COLLECTIVE DISSENTING OPINION OF JUDGES HOLMBÄCK, RODENBOURG, ROSS, WIARDA AND MAST

(Point I of the operative provisions of the judgment)

(Translation)

The legal and administrative measures governing access to the education given in French in the six communes "with special facilities", are not incompatible with the first sentence of Article 2 of the Protocol read in conjunction with Article 14 (art. 14+P1-2) of the Convention. This opinion follows from a logical application of the principles formulated by the Court, in particular, in the general part of the judgment (interpretation adopted by the Court), and in the reasons for the decision reached by it concerning the first question. Those holding the present opinion consider that the reply which the Court, by a majority of one, has given to the second limb of the fifth question is difficult to reconcile with a rational interpretation of these principles. The general part of the judgment states the following principles:

"... Article 14 (art. 14) (of the Convention) does not forbid every difference in treatment in the exercise of the rights and freedoms recognised ... One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; however certain legal inequalities tend only to correct factual inequalities". The judgment holds that the effect of Article 14 read in conjunction with Article 2 (art. 14+P1-2) is not to guarantee to children or their parents the right to education conducted in the language of their choice since, where the Contracting Parties wished to secure to everyone within their jurisdiction, specific rights in the field of the use of a language or of its understanding, they made this clear in the text, as in Articles 5 (2) and 6 (3) (a) (art. 5-2, art. 6-3-a) of the Convention. The judgment then states, in its general part, when the distinction in treatment is contrary to Article 14 (art. 14).

It lays down the following rules:

(1) The distinction must pursue a legitimate aim.

(2) The distinction may not lack an "objective justification".

(3) Article 14 (art. 14) is violated when it "is clearly established" that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.

(4) The existence of this reasonable relationship must be appreciated in the knowledge of the "legal and factual features which characterise the life of the society in the State which is to answer for the measure in dispute".

(5) The Court cannot, in the exercise of this power of appreciation, "assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention". It follows from this that "the national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention" and that "review by the Court concerns only the conformity of these measures with the requirements of the Convention".

Those holding the dissenting opinion here stated do not contest the well- foundedness of these five principles, but they consider that there is a discrepancy between the legal premises established by the Court and the reply given to the second limb of the fifth question.

They consider:

I. That the distinction in treatment attacked pursues a legitimate aim;

II. That the measures attacked are based on objective features which justify them;

III. That the absence of a reasonable relationship of proportionality between the means employed and the aim sought to be realised is not established and certainly is not clearly established; that with regard to the reply given to the second limb of the fifth question, the judgment has not sufficiently taken account of the rule according to which the national authorities, who are in the first place those who must appreciate the requirements implied by the factual and legal features in issue, remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention.

I. T he distinction in treatment attacked pursues a legitimate aim

In excluding from the benefit of education given in French the children whose parents live in the Dutch unilingual region near the communes "with special facilities", the legislator was anxious to ensure the linguistic homogeneity of the two communities which would, in his view, be threatened by an extension of an exceptional system beyond the territory of the six communes. The conception of the Acts of 30th July and 2nd August 1963 , which were voted by a very large majority of Fleming, Walloon and Brussels parliamentarians, was that this homogeneity is the very condition of a lasting accord between the communities.

This way of looking at things is open to discussion and was discussed at great length in the Belgian Parliament, but there is no reason to believe that the objective pursued in this case by the laws attacked is contrary to the letter or the spirit of the Convention.

Besides, the Court in its reply to the first question has affirmed that the purpose of the "legal measures which have been attacked ... is to achieve linguistic unity within the two large regions of Belgium in which a large majority of the population speaks only one of the two national languages" and that "in other words (the legislation) tends to prevent, in the Dutch unilingual region, the establishment or maintenance of schools which teach only in French".

The Court holds that "such a measure cannot be considered arbitrary", that "to begin with it is based on the objective element which the region constitutes" and that "it is based on a public interest, namely to ensure that all schools dependent on the State and existing in a unilingual region, conduct their teaching in the language which is essentially that of the region".

