The
Council of State (Conseil d’État)
on the report of the 4th sub-section of the Legal section
No. 238653-238655-238681-238710-240435- Session of
Complete text of the Decision
Considering 1), under No.
238653, the request registered on
1) to repeal, due to excess of power, the Decree of July 31, 2001 , issued by the Minister of National Education regarding the introduction of a bilingual education system in regional languages, either at “regional language” primary and secondary schools, or within the “regional language” sections of primary and secondary schools;
2) to order the State to pay them an amount of 1,000 € on the basis of Article L.761-1 of the Code of Administrative Justice;
Considering 2), under No. 238655, the request registered on
3) to repeal, due to excess of power, the Circular No. 2001-168 of September 5, 2001, issued by the Minister of National Education, regarding the introduction of a bilingual immersion education system at “regional language” schools or institutions;
4) to order the State to pay them an amount of 1,000 € in pursuance of Article L. 761-1 of the Code of Administrative Justice;
Considering 3), under No. 238681, the request registered on October 3, 2001,
presented by the UNION NATIONALE DES SYNDICATS AUTONOMES (UNSA EDUCATION, the
FEDERATION DES CONSEILS DE PARENTS D’ELEVES DES ECOLES PUBLIQUES (FCPE), the
LIGUE DE L’ENSEIGNEMENT, the SYNDICAT DES ENSEIGNANTS UNSA and the FEDERATION
DES DELEGUES DEPARTAMENTAUX DE L’EDUCATION NATIONALE, asking the Council of
State:
1) to repeal, due to excess of power, the Circular No. 2001-168 of September 5, 2001, regarding the introduction of a bilingual immersion education system at “regional language” schools or institutions, the Decree of July 31, 2001, regarding the introduction of a bilingual education system in regional languages, either at “regional language” primary and secondary schools, or within the “regional language” sections of primary and secondary schools, the Decree No. 2001-733 , which created an academic council of regional languages, and the Minister of National Education’s Decision to sign the Agreement Protocol of May 28, 2001 , allowing under public regulations the Diwan institutions, which carry out a Breton language immersion education system, as well as the said protocol;
2) to order the State to pay them an amount of 20,000 F on the basis of the costs exposed by them and not included in the expenses;
Considering 4), under No. 238710, the request registered on October 4, 2001, at
the Council of State’s legal proceedings office, presented by the NATIONAL
FEDERATION NATIONALE DE L’ENSEIGNEMENT, DE LA CULTURE ET DE LA FORMATION
PROFESSIONELLE FORCE OUVRIERE (FNEC/FP-FO), asking the Council of State to
repeal the introduction of a bilingual education system in regional languages,
either at “regional language” primary and secondary schools, or within the
“regional language” sections of primary and secondary schools;
Considering 5), under No. 240435, the request registered on
1) to repeal, due to excess of power, the Agreement Protocol of May 28, 2001, allowing under public regulations the Diwan institutions, which carry out a Breton language immersion education system, as well as the implicit decision to reject the automatic right of appeal requesting the withdrawal of this protocol;
2) to order the State to pay them an amount of 2,500 € in pursuance of Article L. 761-1 of the Code of Administrative Justice;
Considering the other parts of the files;
Considering the Constitution, especially Article 2;
Considering the European Convention for the Protection of Human Rights and Fundamental Freedoms;
Considering the Education Code;
Considering the Act No.
