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European School Discrimination 01

Discrimination against parents and their children regarding Lux II ; LEGAL ARGUMENTS
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Téléphone : (+352) 262 562 1
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Luxembourg • Germany
Case Palais de Justice N° 177
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Member firms of the above associations practice independently
and not in a relationship for the joint practice of law.



Luxembourg, 21th May 2012

o/ref: FM2012158 FM/ DT


LEGAL ARGUMENTS

Discrimination against parents and their children regarding Lux II

The current document contains some legal basis to challenge the arrangements made by the vertical split around the two European schools.

I. A differentiated treatment tantamount to discrimination

Discrimination is forbidden by a number of European sources, as a general principle of European Union Law. The first one is the Treaty of Lisbon i.e. the Treaty on the Functioning of the European Union (TFEU).

Article 18 of the Treaty prohibits any discrimination on grounds of nationality. Article 19 entails a prohibition of discrimination based on other grounds and indicates that « without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.

The Charter of Fundamental Rights of the European Union, which has been included in the Treaty of Lisbon, contains as well several articles on discrimination.

According to article 21, “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”, whereas §2 of this article prohibits
any discrimination on grounds of nationality.

Article 24 of the Charter further implies that “Children shall have the right to such protection and care as is necessary for their well-being” and in §(2), that “in all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration”.

The well-being of the child is further included in the UN Convention on the Rights of the Child. Its Article 2(1) states that “parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

According to Article 19(1) states that “Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”.

Finally Article 31(1) states that “Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts”.

The definition of discrimination has been established by the Court of Justice of the European Union in many decisions concerning gender discrimination, followed by discrimination based on other grounds. Based on this case-law and on current article 19 of the TFEU, secondary EU law now provides for the same definitions in two directives 2000/43/EC (“Race and ethnic origin”) and 2000/78/EC.

The latter one is the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation: it contains the definitions of direct and indirect discrimination.

“Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on the grounds of religion or belief, disability, age or sexual orientation”, whereas

“Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons”,

Unless (exceptions):
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary,
(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

Staff regulations of officials of the European Communities also contain a prohibition of discrimination in Article 1d:
1. “In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited”.

6. “While respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy. Such objectives may in particular justify stipulating a mandatory retirement age and a minimum age for drawing a retirement pension”.

Finally, the European Convention on Human Rights also prohibits any discrimination first in article 14, which states that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

Protocol 12 to the Convention contains a distinctive, general prohibition of discrimination, by stating that “the enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” and that “no one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1”.

II. Grounds of discrimination: language, nationality, ethnic origin and property

The above mentioned legal sources prohibit discrimination based on several grounds. They also protect the right of the child to an enjoyable life. In particular, the grounds of discrimination here applicable are language and nationality or ethnic origin. The rights of the child and the burden put on the parents differ from one to nationality to another, from persons of one cultural/national/ethnic background to another.

They also entail discrimination based on property/wealth, as lower paid workers, who have to live in lower-cost residential areas that are further away from the plateau were assigned to LUX II.

While all the parents and their children are in the same situation (or at least in a fully comparable situation), they are treated differently without any objective reason. In such case, the principle of equality of treatment is being breached.


s. François MOYSE

Created by: admin last modification: Saturday 09 of June, 2012 [14:43:09 UTC] by admin


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