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  2. The Commission finally considers the question of whether or not Section 7 in fine of the Act of 30th July 1963 and Section 7 § 3-B of the Act of 2nd August 1963, on the point under consideration, comply with Article 2 of the Protocol and Article 8 of the Convention, this time read in conjunction with Article 14 (art. 14+P1-2, art. 14+8). Its answer is negative as regards Article 8 (art. 8) of the Convention and the second sentence of Article 2 of the Protocol (P1-2) but affirmative with respect to the first sentence of Article 2 (P1-2). The two provisions impugned by the Applicants seem to the Commission to figure among those which reflect a wish to assimilate minorities against their will into the sphere of the regional language. Not all of the inequalities of treatment created by Section 7 in fine of the Act of 30th July 1963, however, amount to discrimination. The two exceptions made in favour of certain foreign children, and the children of "professors, students and employees of the University" of Louvain are justified, in the first case, by the rules of international courtesy, and in the second by the "bilingual character" of the University. Neither does the Commission see any discrimination "in the fact that the Institut du Sacré-Coeur at Heverlee admits only girls, or in the concession extended there to children enrolled for the school year 1962-1963" (Royal Decrees of 8th August 1963 and 30th November 1966).
  3. On the other hand, the Commission believes that Section 7 in fine of the Act of 30th July 1963 is incompatible with the right to education as it is jointly safeguarded by the first sentence of Article 2 of the Protocol (P1-2) and Article 14 (art. 14) of the Convention, in so far as it closes the French schools at Louvain and at Heverlee to the "Applicants' children for the reason that they live in the Flemish region" (opinion expressed by eight votes to four). The position is the same as regards Section 7 of the Act of 2nd August 1963 in so far as paragraph 3-B excludes from the French-language classes in the six communes enjoying a special status those children whose parents do not reside within the communes, whereas the Dutch-language classes in these same communes "are open", according to paragraph 3-A, "subject to the availability of places", to "Dutch-speaking children" living in the neighbourhood and, in particular, in Wallonia (opinion expressed by seven votes to five).
  4. The Commission does not believe that on this point it is "necessary to distinguish between official and recognised private schools". The latter would be "entitled" and "prepared" to "admit pupils without taking their parents' place of residence into consideration at all" but for the language legislation and the risk of losing their right to State subsidies. As regards the official schools, "one can of course conceive that they might be reserved", "for administrative or financial reasons", "to children living in one of the communes" where they exist. "The information supplied both by the Applicants and by the Belgian Government", however, shows the absence of such reasons. The "residence conditions" in question "can only be explained by a desire to prevent", in the Flemish region, "the spread or continuance of the French language and culture" if not to bring about even the assimilation of "minorities into the language or their surroundings". This intention is "particularly manifest in the case of the French schools at Louvain and Heverlee" where they admit "children from Wallonia" even though they refuse "the children of French-speaking persons living" on the spot. Consequently, it "matters little that neither the Convention nor the Protocol obliges the State to establish or subsidise any education whatsoever": "in this case such education exists and, where it is private, it is subsidised". The exclusion of the Applicants' children is, on analysis, a "hardship" and the Dutch-speaking children derive from it "no advantage". Would the simple abolition of French-language classes at Louvain, Heverlee, Drogenbos, Kraainem, Linkebeek, Rhode-St. Genèse, Wemmel and Wezembeek-Oppem remove the discrimination in question? The Commission does not think it need consider this possibility, one of the effects of which would be to deprive the locality of Kraainem of a French school, a locality "which has a French-speaking majority": "what may happen as the result of a change in legislation in the near or distant future" does not concern the Commission. In any case it seems to the Commission "rather unlikely that the Belgian Government would consider adopting such a radical solution", which would probably be "difficult" to adopt in practice.
  5. Five members of the Commission find no violation in the case of Kraainem and the five other communes on the outskirts of Brussels; four of them equally find no violation in that of Louvain and Heverlee. The Commission draws the Court's attention to their dissenting opinions.
    1. 4. Decision of the Court
    <LI value=32>The Court will examine in turn the legal and administrative measures governing access to French-language education at, on the one hand, Louvain and Heverlee, and, on the other, the six communes with special facilities.
    Louvain and Heverlee belong to the Dutch-unilingual region. Although the legislature has authorised the maintenance of French-language education there, it has done so, above all, in consideration of the needs arising from the bilingual nature of the University of Louvain. The principles which govern the functioning of education in French in the two communes likewise determine the entrance requirements to this education. The benefits conferred by the provisions in dispute (Section 7 in fine of the Act of 30th July 1963 and the Royal Decrees of 8th August 1963 and 30th November 1966) therefore depend upon their purpose. Essentially, they are accorded to the French-speaking teaching staff, employees and students of the University of Louvain in whose absence the establishment could no longer retain its bilingual character. Likewise, if the French classes at Louvain and Heverlee are still open to children of French-speaking families living outside the Dutch-unilingual region, it is because they serve as teacher training classes for the bilingual University of Louvain. As for the privilege granted to certain children of foreign nationality, this is justified by the customs of international courtesy. Consequently, the exclusion of French-speaking children living in the Dutch unilingual region whose parents are not members of the teaching staff, students or employees of the University, does not amount to a discriminatory measure in view of the legitimacy of the specific objective of the legislature.
    The situation is completely different in the case of the six communes "with special facilities", which belong to the agglomeration surrounding Brussels, the capital of a bilingual State and an international centre. According to the information supplied to the Court, the number of French-speaking families in these communes is high; they constitute, up to a certain point, a zone of a "mixed" character.
