FIRST SECTION

DECISION

Application no. 68320/13 Alenka ŠPOLJAR and DJE ČJI VRTIĆ PČ ELICE against Croatia

The European Court of Human Rights (First Section), sitting on 22 September 2020 as a Chamber composed of:

Krzysztof Wojtyczek, President, Ksenija Turković, Linos-Alexandre Sicilianos, Aleš Pejchal, Pere Pastor Vilanova, Jovan Ilievski, Raffaele Sabato, judges, and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 21 October 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The first applicant, Ms Alenka Špoljar, is a Croatian national who was born in 1967 and lives in Rijeka. The second applicant, Dječji Vrtić Pčelice, is a childcare institution established in accordance with Croatian law in 1991. They were represented before the Court by Ms G. Banić, a lawyer practising in Zagreb.

2 . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The first applicant owned a private kindergarten called Maslačak, which ceased to operate on 31 December 1997. The second applicant was a privately owned kindergarten established in 1991 in accordance with the relevant domestic law. On 3 October 1997 the second applicant changed its structure, but continued to provide childcare as an institution.

5 . At the material time, the relevant Act on Social Care for Preschool Children ( Zakon o dru š tvenoj brizi o djeci pred š kolske dobi ) provided that privately owned institutions authorised to work in the area of childcare came under the supervision of local authorities (see paragraph 18 below); in the applicants ’ case, this was the city of Bakar.

6 . According to the interpretation of the relevant law by the competent ministry at the material time, local authorities were authorised to grant subsidies to privately owned kindergartens, just as they could grant subsidies to those which were publicly owned. The Bakar local authorities availed themselves of this opportunity.

7 . It would appear that in 1992 and 1993 the applicants on several occasions contacted the local authorities seeking payment of equal subsidies to private kindergartens as those that were being paid to publicly owned kindergartens.

8 . By a letter dated 3 December 1992 the Rijeka Social Fund of Social Activities ( Dru š tveni fond dru š tvenih djelatnosti ; hereinafter “the Fund”) informed the private kindergartens in its area of its decision on the amount of subsidies to be awarded. In so far as relevant, the said letter read as follows:

“Among other things, the [said] criteria [set out in the relevant legislation] determine that the total value of a certain programme is composed of an amount subsidised by the [Fund] and that paid by the parents. The calculation of the parents ’ participation is done on the basis of the price of the service established by the Fund, and the calculation, billing and collection of payment of their participation is done by the [respective] kindergarten, whereas the amounts charged to parents are to be registered with the Fund on a monthly basis.

The amount of subsidies by the Fund depends on the possible participation of the parents. The price is not the same for all parents bearing in mind the social structure of each user, in that the price may vary in accordance with the social criteria in respect of parents with lower income, single mothers, large families and children of [deceased war veterans]. Due to this, the amount of subsidies by the Fund is higher with regard to publicly owned kindergartens than that in respect of private ones.

As regards private kindergartens, we have decided to determine the amount of subsidies on the basis of the prices established for publicly owned kindergartens, whereby the Fund shall participate in the amount of 50% of that price and the remaining 50% shall be borne by the end users.

It is important to note that in the initial stages of negotiations, private kindergartens in Rijeka insisted not to have the prices they charged to parents limited. The [Fund] accepted that proposal; however, now they request to freely form their prices for the parents and to receive subsidies from the Fund identical to publicly owned kindergartens, which is inacceptable.”

9 . By a letter dated 14 December 1994 addressed to all private kindergartens in its territory, the City of Rijeka wrote:

“Out of the planned price of 200 German marks (DEM) per month and per child [for public kindergartens], the City of Rijeka participates in the amount of DEM 150 whereas the remaining DEM 50 is paid by the parents...

As regards private kindergartens, participation of the City of Rijeka in the amount of 50%, i.e. DEM 75 per child is foreseen. The remaining costs are to be covered by the participation of the parents, the amount of which is independently established by the private kindergartens.”

