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<LI value=14>The third 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 of Articles 8 and 14 (art. 8, art. 14) of the Convention or of any of those Articles, "with regard to the special status conferred by Section 7, third paragraph, of the Act of 2nd August 1963, on six communes, of which Kraainem is one, on the periphery of Brussels", this being without prejudice to the conditions of residence referred to in the fifth question.
1. The Facts
<LI value=15>Situated some kilometres to the east of Brussels, the commune of Kraainem belonged, under the system created by the 1932 Acts, to the unilingual Flemish region. Following "a considerable migration of French-speaking persons from Brussels" to the "more airy periphery" and as a result of a "spontaneous phenomenon (...) of francisation", Kraainem gradually lost its character of a purely Flemish locality. The last linguistic census which took place in 1947, showed that 47 % of the population were French-speaking. According to the signatories of Application No. 1677/62, an "indirect linguistic census" was taken in Kraainem on 31 December 1961 despite the Act of 24th July 1961: the commune administration, having distributed bilingual forms to the population, ascertained that 61.18 % of the population was French-speaking, and today it is 65 %. On the other hand, the Belgian Government is of the opinion that these "so called statistics", "compiled in circumstances far removed from objective scientific research", should be treated "with the greatest reserve".
Be this as it may, Kraainem at present forms part neither of "the Dutch-language region", nor "the French-language region", nor yet again of "the Greater Brussels area", the respective composition of which is fixed by Sections 3, 4 and 6 of the Act of 2nd August 1963. Under Section 7 (1) of the same Act, it forms, together with five other communes in the immediate neighbourhood of the capital of the Kingdom, namely, Drogenbos, Linkebeek, Rhode-St. Genèse, Wemmel and Wezembeek-Oppem, "a separate administrative district" with its own "special status". This status is essentially defined in paragraphs 2 and 3 of Section 7. Paragraph 2 in substance provides that the six communes concerned shall enjoy a bilingual system "in administrative matters", at least in relations between the local services and the public. As regards paragraph 3, which is applicable to "the question of schools", it is worded as follows:
"A. Teaching shall be in Dutch.
The second language may be taught at the primary level to the extent of four hours a week in the second form and eight hours a week in the third and fourth forms.
B. Nursery and primary schooling may be given to children in French if that is their maternal or usual language and if the head of the family resides in one of these communes.
Such schooling may be provided only on the request of 16 heads of families residing within the commune.
The commune to which such an application is made must organise such schooling.
The teaching of the second national language shall be compulsory in primary schools to the extent of four hours a week in the second form and eight hours a week in the third and fourth forms.
C. The teaching of the second language may include exercises of revising the other subjects of the programme".
For the six communes in question, the linguistic control set up by Chapter V of the Act of 30th July 1963 is supplemented by that exercised by the Government commissioner, Vice-Governor of the province of Brabant (Section 7 (1) and (5) of the Act of 2nd August 1963).
2. Arguments presented by the Applicants before or through the Commission
<LI value=16>The Applicants from Kraainem (Application No 1677/62) consider that this legislation violates Article 2 of the Protocol (P1-2) and Articles 8 and 14 (art. 8, art. 14) of the Convention. In their view, "the Brussels urban area" constitutes "a single indivisible entity". The Act of 30th July 1963 (Sections 4 and 5) and the Act of 2nd August 1963 (Sections 3, 6 and 7), however, provide "at least three distinct" systems: that for Greater Brussels, that for the six communes mentioned above, including Kraainem, and that of the other "surrounding" communes, including Alsemberg and Beersel, which still belong to the Dutch language region. Such a system reflects a wish "to throttle the facts": anxious to ensure the "Flemish reconquest" of the "outlying communes where the Brussels overspill has gone", the public authorities have confined the capital "within iron bounds", all the more rigid as the Act of 24th July 1961 has suppressed the linguistic part of the population census.
"Although relatively better" than that of Alsemberg and Beersel, the status of Kraainem represents the "height of absurdity" for it aims at the "protection" of a French-speaking majority, not a minority. This protection, moreover, is still highly insufficient; it merely provides "facilities of little value", wrongly described as "large concessions". First, Section 7 (3) (B) of the Act of 2nd August 1963 concerns only nursery and primary education; the secondary and technical schools at Wemmel, Wezembeek-Oppem and Rhode-St. Genèse follow the Flemish unilingual regime, as would those which would be opened at Kraainem, Drogenbos and Linkebeek. Even in the sphere of nursery and primary education, Section 7 (3) (B) is not satisfactory: it adopts the criterion of the maternal or usual language, which does not fully ensure freedom of choice for the parents and the severity of which is increased by a strict linguistic control. Moreover, local authorities often "drag their feet" in the opening of French classes in the six communes. Further still, Article 7 (3) (B) requires, for those classes, the teaching of Dutch for four hours a week in the second form at the primary level and eight hours in the third and fourth forms; "teaching of the second language" thus "takes up more time" than that of the first language, "since only six hours of French" are "foreseen in Belgian primary school curricula". This situation is the more "extraordinary" as teaching of French in the Dutch classes at Kraainem is optional (Section 7 (3) (A) of the Act of 2nd August 1963). In short, the Belgian Parliament is seeking to make the children "comply" with "the demands of the ground". Compelled to respect "certain acquired rights which are strikingly obvious and of great importance", it tolerates them only "provisionally" in order to "do away with them as soon as possible". In the final analysis, the French classes in Kraainem are nothing but "instruments of depersonalisation", "intensive transmutation classes". Accordingly the Applicants refuse to send their children to them; to benefit from "a decent education in French", the latter make "long and expensive daily journeys to one of the 19 communes of Brussels", at the cost of "disruption in their private and family life" and in that of their parents.