II. T he distinction in treatment challenged is based on objective

FEATURES

It may be assumed that the French-speaking persons, to whose cost the balance which a non-discriminatory measure implies is said to have been disturbed, live in communes situated in Dutch unilingual territory adjacent to the communes "with special facilities". Their system is that of all the French-speaking persons living in that part of Belgium .

The alleged lack of objectivity constituting a discrimination is based on an ambiguity in the appreciation of the situation in which they are placed because they live in the Dutch unilingual region near to the commune "with special facilities".

One is moved by the fact that they must, if they wish their children to be educated in French, send them to a school in Brussels which is further from their home than the French-language school in the commune "with special facilities" near to where they live.

To deduce from this that the imposition upon them of this difficulty or inconvenience amounts to a discrimination, is to misunderstand the significance of that objective factor which is the frontier which separates the communes with special facilities from the Dutch unilingual communes.

This frontier is an objective and necessary factor, inherent in the nature of the relationship between the system of common law and that which constitutes an exception to it.

Any derogation from a system of common law, whatever it may be, has by its very nature effects which may seem arbitrary but which are only apparently so. The minor has full capacity only on the day on which he attains his majority; he does not have it the day before. It would however be ill-considered to condemn as arbitrary, for this reason, the law which fixes the age of majority at 21 years. The same reasoning holds good in the case referred to the Court by the second limb of the fifth question.

The Belgian legislator was not obliged to accord to the six communes "with special facilities", situated in unilingual territory, an exceptional system establishing certain modifications of a practical nature to the principle of territoriality. This he has done but, in so doing, he expressly affirmed that in the six communes, he did not intend to renounce the principle of territoriality. Section 7 (3) of the Act of 2nd August 1963, which is conclusive on this point, says, in its preliminary provisions, that as regards the question of schools in the six communes the language of instruction shall be Dutch.

In a similar spirit, Section 7 (4) of the Act of 2nd August 1963 (paragraph relating to the administrative system in general of the communes "with special facilities"), provides as follows: "In their relations with the local services set up in the six communes with which this Article is concerned, the central services, the regional services on which the said local services depend, as well as the local and regional services of the Dutch language region shall employ the Dutch language".

The reply given to the second limb of the fifth question does not mention the text of paragraph 4 and does not accord to paragraph 3 its proper scope. This scope is considerable since it concerns, essentially, the linguistic system relating to education. It is true, as the judgment holds, that the legislator has derogated from the principle of territoriality with regard to the six communes; it is also true that the six communes constitute "a distinct administrative district" and that they are allotted a "special status"; likewise it is true, under the terms of Section 7 (2), that the local services set up in these communes draft both in Dutch and in French, the communications and forms to be sent to the public. But paragraphs 3 and 4 cited above imply that as regards education just as much as administration, the linguistic system of the common law of the localities in question, is the Dutch system. Thus the premises, from which the reply given to the second limb of the fifth question follows, are all the more open to question as the scope of paragraphs 3 and 4 is conclusive.

The legislator who, it must be reiterated, may grant derogations from the principle of territoriality but who is not bound to do so, has, regard being had to the Convention, the right to determine the precise limits within which he intends to confine the extent of the derogation granted. In this case, he has decided that these limits should be those, which are eminently objective, of the territory of the six communes.

A system which derogates from the common law is by its very nature limited in its effects. That those who do not fulfil the objective conditions required (because they live outside the territory provided for) are in certain respects treated differently from those who do fulfil them (because they do live in that territory), in no way therefore constitutes a discrimination.

Article 14 (art. 14) is furthermore not violated because the residence condition only applies with respect to one of the two linguistic groups.

It is true that "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", but this difference in treatment is not arbitrary. It is justified on objective grounds. Firstly, by the legitimate aim which the legislator has pursued, to wit, to ensure the linguistic homogeneity of the communities.

Furthermore, and above all, it is justified because the Dutch-language schools are, in the six communes, the common law schools and because in the two regions, the characteristic of common law schools is that they are open to all.

