As regards the argument based on the absence, at Kraainem, of official or subsidised secondary education in French, the Court recalls that Article 2 of the Protocol (P1-2) does not require the Contracting States to establish educational establishments: the question is thus one which is left to the evaluation of the competent national authorities. The Court also notes once again that in Belgium compulsory schooling extends essentially to primary education. It points out, incidentally, that Kraainem does not even possess, at present, education in Dutch at the secondary level.- D. As to the fourth question
<LI value=20>The fourth question concerns the issue of whether or not in the case of the Applicants, there is a violation of Article 2 of the Protocol (P1-2) and Articles 8 and 14 (art. 8, art. 14) of the Convention, or of any of those Articles,
"with regard to the conditions on which children whose parents reside outside the Greater Brussels district may be enrolled in the schools of that district (Section 17 of the Act of 30th July 1963)".
1. The Facts
<LI value=21>The second, third, fourth and fifth paragraphs of Section 17 of the Act of 30th July 1963 provide that:
"In all cases in which the child's language of instruction is determined by his maternal or usual language, the head of the school may register the child for a particular system only on production of one of the following:
(a) a certificate issued by the head of the school which the pupil has just left, certifying that his previous schooling has been through that language;
(b) a language declaration by the head of the child's family, and approved by the language inspectorate in all cases where the inspectorate has no doubts as to the correctness of such declaration;
(c) a decision by the Commission or Board referred to in Section 18.
Where a child is registered at a nursery school for the first time, the head of the school may, however, admit him on production of a language declaration. The latter must within one month be forwarded to the language inspectorate for verification.
In the case of pupils who enrol in a school in the Greater Brussels district and whose parents reside outside that district, the language of instruction shall, in the absence of any declaration to the contrary made by the head of the family and approved by the language inspectorate, be the language of the region in which the parents are resident.
The King shall lay down standard forms for the certificate and declaration which shall comprise any information likely to facilitate the verification of their correctness."
A Royal Decree was issued on 30 November 1966 which implemented this last paragraph; two other Royal Decrees of the same date stipulated the status and rules governing the functioning of the language inspectorate as provided for by Section 18 of the Act of 30th July 1963.
2. Arguments presented by the Applicants before or through the Commission
<LI value=22>According to the Applicants, these provisions are incompatible with Article 2 of the Protocol (P1-2) and Articles 8 and 14 (art. 8, art. 14) of the Convention. In the Greater Brussels district, "the language of instruction is" in principle "Dutch or French, according to the maternal or usual language of the child" (Section 5 of the Act of 30th July 1963). However, the system of the maternal or usual language does not secure to parents a complete freedom of choice: the declaration of the head of the family must be "a statement of fact" not "the expression of a wish", and the language inspectorate verifies its accuracy (Sections 17 and 18 of the Act of 30th July 1963). This control, which the Applicants consider to be "of an odious nature" in itself, in addition opens the door to "arbitrary" decisions, more especially as the maternal language may differ from the usual language and as there exist many bilingual homes. As to the appeals available under the Acts of 30th July 1963 (Section 18) and 23rd December 1946 (Conseil d'État), they do not have a suspensive effect and, moreover, cannot correct the fundamental defect in the system criticised.
The complaints of the Applicants, however, are principally directed against the fourth paragraph of Section 17 of the Act of 30th July 1963, which concerns the particular situation of parents wishing to send their children to school in the Greater Brussels district but whose homes are outside the district. This paragraph introduces a further obstacle to the exercise of the Applicants' freedom of choice: if they send their children to be educated in the capital, the language of instruction will normally be that of the region where they live, in this case Dutch. Of course the head of the family may make a declaration to the contrary but he will have to obtain, under the conditions described above, the agreement of the language inspectorate. To rebut the "legal presumption" embodied in the fourth paragraph of Section 17, he must provide a "counter proof" "a distinctly discriminatory procedure" in the view of the Applicants. "In doubtful or complex cases", which are no unusual thing in Belgium, the presumption will prevail.
For children leaving a nursery school situated in the unilingual Flemish area, sending them to Brussels constitutes an even more precarious solution by reason of the second and third paragraphs.
In short, Section 17 tends to deprive the head of the family "even at the price of dislocating his home", "of the elementary right to have his flesh and blood resemble him intellectually".
The signatories of Application No. 2126/64 nevertheless observe that "1253 children from Vilvorde attend French schools in Brussels or Wallonia". For the transport of children from the age of three up to nine or 10 years they have hired coaches; furthermore they have established a rota system to supervise the children's mounting at the various departure points and dismounting at the arrival points. Other Applicants seem to have adopted the same solution.
3. Arguments presented before the Court by the Belgian Government and by the Commission
<LI value=23>Before the Commission, the Belgian Government maintained that Section 17 of the Act of 30th July 1963, and in particular its fourth paragraph, violates neither Article 2 of the Protocol (P1-2) nor Articles 8 and 14 (art. 8, art. 14) of the Convention. While its principal argument was that the Articles (P1-2, art. 8, art. 14) were totally inapplicable (cf. supra), it presented a series of subsidiary arguments. It observed, in the first place, that the criterion of the maternal or usual language is much more simple, flexible and liberal than the Applicants contend. A child whose language is French runs no risk of being denied admission to the French classes of Greater Brussels, even if he has begun his schooling in Flanders and in Dutch. In this respect, the Act of 30th July 1963 differs from that of 14th July 1932 on one point only: it creates "two legal presumptions" based respectively on "the language in which the child was previously taught" (second paragraph of Section 17) and on the language of the region where his parents live (fourth paragraph). These presumptions may, however, be "rebutted by a declaration by the father of a family". As regards the language inspectorate, it does not function with the strictness alleged by the Applicants; its objectivity is further guaranteed through the appeals provided for by the legislation in force (Section 18 of the Act of 30th July 1963, Royal Decree of 30th November 1966, on the functioning of the language inspectorate and Act of 23rd December 1946 creating a Conseil d'État in Belgium). Consequently abuses ascribable to "punctilious officials" occur only rarely. Moreover, the Applicants are not entitled to complain thereof to the Commission until they have "sought a remedy" before the competent "national tribunal".
Before the Court, the Belgian Government referred expressly to the opinion of the Commission on the point in question. Moreover it emphasised that children whose mother tongue or usual language is, for example, German, rather than French or Dutch, "can enrol in a French-language school in the Greater Brussels district as well as in a Dutch-language school". It added that "schools in the Greater Brussels district that provide some special education" given in one language only may admit pupils whose mother tongue is not the language of instruction, even if their parents reside outside the district. It is sufficient, in such a case, that it is impossible for them to receive "the education in question in their own linguistic region" (Ministerial circular of 10th October 1963).
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