10 . On 13 December 1994 the applicants instituted civil proceedings before the Rijeka Municipal Court ( Op ć inski sud u Rijeci ), complaining that they were receiving lower amounts of subsidies from the Bakar local authorities in comparison to publicly owned kindergartens, and that such a practice was discriminatory.

11 . In the course of the proceedings, the applicants specified their claim, seeking compensation for the difference in subsidy payments for the period between 1993 and 31 December 1997 (the first applicant), and between 1993 and 31 August 1998 (the second applicant).

12 . During the proceedings, the Rijeka Municipal Court commissioned three expert reports on the question of differences in subsidy payments by the Bakar Municipality to privately and publicly owned kindergartens. The final expert report, which was ultimately accepted by the Rijeka Municipal Court, showed that in 1997 and 1998 public kindergartens had been receiving subsidies in the amount of 170 German marks (DEM – approximately 85 euros (EUR)), whereas the applicants had been receiving DEM 120 (approximately EUR 60) per child per month.

13 . On 7 May 2007 the Rijeka Municipal Court allowed the applicants ’ civil action and ordered the Bakar Municipality to pay them the difference in the subsidy payments. It held that, because privately and publicly owned kindergartens performed the same social function, there had been no justification for the difference in treatment as regards the grant of their subsidies. The first-instance court accepted the applicants ’ assertion that prices they had charged to parents during the relevant period had been equal to prices of publicly owned kindergartens, even though the applicants had no longer been able to provide the relevant billing information after the lapse of the ten-year time-limit for keeping such documents.

14 . The Bakar Municipality challenged that judgment before the Po ž ega County Court ( Ž upanijski sud u Po ž egi ), which on 9 January 2009 upheld the findings in the first-instance judgment.

15 . The Bakar Municipality then lodged an appeal on points of law ( revizija ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ), which on 27 January 2010 reversed the judgment of the Rijeka County Court, dismissing the applicants ’ civil action as ill-founded. The Supreme Court held that the relevant domestic law did not require local authorities to grant the same amount in subsidies to privately and publicly owned kindergartens. The relevant part of that judgment reads as follows:

“As regards the reason for the appeal on points of law concerning the incorrect application of the relevant law, it is correctly pointed out in the appeal on points of law that section 75 of the ... Act does not have the meaning attributed to it by the courts, because neither this provision nor sections 3 or 4 of the same Act provide that local government units are required to give the same amount of subsidies to kindergartens under different types of ownership.

Section 75 of that Act, on which [the applicants] base their claim, provides that persons who care for, educate and protect children through their independent personal work acquire income under the conditions whereby such income is acquired by public kindergartens.

Moreover, [amendments to the Act] ... provide that financial resources for public needs in the area of social care for preschool children are the responsibility of the administrative authority with competence for county education.

Those provisions indicate that financial resources for public needs in the area of social care for preschool children which have been budgeted for by municipalities and towns are dispensed by administrative bodies with competence for county education.

That provision [section 75] indicates that persons who care for, educate and protect children through [their] independent personal work generate income from the same sources used to fund publicly owned preschool institutions, but this does not mean that those financial resources must be distributed equally [between publicly owned and] privately owned kindergartens.”

16 . The applicants challenged those findings before the Constitutional Court ( Ustavni sud Republike Hrvatske ), which on 25 April 2013 dismissed their constitutional complaint as ill-founded, upholding the judgment of the Supreme Court. In particular, it held that nothing in the relevant domestic law prevented local authorities from granting higher subsidies to publicly owned kindergartens, and that there had therefore been no discrimination against the applicants.

17 . The Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/1990 with subsequent amendments) provides as follows:

Article 14

“All persons in the Republic of Croatia shall enjoy all rights and freedoms regardless of their race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth, education, social or other status.

All persons shall be equal before the law.”

Article 48

“The right of property shall be guaranteed.

Property entails obligations. Holders of proprietary rights and users [of property] shall contribute to the common good.”

18 . Relevant provisions of the Act on Social Care for Preschool Children ( Zakon o dru Å¡ tvenoj brizi o djeci pred Å¡ kolske dobi , Offici al Gazette no. 18/91), in force until 7 February 1997, read as follows:

Section 1

“Social care for preschool children forms part of the special social care for children ensuring the fulfilment and enjoyment of rights guaranteed under the law ... Social care for children is a specific social interest.”

