VEREIN GEMEINSAM LERNEN v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23419/94

                      by VEREIN GEMEINSAM LERNEN

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 30 December 1993

by VEREIN GEMEINSAM LERNEN against Austria and registered on

7 February 1994 under file No. 23419/94;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an association which runs a school, the

"Schülerschule des Vereins Gemeinsam Lernen" in Vienna.  It is

represented before the Commission by Mr. T. Höhne, a lawyer in Vienna.

The facts of the case, as submitted by the applicant association's

representative, may be summarised as follows.

The particular circumstances of the case

     The applicant association's school has been recognised as

complying with the criteria of Section 14 of the Private Schools Act

1962 (Privatschulgesetz "the 1962 Act") - initially in 1985 for classes

3, 4 and 5, and then in 1990 for classes 5 to 9.  The effect of such

recognition was that the school was entitled to issue certificates of

attainment to pupils which had the force of law, that the school was

a recognised examination centre, that student teachers were permitted

to train at the school, and that the general rules concerning public

schools applied.  The Articles of Association of the school have been

accepted by the Ministry of Education, Arts and Sport (Ministerium für

Unterricht, Kunst und Sport), and when parents send their children to

the school, their duty to send children to school is met.

     The association applied for a subsidy to cover staff costs,

pursuant to Section 21 of the 1962 Act.  The application was refused

by the Ministry on 26 June 1990.  The association made a constitutional

complaint in which it alleged, inter alia, discrimination in that it

was required to show the presence of each of the grounds set out in

Section 21, whereas subsidies were made to church schools without any

enquiry as to the Section 21 grounds.

     The Constitutional Court (Verfassungsgerichtshof) declined to

deal with the complaint on 24 September 1990.  It found that, on the

basis of its own case-law and that of the Convention organs, the

application had no adequate prospect of success.  It noted that the

matter was not excluded from the jurisdiction of the Administrative

Court (Verwaltungsgerichtshof) and remitted the case to that court.

     The Administrative Court dismissed the complaint on

20 September 1993.  It noted that the discussion between the parties

concerned the conditions in Sub-sub-sections (a) and (d) of Section

21 (1) of the 1962 Act, but decided the case on the basis of Sub-sub-

section (a).  It found that the existence of "need" turned not merely

on questions of supply and demand for the private school in question,

but on the extent to which State schools were burdened.  It did not

have to decide on the authority's interpretation of "need", namely that

"need" could only be said to exist where there were insufficient places

for pupils at State schools, because on the facts of the present case

it could not be said that there was a "need" in the community for the

school: only some 100 families were involved in developing alternative

forms of schooling in Vienna, and the school - which had 20 to 30

pupils in five classes - had to refuse just 10 to 20 pupils per year

for lack of space.  That there was interest in the community in the

school was not sufficient to bring the association within the ambit of

Section 21 (1) (a).  The Administrative Court's decision was served on

8 November 1993.

Relevant domestic law and practice

     Section 11 of the Private Schools Act 1962 (Privatschulgesetz

"the 1962 Act") provides that a school may only use the name of certain

types of school with the consent of the appropriate education

authority.  The conditions for such consent are that the school must

have substantially the same methods and educational content as the

equivalent State schools, that teachers are properly qualified, and

that it is very likely that the school will continue for some years.

The latter condition is assumed by operation of law in the case of

church schools.

     Section 14 of the 1962 Act divides private schools into two

categories: schools which fall under Section 11 ("Section 11 schools"),

and schools which do not. Section 11 schools are "recognised" (es wird

das Öffentlichkeitsrecht verliehen) if they offer instruction

appropriate to the Austrian school system, and if their teaching is as

successful as that at an equivalent State school.  Non-Section 11

schools are recognised if, in addition, their structures, syllabuses

and equipment, and the qualifications of their teachers, comply with

certain requirements, and if the school has shown that its teaching is

successful.  The criteria of Section 14 are deemed to have been met by

certain bodies.

     Further provisions of the 1962 Act read, so far as relevant, as

follows.

(translation)

     Section 17

     "(1)  Recognised churches and religious societies shall be

     granted subsidies for staff expenditure for religious private

     schools which have been recognised as public schools in

     accordance with the following provisions.

     (2)   Religious private schools are schools which are maintained

     by recognised churches and religious societies ... ".

     Section 21

     "(1)  The State may grant subsidies, in accordance with the

     Federal Budget Act and subject to means, to private schools which

     are recognised as public schools but which do not fall under

     Section 17 if:

     a)    the school corresponds to a need of the community;

     b)    the school does not operate with the intention of drawing

           financial benefit;

     c)    entry conditions for pupils are the same as those applied

           for public State schools;

     d)    the number of pupils per class does not fall below the

           average number of pupils per class of a public State school

           of the same type and in the same area.

     (2)   In the case of private primary and secondary schools, a

     need within the meaning of Section 21 (1) (a) does not exist if

     it would lead to the lowering of the organisational capacity of

     a public State primary or secondary school in the catchment area

     of the private school.

     (3)   Subsidies for the schools referred to at Section 21 (1)

     shall be granted in accordance with Section 19 (1). Before

     seconding a teacher as a subsidy in kind, the governing body of

     the school shall be heard."

     Section 27 (1) of the 1962 Act provides that private schools

which received subsidies before the Act would continue to receive them

under the Act.  Section 27 (2) expressly includes one private, non-

church school, the "Theresianische Akademie" in Vienna, within the

ambit of Section 21 (3).