    It is in recognition of this fact that Section 7 of the Act of 2nd August 1963 departed from the territorial principle, as the Court noted when dealing with the third question. It appears, indeed, from its first paragraph that the six communes no longer form part of the Dutch unilingual region, but constitute a "distinct administrative district" invested with its own "special status". From this the second paragraph draws a first set of consequences: it provides in substance that the six communes concerned enjoy a bilingual system "in administrative matters". As to the third paragraph, the compatibility of which with Articles 8 and 14 (art. 8, art. 14) of the Convention and with Article 2 of the Protocol (P1-2) is contested by the Applicants, it applies to "educational matters". It provides that the language of instruction is Dutch in the six communes; it requires nevertheless, the organisation, for the benefit of children whose maternal or usual language is French, of official or subsidised education in French at the nursery and primary levels, on condition that it is asked for by sixteen heads of family. However, this education is not available to children whose parents live outside the communes under consideration. The Dutch classes in the same communes, on the other hand, in principle accept all children, whatever their maternal or usual language and place of residence of their parents. The residence condition affecting therefore only one of the two linguistic groups, the Court is called upon to examine whether there results therefrom a discrimination contrary to Article 14 of the Convention, read in conjunction with the first sentence of Article 2 of the Protocol (art. 14+P1-2) or with Article 8 (art. 14+8) of the Convention.
    Such a measure is not justified in the light of the requirements of the Convention in that it involves elements of discriminatory treatment of certain individuals, founded even more on language than on residence.
    First, this measure is not applied uniformly to families speaking one or the other national language. The Dutch-speaking children resident in the French unilingual region, which incidentally is very near, have access to Dutch-language schools in the six communes, whereas French-speaking children living in the Dutch unilingual region are refused access to French-language schools in those same communes. Likewise, the Dutch classes in the six communes are open to Dutch-speaking children of the Dutch unilingual region whereas the French classes in those communes are closed to the French-speaking children of that region.
    Such a situation, moreover, contrasts with that which arises from the possibility of access to French-language schools in the Greater Brussels District, which are open to French-speaking children irrespective of their parents' place of residence (Sections 5 and 19 of the Act of 30th July 1963).
    It consequently appears that the residence condition is not imposed in the interest of schools, for administrative or financial reasons: it proceeds solely, in the case of the Applicants, from considerations relating to language. Furthermore the measure in issue does not fully respect, in the case of the majority of the Applicants and their children, the relationship of proportionality between the means employed and the aim sought. In this regard the Court, in particular, points out that the impossibility of entering official or subsidised French-language schools in the six communes "with special facilities" affects the children of the Applicants in the exercise of their right to education, all the more in that there exist no such schools in the communes in which they live.
    The enjoyment of the right to education as the Court conceives it, and more precisely that of the right of access to existing schools, is not therefore on the point under consideration secured to everyone without discrimination on the ground, in particular, of language. In other words, the measure in question is, in this respect, incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention. In these circumstances, the Court does not consider it necessary to examine whether the said measure respects Article 8 (art. 8) of the Convention, read in conjunction with Article 14 (art. 14+8) or in isolation.
    F. As to the sixth question
    <LI value=33>The sixth 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 these Articles.
    "in so far as the Acts of 1932 resulted, and those of 1963 result, in absolute refusal to homologate certificates relating to secondary schooling not in conformity with the language requirements in education."
    1. The Facts
    <LI value=34>At the end of each stage of secondary schooling the teaching establishments deliver to pupils a certificate specifying the course of studies followed and that they have been successfully completed. In fact, Belgium has not adopted the "Baccalauréat" system.
    The certificate granted on the completion of secondary studies states that the holder is considered suitable for higher education. However it acquires legal value only after "homologation" by a board, set up for the purpose for the whole of the country, the homologation board. This examines only the certificates. Homologation is granted only if the studies comply with the legal requirements.
    The holder of a non-homologated certificate may go on to higher studies, for instance at a University, and obtain a "non-recognised" ("scientifique") university degree, but not a "legally recognised" or "academic" degree. However, only "legally recognised" or "academic" degrees give access to a number of posts and professions: careers in the administration or the judiciary, the Bar, the profession of notary and the medical profession, etc. The holders of non-homologated certificates who aspire to such professions or who wish to acquire a legally recognised or academic degree, must take a full examination before a body called "the Central Board".
    <LI value=35>The homologation of a certificate depends on compliance not only with the technical and academic requirements laid down by law but also with those which concern the educational linguistic system.
    The Act of 12th May 1910 provided that, in order to be able to sit the examination of candidat en philosophie et lettres, candidat notaire, candidat en sciences naturelles, candidat en sciences physiques et mathématiques, holders of certificates which were not admissible for homologation for linguistic reasons had to take before the Central Board an additional examination relating to whichever of the two national languages had not been the language of their schooling at intermediate level. The position was similar in the draft stage of the Act of 15th July 1932; the explanatory memorandum of the Bill emphasised that those who aspired to a "profession for which a legally recognised degree was required should furnish proof of their knowledge of the language of the region in which they would be called upon to practise" The Belgian Parliament, however, modified this draft which became the Act of 15th July 1932 on the conferring of academic degrees.
  7. The Act of 15th July 1932 repealed that of 12th May 1910 (Section 4). Its main provisions were as follows:
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