APPLICATION/REQUÉTE N° 10476/83 W. and K.L. v/SWEDEN W. et K .L. c/SUHD E DECISION oi 11 Decenuber 1985 on the adrnist ;ibiliiy of the application DÉCISION du 11 décembre 1985 sur la recevabilité de aarequête Arücle 2 of the First Protoeol : Stares are not obliged to subsidise a particula rform of educction in order to respect the religious and philosophical convictions of parem.s : it is suffia'ent that they resoect the said convictiôns within the existimg and developing system of education . States comply with aheir obligations under this provision by permitring the estcablislsment of private schools. -Refusal qF a subsidy, even in the form of bn eda,ation allowance to pupils not to the school, does not comravene the provision . .4rticle 14 o.f the Convention in conjonetimn with Art'icle 2 of the First Protbcol : Difference in treatment between the pupils at a private school who receive aa education allowance and those, also at a private school, who db not receive one, based on traditiomal autonomy of the local authorities in the sub,oect. Such difference not without objective aad reasonable justification .Artiele2 dni Protacole additioninef : Pour respecter les: convictions religieusés e t philosophiques des parents les Etas n'ont pas l'obligatian de subventionner une lôrme pa.rticulière d'enseignement',` il suffit qu'ils respec'ent lesdites convictions eians 1'enseignement tel qu'il existe et se développe. En autorisant la création d' une école privée les Etats s acquident de leur obligation au regard de ceae disposition . Le r fus d'une subvention, même aous fornte d'une prestation scciale srolaire destinée à l'élève et non à i'école, n'est pas contraire à cettedisposiiion. 143 Article 14 de la Convention, combiné avec l'article 2 du Protocole additionnel : La différence de traitement entre les élèves d'une école privée recevant des prestations sociales scolaires et ceux d'une école privée qui n'en reçoiventpas, fondée sur une autonomie traditionnelle des pouvoirs locaux en la matière, n'est pas dépourvue de justifecation objective et raisonnable . TIIE FACTS (français : voir p. 150) The facts of the case as submitted by the applicants may be summarised as follows. Theapplicants are Mr. W .L., an engineer born in 1941, and his wife Mrs . K.L., a florist born in 1948. They are Swedish nationals and reside in Norrk&ping . Their children, H ., born in 1969, and P ., born in 1973, attend a private school, the "Rudolf Steinerskolan i Norrkdping" . The applicants are represented by Mr. Hans Liljeson, a lawyer resident at Maisons-Lafitte, France. The 1962 School Act (skollagen) requires that every municipality takes the responsibility for the education in a basic school (grundskola) of children subject to compulsory education . Children may however also attend a private school ("enskild skola", which since 1983 has been known as a°fristâende skola") authorised by the local school board (skolstyrelsen), a political body whose members are appointed by the municipal assembly . There are 35 private schools in Sweden in 16 of the 279 municipalities . Authorisation to run a private school is granted under Section 34 of the Schoo l Act "if the character, extent and general direction of the education given in the school corresponds essentially with that given in the public sector school and the private school is run by a person with the necessary qualifications to teach and manage the school well" . In 1973 a group of parents applied to the Norrkriping municipality for subsidies in order to establish a private school based on the cducational principles developed by Rudolf Steiner (Waldorf system) . The School Board refused the application on the ground that this school would increase segregation in society . The parents renewed their application asking for authorisation in accordance with Section 34 of the School Act. In May 1974 the same school board rejected the application on the ground that the proposed school did not satisfy the teaching requirements . The parents appealed to the County School Board (IÜnsskolndmnden) 144 which rejected the appeal in January 1975, stating that the schocl could not expect to reéeïve State subsidics . Negotiations with the local authorities on the organisation of a class based on the Waldorf method having failed, parents set up their own school (Norrk .bpings Waldor*skola) on 19 August 1975. At the same time a new application for authorisation was lodged. 'Lhe School Board rejected the application without giving grounds and informed parents that their children would be taken to the prirnary school by the police i1'they did not come vcluntatily . The parents' appeal against this decision was rejected by the Ccunty School Board on account of the "uniform social stmeture" of the class and "Ihe isolation of the pupils from the influence of the environme .nt involved in the Waldorf method" . The parents then made an application to the Government . The Government set aside the de,cisions complained of and gave the desired authorisation in 19 1 7. Since 1978, the "Norrk6ping; Waldorfskola" is called "Rudolf Steineiskolan i Norrkliping" (hereinafter called "the Steiner school") . The pupils of the 3teiner school attended by the applicants' children receive schocl social assistance in the form of school meals, health service and educational insnrance . Or26 October 1982 the Steiner schoo] also applied for school social assistance in the form of textbooks and other educational aids and a granr. for management expendilure . This application was rejectecl by the School Board on 16 February 1983 . The applicants did not appeal, considering they had no chance of success . They cite several cases to show that the Supreme Administrative Courl (regeringsrïtten) had regtdarly rejected the appeals in which the persons concerned had complained of the refusal to gi-ant school social assistance. Te.tching in the primary schools is free, as are textbooks, meals, school buses and medical care . 'rhis assistance from the local authorities is called "school social assistance" (skolsocial fôman, hereinafter : SSA). The State makes grants to the local authorities, thus covering about half ttte expenditure of the public sector . 