Section 3

“The financial resources necessary to meet the demand and interest of the population in the field of social care for preschool children, when those correspond to the needs and interests of society, shall be provided for in the State budget and the budgets of municipalities and cities.”

Section 75

“Persons caring for, educating and protecting children through [their] independent personal work shall acquire income under the same conditions as those applicable to the acquisition of funds by publicly owned preschool institutions.”

19 . Relevant provisions of the Act on Preschool Education ( Zakon on predskolskom odgoju i naobrazbi , Official Gazette no. 10/97), which came into force on 7 February 1997, read as follows:

Establishment of a kindergarten

Section 7

“(1) A kindergarten may be established by:

1. the Republic of Croatia,

2. local government and self-government entities,

3. religious communities,

4. other domestic legal and natural persons ...”

Financing of kindergartens

Section 48

“1. The founder of the kindergarten shall ensure that there are the resources necessary for establishing and operating the kindergarten.

2. Kindergartens shall provide resources through the sale of services on the market and through other sources determined by law.

...

4. Kindergartens established by local government and self-government entities shall charge the parents using their services in accordance with the standards determined by the representative bodies of those entities. ...”

Section 49

“1. The standards applied to providing the resources necessary to fulfil public needs in the field of preschool education in the are as of local government and self ‑ government units shall be determined by the representative body of the county or the City of Zagreb.

2. At a minimum, the local government and self-government units shall allocate for preschool education the amount determined by the representative body of the county or the City of Zagreb, in accordance with its standards ...”

20 . In its professional explanation on the status of private kindergartens dated 1 April 1994, the Ministry of Culture and Education informed the relevant Rijeka local authorities as follows:

“... You have sent to this Ministry a request for a professional explanation concerning financing of private kindergartens...

In reply, ... we inform you as follows.

1. Care for, education and protection of preschool children can be provided for by citizens through their personal work in form of occupation, in line with sections 60-78 of the Act on Social Care for Preschool Children...

The said Act expressly provides that persons caring for, educating and protecting children through independent personal work (section 75) acquire income under the same conditions as those applicable to the acquisition of funds by publicly owned preschool institutions...

In accordance with the foregoing, the financial means for fulfilling the needs and interests of citizens, in the area of care, education and protection of preschool children through personal work, are to be ensured in the same manner as provided for institutions owned by the local authorities...

Consequently, all formal requirements are fulfilled for citizens who work in care, education and protection of children through their personal work in form of their profession to acquire means from budgets of local authorities...

However, bearing in mind the provisions of the [amendments to] the Act on Social Care for Preschool Children..., it is imperative to establish that such personal work of citizens in form of profession in the field of care, education and protection of preschool children is a public need, which has been previously established as such by the representative body of the relevant [local authority] and which has set aside the financial means in their budget for that purpose...

There is thus no automatic financing of personal work of citizens who work in the field of care, education and protection of preschool children; the right to subsidies from budgets of local authorities may be granted only to those citizens whose work has been established as a public need... and financial means for that need have been ensured in the budgets of the local authorities...

...

4. We are of the opinion that the representative body of the local authority may terminate financing of a private kindergarten... if it does not establish its work as a public need and does not set aside the means for that public need it its budget...

5. Should financing from the budget of the local authority for personal work of a particular citizen in form of profession in the field of care, education and protection of preschool children be terminated, that citizen may, without any legal limitations, continue to provide services and acquire means for his or her work...”