     The applicant association has submitted a copy of the official

School Statistics for 1988/89 from which it appears that some 5% of

secondary schools (Hauptschulen) are privately run, and that over 90%

of these schools are run by the Roman Catholic church.  Some 20% of

higher secondary schools (allgemeinbildende höhere Schulen) are

private, and almost 90% of those schools are run by the Roman Catholic

Church.  Private higher secondary schools provide the education of a

little over 13% of children of the relevant age in Austria.

COMPLAINTS

     The applicant association alleges that, by requiring private

schools such as its own to comply with the criteria of Section 21 of

the 1962 Act, the State has violated Article 2 of Protocol No. 1 to the

Convention. It argues that the State has agreed to make a particular

level of provision for private schooling in that it provides for

subsidies to cover expenditure on staff in church schools as a matter

of course, and that that is the level which should be ensured

throughout the private sector.

     Under Article 2 of Protocol No. 1 taken together with Article 14

of the Convention, the applicant association claims that there is no

justification for treating church schools - which are private -

differently from its own school.  It points out that there is one

school, the "Theresianische Akademie" in Vienna, which is a private,

non-church school but does not have to comply with the requirements of

Seciton 21 of the 1962 Act by operation of Section 27 of that Act.

     The association points to the changes in society in recent years

which have extended pluralism to the extent that it is now not

justifiable - if it ever was - to treat church schools differently from

any other private school when subsidies are being allocated.

THE LAW

     The applicant association complains, under Article 2 of Protocol

No. 1 (P1-2) to the Convention, taken alone and read in conjunction

with Article 14 (P1-2+14) of the Convention, of the way in which State

subsidies are allocated to private schools. It considers that

non-religious establishments are discriminated against.

     Article 2 of Protocol No. 1 (P1-2) to the Convention reads as

follows:

     "No person shall be denied the right to education.  In the

     exercise of any functions which it assumes in relation to

     education and to teaching, the State shall respect the right of

     parents to ensure such education and teaching in conformity with

     their own religious and philosophical convictions."

     Article 14 (Art. 14) of the Convention reads as follows:

     "The enjoyment of the rights and freedoms set forth in this

     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."

     The Commission recalls that Article 2 of Protocol No. 1

(P1-2) to the Convention guarantees the right to start and run a

private school (cf. Jordebo and others v. Sweden, No. 11533/85,

Dec. 6.3.87, D.R. 51, p. 128 with further references).

     The applicant association has been able to set up the

"Schülerschule", and the school has been widely recognised by the State

in that it has been accepted as meeting the criteria of Section 14 of

the 1962 Act.  Given that there is no positive obligation on the State

under Article 2 of Protocol No. 1 (P1-2) to subsidise any particular

form of education (No. 7782/77, Dec. 2.5.78, D.R. 14, p. 179, again

with further references), the Commission considers that the substantive

requirements of Article 2 of Protocol No. 1 (P1-2) have been met in the

present case.

     However, "... a measure which in itself is in conformity with the

requirements of the article ensuring the right or freedom in question

may ... infringe this article when read in conjunction with Article 14

(Art. 14) for the reason that it is of a discriminatory nature" (Eur.

Court H.R., Belgian Linguistic Judgment of 23 July 1968, Series A no.

6, p. 33, referred to in No. 7782/82, cited above).  Accordingly,

although Article 2 of Protocol No. 1 (P1-2) does not give rise to an

obligation to subsidise any particular type of education, Article 14

(Art. 14) nevertheless requires that any subsidies which are made

should not be made in a discriminatory fashion.

     Article 14 (Art. 14) prohibits treating differently, without any

objective and reasonable justification, persons in "relevantly" similar

situations (cf. Eur. Court H.R., Fredin judgment of 18 February 1991,

Series A no. 192, p. 19, para. 60).

     Church schools are a widespread phenomenon in the Austrian

education system.  Unlike the applicant association's school, they

cater for large numbers of pupils and have done so for a considerable

time.

     Furthermore, the Administrative Court in the present case found

that there was interest in Vienna for the applicant association's

school, but that that interest was not sufficient to amount to "need"

within the meaning of Section 21 of the 1962 Act.  In so finding it

defined "need" by reference not just to supply and demand (that is, by

reference to the question whether there were parents who wanted such

a school, whether somebody was prepared to offer it, and whether the

supply exceeded the demand), but to the question of "need" from the

stand-point of the State, and the burden on it.  The Administrative

Court did not decide the case on the basis that a given private school

might reduce the numbers in local schools below the level at which the

schools were viable, as it decided the case on the basis of Section 21

(1) (a) rather than Section 21 (2) of the 1962 Act.  The Administrative

Court in substance found that "need" is a matter to be assessed by

reference to the criterion of who would educate the children if the

private school in question did not, and whether that schooling would

impose an additional burden on the State.

     The Commission draws from this the conclusion that to treat

church schools (under Section 17 of the 1962 Act) differently from the

applicant association's school (which falls under under Section 21) is

a matter which can be justified in terms of Article 14 (Art. 14) of the

Convention because the church schools are so widespread that if the

educational services which they provide fell to be met by the State,

there would be a considerable burden on the State as it would have to

make up the shortfall in schools.  The applicant association has not

pointed to any instances of new church schools of a similar size to the

association's school receiving subsidies.

     In connection with the point made by the applicant association

that the "Theresianische Akademie" is not required to comply with

Section 21 of the 1962 Act, the Commission notes that the applicant

association did not raise this matter in its constitutional complaint,

but that in any event the "Theresianische Akadamie" had been in

existence for many years when the 1962 Act entered into force, and it

cannot therefore be compared with the applicant association's school.

     The examination of this complaint accordingly discloses no

appearance of a violation of Article 2 of Protocol No. 1 (P1-2) to the

Convention, either taken alone or read in conjunction with Article 14

(P1-2+14) of the Convention.

     It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)

 

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