present case, the CSEE was concluded by the Member States of the European Union and the European Union itself, the former being parties to the Treaties establishing the latter and the latter deriving its existence, its legal personality and its powers from those Treaties.
88 In that regard, it must also be recalled that international agreements entered into by the European Union must be entirely compatible with the Treaties and with the constitutional principles stemming therefrom, which include, inter alia, the guarantees enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, Opinion 1/17 (EU-Canada CET Agreement), of 30 April 2019, EU:C:2019:341, paragraphs 165 and 167 and the case-law cited).
89 As regards the CSEE, it follows in particular from the considerations set out in paragraphs 86 to 88 above that 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 (see, to that effect, judgment of 14 June 2011, Miles and Others, C‑196/09, EU:C:2011:388, paragraph 43, and judgment in Oberto and O’Leary, paragraph 74).
90 As regards, more specifically, the principle of effective judicial protection at issue in the present case, according to settled case-law, that principle is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (judgment of 18 May 2021, Asociaţia Forumul Judecătorilor din România and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 190 and the case-law cited).
91 Furthermore, it is apparent from the fifth indent of the fourth recital of the CSEE that its objectives include providing adequate judicial protection against acts of the Board of Governors or the Administrative Boards of the European Schools and that the Complaints Board was set up with that objective in mind (see, to that effect, judgment in Oberto and O’Leary, paragraph 48).
92 In that respect, as regards, first of all, the Complaints Board as such, the Court has already held that that body satisfies all of 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 (judgment in Oberto and O’Leary, paragraph 72 and the case-law cited).
93 Next, as regards the fact that the Complaints Board rules in the first and final instance, it should be borne in mind that, under Article 47 of the Charter, 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 (judgment in Oberto and O’Leary, paragraph 73 and the case-law cited).
94 Last, as regards the extent of the jurisdiction conferred on the Complaints Board with regard to decisions of a Class Council of a European School not to authorise a pupil to be promoted to the year above, it is apparent from Article 62(1) of the 2014 Rules that pupils’ legal representatives are to have no right of appeal against such 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.
95 That provision states that ‘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, while specifying in that regard, inter alia, that it is to be the schools’ responsibility to make practical organisational arrangements for examinations and those 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, and 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 that provision.
96 Article 62(1) of the 2014 Rules states, in addition, in the last subparagraph thereof, that the Class Council is to 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 that appeals may not be lodged against those assessments.
97 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.
98 Even a judicial appeal thus delimited - in order, in particular, to preserve the discretion in educational matters that must necessarily revert to the panel of teachers who taught the pupil whose promotion to the year above falls to be examined and decided by that panel - 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. As is apparent from paragraph 89 above, 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.
99 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 abovementioned 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 (see, to that effect, judgments of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 145, and of 15 April 2021, FV v Council, C‑875/19 P, EU:C:2021:283, paragraph 65 and the case-law cited).
100 In the light of all the foregoing, the answer to the question referred for a preliminary ruling is that the combined provisions of Article 27(2) of the CSEE and Articles 61, 62, 66 and 67 of the 2014 Rules must be interpreted as meaning that the Complaints Board is to have sole jurisdiction in the first and final instance, once all administrative channels provided for in those 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.
101 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.