21 . In judgment Usoz-163/2012-6 the High Administrative Court of the Republic of Croatia ( Visoki upravni sud Republike Hrvatske ) was called upon to examine a claim lodged by a private kindergarten complaining that, in comparison to public kindergartens, it had been discriminated against with regard to how it had been awarded subsidies and how much it had been awarded. In particular, the claimant in that case lodged a petition for review of the lawfulness of a decision adopted by the local authorities of the city of K. stating that the city was to finance 50% of the market price of a private kindergarten, capped at 50% of the price of a public kindergarten, only in the event that the capacity of a public kindergarten was exceeded. In finding the local authorities ’ decision lawful, the High Administrative Court held as follows:

“In the assessment of the lawfulness of the challenged provision of the decision, the court does not find any unlawfulness in relation to the Act on Preschool Education ... as the basic substantive regulation on the financing of kindergartens. Namely, pursuant to section 48(1) of that Act, the founder of the kindergarten is expected to ensure that there are the resources necessary for establishing and operating the kindergarten, and pursuant to paragraph 2 of the same provision, to provide [those] resources through the sale of services on the market and through other source[s] determined by law.

Accordingly, as the basic rule on the financing of kindergartens, the law imposes an obligation on [a kindergarten ’ s] founder to provide the resources for the operation of the kindergarten.

Since preschool education forms part of the education system, as well as the childcare system, and is meant to fulfil public needs, pursuant to section 49(1) of the above Act, the standards of fulfilment in respect of public needs in relation to preschool education as regards local and regional self-government units shall be established by the representative body of the county ..., which will, in line with those standards and pursuant to paragraph 3 of the same section, also decide on the use of those resources. Bearing that in mind, pursuant to the above-cited section 48(1), the local government entity is obliged to primarily ensure that there are the financial resources for kindergartens it founded.

No provision of that Act imposes an obligation on the local government entity to ensure the financing of privately owned kindergartens. On the contrary, section 48(4) of the above Act requires the representative body of the entity to determine standards in accordance with which the kindergarten it has founded [will] charge parents using the services.

Therefore, in the court ’ s opinion, the representative body of the local government entity did not violate that Act by prescribing an option to subsidise kindergartens which had not been founded by city of K.

Prescribing that subsidies may be paid to private kindergartens only if the capacity of a kindergarten established by the city of K. is exceeded is also lawful, because, as stated above, pursuant to section 48(1) of the Act, the city is primarily required to provide the resources for establishing and operating kindergartens which it has founded. The prescribed criterion is therefore reasonably acceptable, because only if the capacity of a kindergarten founded by the city of K. with a view to fulfilling public needs in the area of preschool education is exceeded, so that [the city] cannot fulfil public needs, is it acceptable that [the city] ensure accommodation for children in another kindergarten, under the same conditions which they would have had in a [publicly owned kindergarten.]”

22 . The Rules on enrolment into Kindergarten “Rijeka” ( Pravilnik o upisu djece u Dječji vrtić „Rijeka“ , adopted on 26 March 2019 by the Governing board of that kindergarten), sets out that enrolment is done on the basis of a yearly competition, on the basis of a grading system and in line with priorities set out in a decision by the competent authority. The Decision on the manner of establishing priority lists at enrolment in Kindergarten “Rijeka” ( Odluka o načinu ostvarivanja prednosti pri upisu djece u Dječji vrtić „Rijeka“ , Official Gazette of the Primorsko-goranska County no. 14/13 ), adopted by the Rijeka City Council on 28 March 2013, sets out the rules on determining priorities to be given to children seeking enrolment in the publicly owned kindergarten “Rijeka”. The Criteria for charging of services from parents-end users of the Kindergarten “Rijeka” ( Mjerila za naplatu usluga od roditelja-korisnika usluga Dje č jeg vrti ć a “ Rijeka ” , Official Gazette of the City of Rijeka no. 7/15 ), adopted by the Rijeka City Council on 9 July 2015, determines the scales according to which parents residing in Rijeka, depending on their monthly income and number of dependent children, participate in the full monthly price of kindergarten programmes.

COMPLAINT

23 . The applicants complained under Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention that, as private entrepreneurs, they had been discriminated against by the local authorities with regard to the grant of subsidies, in comparison to publicly owned kindergartens.

THE LAW

24 . The applicants relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, which read as follows:

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

25 . The Government invited the Court to declare the applicants ’ complaint incompatible ratione temporis , stressing that, to a large extent, the facts on which their complaints were based had occurred before 5 November 1997, when the Convention had come into force in respect of Croatia.