94-665 of
Considering the Code of Administrative Justice;
Having heard in public session:
- the report issued by Mme Picard, Master of Requests[*] ,
- the observations made by SCP Vier, Barthélemy, barrister of the Diwan association and by SCP Peignot, Garreau, barrister of the UNION NATIONALE DES SYNDICATS AUTONOMES (UNSA) EDUCATION and others,
- the conclusions reached by M. Schwartz, Public Prosecutor;
On the merging:
Considering that the requests registered under No. 238653, 238655, 238681, 238710, and 240435, apparently judge similar questions; that there is reason to merge them in order to issue a single Decision on it;
On the intervention of the Diwan association:
Considering that the Diwan association has an
interest to maintain the prosecuted decisions; that its intervention is
consequently admissible;
On the conclusions
addressed against the Decree of
Considering that, in the terms of Article 34 of the Constitution, by which the law establishes the fundamental principles of education, the creation of an academic council of regional languages does not concern, in regard to this body’s administrative nature and the mission it has been furnished, these principles and it consequently relieves the competence of the regulating power; that, as a consequence, the ground of Prime Minister’s lack of competence cannot but be discarded;
Considering that, in fact, there is no ground to believe that the Higher Council of Education would not have been consulted before the intervention of the prosecuted Decree;
Considering that if the prosecuted Decree mentions among the missions of the academic council of regional languages the fact that “it especially watches over the pedagogical coherence and continuity of bilingual education systems, particularly the one provided by the so-called immersion method”, the reference to this method has no influence on this Decree’s legality, whose object and effect is not to authorise its use;
Considering that all
aforementioned leads to the fact that the applicants are not authorised to apply for a repeal of the Decree of
On the conclusions
addressed against the Decree issued by the Minister of National Education of
Considering that the different parts of the file show no evidence that the Decree of July 31, 2001, on the one side, in its provisions regarding the education system based on the so-called “immersion” method which have been abrogated by the Minister of National Education’s Decree of February 25, 2002 , and, on the other side, the Circular of September 5, 2001, which has been abrogated by Circular No. 12 of March 21, 2002 , would not have had legal effects; that the conclusions addressed against these provisions have thus not been drawn without an object, contrary to what the Minister of National Education sustains;
Considering that in the terms of Article 2 of the Constitution: “The language of the Republic is French”; that by virtue of Article 1 of the Act of August 4, 1994, “the French language (...) is the language of education, work, exchanges and public services”; that in the terms of Article L. 121-1 of the Education Code: “Primary and secondary schools and higher education institutions are in charge to transmit and provide knowledge and working methods (...) This training may comprehend a learning, at all levels, of regional languages and cultures”; that in the terms of Article L. 121-3 of the same code, derived from Article 11 of the Act of August 4, 1994: “The language of education, exams and contests, as well as theses and papers within the public and private education institutions is French, except for justified cases for the needs of education of regional or foreign languages and cultures, or when the teachers are associate teachers or have been invited to come from overseas. / Foreign schools or schools especially open to receive foreign nationality students, as well as institutions providing an international education, are not subject to this obligation”; that in the terms of Article L. 312-11 of the same code: “Teachers are authorised to resort to regional languages at nursery and primary schools, if they can make profit out of it as a teaching method, especially for the study of the French language”;
Concerning the conclusions addressed against the provisions regarding bilingual “immersion” education:
Considering that the prosecuted Decree foresees that within the “regional language influence areas” a bilingual education system based on the so-called immersion method may be established by the regional education authority for every student at “regional language” primary and secondary schools; that in the terms of Article 3 of this Decree, this method “is characterised by the main use of the regional language, not excluding French as education language, and as communication language within the institution”; that Circular of September 5, 2001 specifies that “the regional language is education and everyday language within the school”; that at the nursery school, “class activities and their complementary activities are carried out entirely in this language” and that at the elementary school, “the introduction of French is carried out progressively”; that the same Circular introduces similar pedagogical modalities in the organisation of secondary school classes at “regional language” institutions; that by making the regional language the main education language and the communication language at primary and secondary institutions, and by limiting the education in French, at primary schools, to the learning of the French language and of mathematical notions and, at secondary schools, to two disciplines per grade, the prosecuted provisions of the Decree of July 31, 2001 and of Circular of September 5, 2001, which completes the said Decree, go beyond the learning needs of a regional language and surpass the possibilities of derogation of the obligation to use French as education language, which is foreseen by the provisions in Articles L. 121-3 and L. 312-11 of the Education Code; that, therefore, the applicant trade unions and groups are authorised to demand the repeal of the provisions of the Decree of July 31, 2001, regarding bilingual education using the so-called immersion method as well as the repeal of those of Circular of September 5, 2001;