Lastly, in establishing in Flemish territory French-language schools which depend on an exceptional system, the legislator has left unchanged the common law system of Dutch-language schools in Flemish territory.

Thus, the difference in treatment which is wrongly denounced as a discrimination is the inevitable consequence of the fact that the legislator - as was his right - intended to limit the effects of the exception which he permitted to the principle of territoriality only to the children of families whose head lives in the communes "with special facilities", and the limits to common law were permitted on the basis of this paramount objective factor, which the residence of the head of the family constitutes.

Consequently it is evident that only the conditions of access to French-language schools allowed in these communes are of importance. That Dutch-speaking children from the Dutch unilingual region are granted access to the Dutch-language classes in the six communes is irrelevant, for the attendance of Dutch-speaking children at schools which provide an education in Dutch does not affect the extent of the exception made to the principle that Dutch is, under common law, the language of instruction in the communes "with special facilities".

Besides, the theoretical character of the factors on which the alleged discrimination is based may be pointed out.

No reason of a linguistic nature can impel Dutch-speaking parents living in the Dutch-language part of the country, or French-speaking parents living in the French part of the country, to send their children to Dutch or French language schools in the six communes since they find the school of the linguistic system of their choice on the spot.

As for the Dutch-speaking parents living in the communes under the French system near to the linguistic frontier, the access which their children have to the Dutch-language schools in the six communes, poses no question of discrimination since they are only claiming to use the common law educational system and not, like the French-speaking parents living in the Dutch part of the country, the advantage of an exceptional system.

It must therefore be concluded that the distinction in treatment attacked is in no way discriminatory.

III. T he applications must, as regards the second limb of the fifth question, be rejected by the application of the principles governing the theory of the proportionality, the appreciation of the factual and legal features and the subsidiary character of the Court ' s mission

In that part of the judgment devoted to the general interpretation adopted by the Court, it is stated as a principle that Article 14 (art. 14) of the Convention is violated only when it is clearly established that no relationship of proportionality exists between the means employed and the aim sought to be realised. It would not therefore be enough - supposing that such were the position - to be confronted with a marginal case, to conclude that there is a violation of human rights in the case of the Applicants. The differentiation in treatment is not discriminatory and it has not in any way been established that the relationship of proportionality has been disregarded. The common law legislation which governs all the communes in the Dutch-language region applies to French-speaking persons resident in the Dutch unilingual communes adjacent to the six communes, and in its reply to the first question the Court stated why this legislation is contrary neither to Article 2 of the Protocol (P1-2), nor to Article 8 (art. 8) of the Convention, taken in isolation or in conjunction with Article 14 (art. 14+P1-2, art. 14+8).

The difficulties invoked by the Applicants concern the distance from the parents ' place of residence of French-language schools which, unlike the schools in the six communes, are open to French-speaking children in the Dutch unilingual region.

It is a fact that these difficulties are clearly less for parents who, like the Applicants, live in the localities belonging to the Dutch unilingual system adjacent to the communes "with special facilities" of the Brussels agglomeration, than the difficulties caused to French-speaking parents who, in Dutch unilingual territory, live further or may live much further from the nearest French-language school open to their children.

Now, the Court has found that as regards these last-mentioned parents, "the measures adopted in this matter by the Belgian legislature are not so disproportionate to the requirements of the public interest which is being pursued as to constitute 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".

Even more so, the principle of proportionality has not been violated with respect to the Applicants who live in the localities adjacent to the communes with special facilities.

To consider, for the reasons which have been refuted under II above, that those objective limits imposed by the Belgian legislator on the exception which he has allowed to the principle of territoriality are arbitrary, amounts to contesting his right to decide, regard being had to the factual and legal features characterising the present situation in Belgium, the scope of the derogation which - without being bound so to do - he has considered himself able to make from a more severe common law system, a system which the Court has recognised as not being contrary to the Convention. In so doing the Court has lost "sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention".

This is why, for all the reasons stated above, in the opinion of those holding this dissenting opinion, the Applications should have been rejected as regards the second limb of the fifth question.