26 . The Government further claimed that the applicants had not had a “possession” within the meaning of Article 1 of Protocol No. 1.as they had had no legitimate expectation within the meaning of Article 1 of Protocol No. 1 to receive the same amount of subsidies as public kindergartens. In fact, the domestic courts had established that there was no obligation on local self-government entities to provide any subsidies to privately owned kindergartens, and in any event such kindergartens were not entitled to request a specific amount of subsidies.

27 . The Government explained that the State provided parents with social care for their children through the system and facilities provided and maintained by the State. Local governments determined their needs in terms of preschool education, the standards for providing the resources required to meet those needs, and the financial resources for those services. Kindergartens in Croatia could also be established by other legal or natural persons, as in accordance with the domestic law, the financing of all kindergartens remained the obligation of their founder.

28 . The Government further maintained that privately and publicly owned kindergartens were not in a relevantly similar or analogous position. Private kindergartens provided preschool education in order to satisfy their own economic interests, whereas the State provided preschool facilities as part of their duty towards parents with regard to social care for their children; it had no economic interest in the matter, nor did it make any profit. In reality, public kindergartens were purely an expense for the community concerned. Furthermore, private kindergartens were not limited as regards the prices they might charge for their services, whereas publicly owned kindergartens could not charge full price for their services, but had to take into account the social status and income of parents.

29 . Lastly, relying on the jurisprudence of the High Administrative Court (see paragraph 21 above), the Government stressed that the State had no obligation under domestic law to subsidise privately owned kindergartens. Any such subsidies were only provided if and to the extent that the need for preschool facilities exceeded the capacities of publicly run kindergartens.

30 . The applicants disagreed with the Government. They maintained that, as private entrepreneurs, they had been discriminated against in comparison to public kindergartens. They explained that the actual price of kindergarten care per child had been determined by the competent local authority, and that price had to be the same for all kindergartens, public or private. The contention that private kindergartens were able to increase their price as they saw fit was therefore untenable.

31 . The Court considers that it is not necessary to address the Government ’ s objections ratione temporis or ratione materiae , given that this complaint is in any event inadmissible for the following reasons.

32 . In order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see, amongst many authorities, Fábián v. Hungary [GC] , no. 78117/13, § 113, 5 September 2017 and the cases cited therein). In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Clift v. the United Kingdom , no. 7205/07, § 66, 13 July 2010).

33 . The Court refers to its previous cases under Article 14 in conjunction with Article 1 of Protocol No. 1, in which it examined whether the applicants had been in a relevantly similar or analogous position to the group of persons they compared themselves to. In Carson and Others (cited above), the applicants were pensioners who lived outside the United Kingdom and who complained about the lack of index-linking in respect of their pensions, a situation which was different for pensioners who remained living in the United Kingdom or in a country with a reciprocal agreement with the United Kingdom on the uprating of pensions. The Court found, inter alia , that owing to a range of economic and social variables, the applicants had not been in a relevantly similar position to residents of the United Kingdom or of countries which were party to such agreements. More recently, in Fábián v. Hungary (cited above), the Court concluded that the applicant, as a pensioner employed by the civil service whose employment, remuneration and social benefits were dependent on the State budget, had not demonstrated that he was in a relevantly similar situation to pensioners employed in the private sector.

34 . However, not every difference in treatment will amount to a violation of Article 14. Firstly, the Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010, and Eweida and Others v. the United Kingdom , nos. 48420/10 and 3 others, § 86, ECHR 2013 (extracts)). Secondly, a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts); Topčić ‑ Rosenberg v. Croatia , no. 19391/11, § 36, 14 November 2013; and Weller v. Hungary , no. 44399/05, § 27, 31 March 2009).

35 . The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin will vary according to the circumstances, the subject matter and the background (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011).

