4.3. Education – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Under EU law, protection from discrimination in access to education was originally developed in the context of the free movement of persons under Article 12 of Regulation 1612/68, particularly directed at the children of workers. Article 14 of the EU Charter of Fundamental Rights guarantees the right to education and to access continuing and vocational training. The CJEU case law relating to education concerns in particular equal access to educational institutions in another Member State and equal access to education funding.

Example: In Commission v. Austria,[340] students who wanted to pursue their university studies at an Austrian university, and possessed a secondary education diploma from a Member State other than Austria, had to produce that diploma and show that they met the specific entrance requirements for the relevant course of study in the country which had issued the diploma. The CJEU found that the access conditions to a University education for holders of Austrian and holders of non-Austrian diplomas were different, and that this placed holders of non-Austrian diplomas at a disadvantage and constituted indirect discrimination.

Example: In the case of Casagrande v. Landeshauptstadt München, the complainant was the daughter of an Italian national who was working in Germany.[341] The German authorities paid a monthly maintenance grant to schoolchildren who were of school age, with the aim to facilitate ‘educational attendance’. The CJEU held that any general measures intended to facilitate the educational attendance fell within the scope of education.

Example: In Laurence Prinz v. Region Hannover and Philipp Seeberger v. Studentenwerk Heidelberg,[342] the CJEU found residency as a sole condition for the award of an education grant for studies in another Member State as disproportionate.

Example: In Mohamed Ali Ben Alaya v. Bundesrepublik Deutschland,[343] a Tunisian national applied several times to German universities to study maths (in conjunction with a preparatory language course) and was accepted. However, the German authorities refused to grant him a residence permit, arguing that there were doubts as to his motivation for wishing to study in Germany, that he possessed a weak knowledge of German and that there was in fact no connection between his proposed course of study and his intended career. The CJEU found that if third-country national students satisfy the conditions for admission, in such circumstances, they do have a right of entry.

Under the ECHR, Article 2 of Protocol No. 1 to the ECHR contains a freestanding right to education.[344] Accordingly, the ECtHR regards complaints of discrimination in the context of education as falling within the ambit of Article 14.[345]

Example: In Horváth and Kiss v. Hungary,[346] Roma children were placed in schools for children with disabilities. The ECtHR found that this was discriminatory treatment of members of a disadvantaged group. The state had failed to establish an adequate arrangement to permit Roma children to follow the programme in ordinary schools.[347]

Example: In Ponomaryovi v. Bulgaria,[348] the applicants were two Russian schoolchildren lawfully living with their mother in Bulgaria, but without a permanent residence permit. As such, they had been required to pay fees to pursue their secondary education unlike Bulgarian nationals and aliens with permanent residence permits who were dispensed from paying. The ECtHR found that the applicants’ treatment was discriminatory, because they were required to pay school fees exclusively because of their nationality and immigration status. The national authorities had not advanced any reason justifying the difference in treatment and the ECtHR concluded that there had been a violation of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1.

The ECtHR has examined cases of discrimination in relation to the provision of reasonable accommodation for persons with disabilities.

Example: In Çam v. Turkey,[349] the ECtHR found that the refusal of a music academy to enrol a student on the grounds of her visual disability, despite her having passed a competitive entrance examination, was in breach of Article 14 in conjunction with Article 2 of Protocol No. 1. The ECtHR

stressed that Article 14 of the Convention had to be read in the light of the European Social Charter and the UN Convention on the Rights of Persons with Disabilities, as regards the reasonable accommodation which persons with disabilities were entitled to expect. The ECtHR emphasised that the competent national authorities had made no effort to identify the applicant’s needs and had failed to explain how or why her blindness could impede her access to musical education. Further, the music academy had not tried to adjust its educational approach in order to make it accessible to blind students.

Under the ESC, Article 15 (1) provides for effective equal access of children and adults with disabilities to education and vocational training. Additionally, Article 17 guarantees the right of all children to education in its both paragraphs.

According to the ECSR, equal access to education must be ensured for all children. In this respect, particular attention should be paid to vulnerable groups such as children from minorities, children seeking asylum, refugee children, children in hospital, children in care, pregnant teenagers, teenage mothers, children deprived of their liberty, etc. Children belonging to these groups must be integrated into mainstream educational facilities and ordinary educational schemes. Where necessary, special measures should be taken to ensure equal access to education for these children.[350]

The ECSR stressed, in the context of health education, that the principle of non- discrimination covered not only the way the education was provided but also the content of educational materials. Thus, in that regard, the principle of non- discrimination had two aims: children could not be subject to discrimination in accessing such education and the education could not be used as a tool for reinforcing demeaning stereotypes and perpetuating forms of prejudice against certain groups.[351]

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340. CJEU, C-147/03, Commission of the European Communities v. Republic of Austria, 7 July 2005.

341. CJEU, Case -9/74, Donato Casagrande v. Landeshauptstadt München, 3 July 1974.

342. CJEU, Joined cases C-523/11 and C-585/11, Laurence Prinz v. Region Hannover and Philipp Seeberger v. Studentenwerk Heidelberg, 18 July 2013.

343. CJEU, C-491/13, Mohamed Ali Ben Alaya v. Bundesrepublik Deutschland, 10 September 2014.

344. See CoE, ECtHR (2017), Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights – Right to education.

345. Discrimination on the grounds of education under the ECHR is discussed in the case of D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007 in Section 2.2.1 and in the case of Oršuš and Others v. Croatia [GC], No. 15766/03, 16 March 2010 in Section 6.3.

346. ECtHR, Horváth and Kiss v. Hungary, No. 11146/11, 29 January 2013.

347. See also ECtHR, Lavida and Others v. Greece, No. 7973/10, 30 May 2013.

348. ECtHR, Ponomaryovi v. Bulgaria, No. 5335/05, 21 June 2011.

349. ECtHR, Çam v. Turkey, No. 51500/08, 23 February 2016.

350. ECSR, Mental Disability Advocacy Centre (MDAC) v. Bulgaria, Complaint No. 41/2007, decision on the merits of 3 June 2008, para. 34.

351. ECSR, International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Croatia, Complaint No. 45/2007, 30 March 2009, para. 48.

Contents

4. Selected areas of protection

4.1. Employment

4.2. Access to welfare and social security

4.3. Education

4.4. Access to supply of goods and services, including housing

4.5. Access to justice

4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage

4.7. Political participation: freedom of expression, assembly and association, and free elections

4.8. Criminal law matters

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