3. Arguments presented before the Court by the Belgian Government and by the Commission
<LI value=17>Before the Commission, the Belgian Government maintained that the linguistic status in education of Kraainem infringes none of the three Articles (P1-2, art. 8, art. 14) invoked. While its principal argument was that the Articles were totally inapplicable (cf. supra), it presented several subsidiary arguments. It observed in substance, that the linguistic control does not operate with the arbitrary strictness alleged by the Applicants, that the French classes at Kraainem in no way constitute instruments of depersonalisation and that the Belgian Parliament is certainly not seeking the "Flemish reconquest" of the environs of Brussels.
Before the Court, the Belgian Government spent little time on this question; it referred expressly to the opinion of the majority of the Commission.
<LI value=18>The Commission, for its part, considers that the "special status" defined in Section 7 (3) of the Act of 2nd August 1963 does not conflict with the requirements of the Convention or the Protocol. It confirmed before the Court the opinion expressed by it on this question in its Report.
Being of the opinion that the Applications "should be declared ill-founded" in so far as they are based on Article 2 of the Protocol (P1-2) (cf. supra) the Commission does not consider it to be necessary to examine the "particular circumstances which distinguish the Applications from one another", or the differences "between the 1932 legislation and that of 1963". It points out, nevertheless, that by virtue of the Act of 2nd August 1963, "the Kraainem Applicants may obtain education in French for their children, at least at the primary level".
As far as concerns Article 8 (art. 8) of the Convention, the Applicants have no complaint to make of any "State interference in private and family life" since secondary education does not have to be taken into account in this respect (cf. supra) and since Kraainem has, at this very moment, primary school classes in French. They give "no details" on the question of the "reticence" for which they reproach the local authorities and, above all, do not assert that "their children cannot receive a French education on the spot". Moreover, "in principle" they have "nothing to fear" from linguistic control if they are all truly French-speaking; in the event of "one of them" considering himself "the victim of a wrong decision by the language inspectorate, domestic remedies are open to him". The complaint based on the intensive teaching of Dutch in the French schools at Kraainem is also unjustified: the Commission finds it "natural that a bilingual State such as Belgium should take steps, especially in bilingual areas, to ensure that its inhabitants know the country's two languages"; "at the most one might", according to the Commission, "find it surprising that, in the Dutch schools" in Kraainem, "the teaching of French is optional". The obligation to learn "the second language of the country" is not an "attack" on the "pupils personality and private life": "general education is given in French" and parents in most cases have "the means to ensure that their children acquire a good knowledge of their maternal language". "In any event", the Applicants have not "informed the Commission of any case in which there is no such possibility".
The Commission finally examines the question as to whether, on the point under consideration, there is a violation of Article 14 of the Convention, in conjunction with Article 2 of the Protocol (art. 14+P1-2) or Article 8 (art. 14+8) of the Convention. Certain rules relating to the status in issue seem to it to reflect "the Belgian State's desire to ensure the maintenance of the Dutch-language", indeed to assimilate "minorities, against their wish, into the sphere of the regional language". Eleven members of the Commission, however, believe that this does not result in any discrimination incompatible with Article 14 (art. 14). Seven of them consider it to be "quite proper that the Act should enforce the teaching of Dutch in communes in which the Dutch language is spoken by a large proportion of the inhabitants, sometimes a majority". As regards the absence, at Kraainem, of "official or subsidised French education at secondary level", this does not seem to these members of the Commission to be incompatible with Article 14 (art. 14): "if it is agreed that the State's refusal to establish or subsidise primary education in French" is not of a discriminatory nature, the same conclusion applies, a fortiori, "to secondary education". It is true that the State draws a distinction, in this respect, in a way detrimental to French-speaking pupils; this, however, represents "a favour granted by the law to Flemish-speaking inhabitants" and "not a hardship interfering with enjoyment by the French-speaking population of the rights guaranteed by the Convention". "According to the information received by the Commission", moreover, there is Dutch secondary education only in three of the communes referred to in Section 7 (1) of the Act of 2nd August 1963, namely, Wemmel, Wezembeek-Oppem and Rhode-St. Genèse. Dutch-speaking parents living at Kraainem must also therefore send their children "to schools at some distance" if they wish them to receive secondary education; this situation does not in any way depend "on the language question". Four other members of the Commission likewise conclude, on different grounds, that the system in the six communes on the outskirts of Brussels is not incompatible with the Convention. On the other hand, one member does not accept this conclusion. He is substantially of the opinion that the Kraainem Applicants remain "although to a much lesser extent than before 1963", "victims of discrimination incompatible with Article 14 (art. 14) of the Convention". The Commission draws the attention of the Court to these different individual opinions.
4. Decision of the Court
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