36 . A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see Fábián , cited above, § 115). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Carson and Others , cited above, § 61). Any measures taken on such grounds, including the reduction of the amount of pension normally payable to the qualifying population, must nevertheless be implemented in a non-discriminatory manner and comply with the requirements of proportionality (see Lakićević and Others v. Montenegro and Serbia , nos. 27458/06 and 3 others, § 59, 13 December 2011, and Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005). In any case, irrespective of the scope of the State ’ s margin of appreciation, the final decision as to the observance of the Convention ’ s requirements rests with the Court (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012 (extracts)).

37 . Lastly, as regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see Kham tokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 65, 24 January 2017; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007 ‑ IV).

38 . The Court will firstly examine whether private and public kindergartens may be considered as being in an analogous or relevantly similar situation.

40 . In that regard, the Court notes at the outset that public kindergartens in Croatia operate under strict rules as regards their functioning and enrolment of children. In the absence of detailed information on enrolment or functioning of public kindergartens at the relevant time, the Court notes for example that, pursuant to the current procedure (see paragraph 22 above), enrolment in public kindergartens in the City of Rijeka is done on the basis of a public competition, in which parents ’ applications for the enrolment of their children are graded on the basis of criteria previously established by the local authorities. Parents wishing to enrol their children must fulfil certain conditions, and their monthly income has to be taken into account when establishing priority lists and the price of attendance for each child. The applicants have not argued, nor does the domestic legislation as submitted by the parties indicate, that an equivalent limitation had not been applicable to publicly owned kindergartens at the time of the facts of the present case. Nor have the applicants claimed that private kindergartens had been subject to the same limitations. On the contrary, it would appear that enrolment in private kindergartens was freely regulated by each such establishment.

41 . The applicants and the Government disagreed on whether private kindergartens were allowed to form prices for their services freely or whether they were subject to the same price which the local authorities periodically established for public kindergartens within their territory. While the Court observes that, given the passage of time and the fact that the applicants were no longer under the legal obligation to keep the relevant billing information, it proved impossible for the domestic courts to establish with certainty whether in practice the applicants had charged higher prices than public kindergartens (see paragraph 13 above), it notes that nothing in the relevant legislation indicates that private kindergartens had been prevented from freely forming their prices. Moreover, it transpires from the documents submitted by the parties that at the relevant time private kindergartens insisted on forming their prices freely, which had been accepted by the local authorities (see paragraphs 8 and 9 above). In such circumstances, the Court cannot accept the applicants ’ contention that private kindergartens had been limited to charging the same prices as publicly owned kindergartens.

42 . As regards the specific context of the financing of kindergartens, the Court notes that section 48 of the Act on Preschool Education imposes an obligation on the founder of each kindergarten to finance his or her establishment (see paragraph 19 above). The Government explained that public kindergartens were aimed at satisfying the needs of parents in terms of social care for their preschool children. They also stressed that public kindergartens never generated any profit, nor were they expected to transfer any money back to the local government financing them. On the other hand, private kindergartens were founded as an economic activity, among other things, aimed at generating some sort of income for its founders .

43 . Furthermore, as the Government explained, private kindergartens only had the right to subsidies in areas where there were insufficient public kindergartens to satisfy the needs of the local population and where running of private kindergartens had been recognised as a public need (see paragraphs 20 and 21 above). However, even in those areas, it was primarily for the founder of each kindergarten to provide for its financing. In other words, the amount of subsidies granted to private and public entities did not necessarily have to be the same (see the High Administrative Court ’ s judgment cited at paragraph 21 above).

44 . In view of the above, notably the differences between public and private kindergartens as regards structure, rules on enrolment and financing in particular, the Court is not convinced that the two groups can be considered to be in an analogous or relevantly similar position. Public kindergartens, as establishments of local governments, are primarily aimed at satisfying a community ’ s needs in respect of preschool education, whereas private kindergartens are privately run establishments which, while also providing preschool education, are oriented towards making a certain income for their services.

45 . Bearing in mind the foregoing, in particular the purpose of the measure which makes the distinction between the financing of private and public kindergartens, the Court is of the opinion that the applicants have not shown that they were in a relevantly similar or analogous position to public kindergartens.

46 . Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 October 2020 .

Renata Degener Krzysztof Wojtyczek Deputy Registrar President