Concerning the
conclusions addressed against the provisions of the Decree of
Considering that, within the regional language influence areas, the prosecuted Decree establishes a bilingual education using a class schedule on a parity basis which may be established by the regional education authority in the “regional language” sections implemented at secondary schools and institutions; that in the terms of Article 3 of this Decree, “the bilingual education using a class schedule on a parity basis is defined by an education provided half in the regional language and half in French”;
Considering that these provisions, which are restricted to foresee that, within the “regional language” sections, the education is provided half in the regional language and half in French, do not include any rule regarding the distribution of disciplines between education in French and in the regional language and do not allow to ensure that at least a part of the education of these disciplines is provided in French; that these prescriptions allow for possibilities which go beyond the learning needs of a regional language and surpass the possibilities of derogation of the obligation to use French as education language, which is foreseen by the provisions in Articles L. 121-3 and L. 312-11 of the Education Code; that, therefore, the applicants are authorised to demand the repeal of the provisions of Decree of July 31, 2001, regarding education using a class schedule on a parity basis;
On the conclusions addressed against
the Agreement Protocol of
On the dismissal raised by the Minister of National Education:
Considering that the UNION DEPARTAMENTALE CGT-FO DES SYNDICATS DE SALARIES DE LOIRE-ATLANTIQUE as well as the UNION NATIONALE DES SYNDICATS AUTONOMES EDUCATION and others apply for the repeal of the Agreement Protocol, signed on May 28, 2001, by the Minister of National Education and the president of the Diwan association, whose object is to allow under public regulations the institutions managed by the this association, which carry out a Breton language immersion education system; that this protocol defines the so-called “immersion” pedagogical method and its modalities within the primary and secondary education as well as the conditions and modalities for the integration of these institutions and their staff to the public education; that the provisions whose repeal has been applied define the organisation and teaching methods and feature a regulating nature; that consequently, the dismissal raised by the Minister of National Education must be discarded;
Considering that the protocol’s prosecuted provisions foresee the introduction of the so-called “immersion” method, within which “Breton is the language for everyday life, work and communication for all students and staff at an institution”, thus making Breton “the main, but not excluding, education language within public “regional language” schools and institutions which establish the “regional language immersion education” modalities; that by making Breton the main education and communication language at these institutions, these provisions go beyond the learning needs of a regional language and, in consequence, fail to recognise the provisions in Article L.121-3 of the Education Code; that, therefore, the applicant trade unions and groups are authorised to apply for the repeal of this Agreement Protocol, whose stipulations form an indivisible unity, as well as the Minister of National Education’s Decision to sign it and to reject the appeal of abrogation;
On the conclusions of application of Article L. 761-1 of the Code of Administrative Justice:
Considering that the circumstances of the case in question allow for the application of these provisions and for the order which obliges the State to pay the amount of 2,000 € applied by the SYNDICAT NATIONAL DES ENSEIGNEMENTS DU SECOND DEGRE, of 3,000 € applied by the UNION NATIONALE DES SYNDICATS AUTONOMES (UNSA) EDUCATION and others, and of 2,500 € applied by the UNION DEPARTMENTALE CGT-FO DES SYNDICATS DE SALARIES DE LOIRE-ATLANTIQUE, on the basis of the costs exposed by them and not included in the expenses;
DECIDES:
Article 1: The intervention of the Diwan association has been admitted.
Article 2: The Minister of National Education’s Decree of July 31, 2001, the Minister of National Education’s Circular No. 2001-168 of September 5, 2001, the Agreement Protocol of May 28, 2001, allowing under public regulations the Diwan institutions, which carry out a Breton language immersion education system, the Minister of National Education’s Decision to sign this protocol, and the Decision whereof the Minister of National Education has implicitly rejected the claim for abrogation of this protocol presented on July 23, 2001, by the UNION DEPARTMENTALE CGT-FO DES SYNDICATS DE SALARIES DE LOIRE-ATLANTIQUE, have been repealed.
Article 3: The State is ordered to pay 2,000 € to the SYNDICAT NATIONAL DES ENSEIGNEMENTS DU SECOND DEGRE, 3,000 € to the UNION NATIONALE DES SYNDICATS AUTONOMES (UNSA) EDUCATION and others, and 2,500 € to the UNION DEPARTMENTAL CGT FO DES SYNDICATS DE SALARIES DE LOIRE-ATLANTIQUE, in pursuance of Article L. 761-1 of the Code of Administrative Justice.
Article 4: The surplus of the conclusions of request No. 238681 has been rejected.
Article 5: The present Decision shall be notified to the SYNDICAT NATIONAL DES ENSEIGNEMENTS DU SECOND DEGRE, to the UNION NATIONALE DES SYNDICATS AUTONOMES (UNSA) EDUCATION, to the FEDERATION DES CONSEILS DE PARENTS D’ELEVES DES ECOLES PUBLIQUES, to the LIGUE FRANÇAISE DE L’ENSEIGNEMENT ET DE L’EDUCATION PERMANENTE, to the SYNDICAT DES ENSEIGNANTS UNSA, to the FEDERATION DES DELEGUES DEPARTMENTEAUX DE L’EDUCATION NATIONAL, to the FEDERATION NATIONALE DE L’ENSEIGNEMENT, LA CULTURE ET LA FORMATION PROFESSIONELLE FORCE OUVRIERE (FNEC/FP-FO), to the UNION DEPARTEMENTALE CGT FO DE SYNDICATS DE SALARIES DE LOIRE-ATLANTIQUE and to the Minister of Youth, of National Education, and of Research.
________________
Unofficial translation
Source: Mercator