'rhese grants relate, essentially to the teachers' salaries. In Sweden the word grant also covers the SSA. Hoviever, a distinetion must be drawn between the SSA for the pupils and the grants to the schools . With effect from 1921 the Primary Schools (Compulsory Edueation) Act required the local authorities to assist needy parents by supplying textbooks free after a means test. As a result of the 1946 refoLm pupils in all primary schools where ~xlucation is comptilsory receive their textbooks free, without a means test . By virtu e 145 of their independence, local authorities also provided this assistance to pupils in private schools after a means test . Some local authorities do so even without a means test. Free meals supplied by the local authorities were gradually extended without a means test after the 1946 reform . Pupils in private schools received this assistance a ccording to their needs . Gradually, however, a number of local authorities provided this assistance without a means test . SSA thus tends to relieve parents of personal maintenance expenditure . Its object, therefore, has nothing to do with the organisation of schools but is generally to improve the financial situation of families with dependeht children . In Sweden this forms part of the social assistance to families and legal writers generally deal with the question in textbooks on social law. So long as SSA was subject to a means test the parents had to make an application whether their children attended a State or a private school . Now parents whose children attend a private school for which the local authority does not provide SSA may make such an application. If they do not reside in the same municipality as the school, their application is addressed to the local authority in whose municipality they reside. When a joint application is made, as in the instant case, it is for practical reasons addressed to the school secretariat, which passes it on to the local authority concerned if the pupil resides in a different municipality. In 1964 the municipality of Stockholm decided in principle to grant SSA to all authorised private schools . When SSA is granted to private schools it is in fact provided without a means test and thus does not depend on the financial situation of those affected . Local authorities may, however, draw distinctions between the various private schools. If the SSA is paid to the school the latter merely acts as an agent, performing a service similar to that of a business which undertakes the task of paying the taxes or trade union dues of its employees . In this case the school receives the SSA on behalf of the family and assumes responsibility for supplying the childrn with textbooks and meals in the place of the parents . It is not a graut to the schools but to the pupil who is personally entitled to the SSA . If the benefits are not supplied the pupil has a claim against the local authority . This claim is similar to a family allowance or old-age pension which has not been paid . The SSA to which the pupil is entitled is, therefore, not considered as a grant to the school . COMPLAINTS I . The applicants complain of the authorities' refusal to grant their children who are attending the private "Rudolf Steinerskolan i Norrkoping" school social assistance . 146 In choosing !his school for their children they were exercising the right conferred on them by Article 2 of Prctocol No . 1, to ensure their children's edlication in accordance wiih their religious and philosophic.d convictions . However, the choice of this school has resulted in an illegal deprivatioxi of SSA, which is not a grant to the school, but a social ben2fit of an economic natvse due to the family . Tltis action affecting th. parents' financial situation makes it more difficult for üiem to pay the fees due to the privateseF.-ool and thus conslitutes an indirect threat to its very existence . _ The applicani:s therefore, elaim to be the victims of a violation of Article 2 of Protoco;. No. 1. 2 . The applicanis complain of discrimination owing to the fact that their enjoyment of the right guaranteed by Ariicle 2 oi' Protocol No. I is not ensured "without discrimination on any grouncl" . Thus by chocsing this school they have lost the SSA which is given to pupils of all State schools and private schools in tttose municipalides which grant thi.s type of assistance . This amounts to a discrimination between their children and the pupils of State schools or private schoolsrxeivine SSA . The measures complained of may result in discrimination between brothers and sisters attending different schools in the same municipality. This discrimination is due to the facl that loeal authori$es are not obliged to grant SSA to private : schools. The syslem is thus arbitrary . The applicants tberefore complain that they are victims of a violation of Article 14 of the Convention because ihis distinction has no objective and reasonable lustification. The relùsal to grant SSA to their children is also a violation o(the 1960 Unesco Convention relating, to measures against discrimination in the field of education to which Sweden has acceded and which provides for an equal rigltt to SSA for afl children subject to compulsory education in Sweden . Finally the applicants consider Ihat in applying the European Convention on Human Rights account should be taken of similar provisions forbidding discrimination in the Huropean Social Charter and the International Covenant on Economic, Social and Cultural Rights . THE LAW (Extract) I . The applicants, who are parents of childrenattending the Rudolf Steiner school in Norrk6ping, complain that school social assistance (SSA) in the form of textbooks and other educational aids has hot been granted to their ehilclren . They allege a violation of Article 2 of Protocol No . 1 . 147 Article 2 of Protocol No . L reads : "No person shall be denied the right to education . In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of the parents to ensure such education and teaching in conformity with their own religious and philosophical convictions ." The Government submit that the application is inadmissible for failure to exhaust domestic remedies as required by Article 26 of the Convention, since the applicants did not appeal against the decision of the School Board to the Administrative Court of Appeal and the Supreme Administrative Court . The applicants admit that they did not appeal from the decision of 16 February 1983 by which the School Board rejected the application of the Steiner school for financial assistance to the pupils to cover the cost of textbooks and other teaching aids. They consider that in view of the earlier case-law of the Supreme Administrative Court on this question and the fact that the Swedish courts do not directly apply the provisions of international treaties, such as the Unesco Convention against Discrimination in the field of education, an appeal had no chance of success . The Government have replied that the applicants have raised issues which have not previously been determined by the Supreme Administrative Court . Whether the applicants were required under Article 26 to appeal to the administrative courts depends upon the existence or not of an established case-law which would have made such an appeal meaningless . However, the Commission considers that in the instant case the question of the exhaustion of domestic remedies may be left open in view of the fact that the applicants' complaints are in any case inadmissible on other grounds . In the alternative the Government submit that the applicants' complaint falls outside the scope of Article 2 of Protocol No. I or that it is manifestly ill-founded . The Commission recalls the case-law of the European Court of Human Right s to the effect that the right specified in the second sentence of Article 2 of Protocol No. 1 is an adjunct to the fundamental right to education and that this Article must be interpreted as a whole (cf . Eur. Court H.R., Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no . 23, para. 52) . The Court has also found that nothing required the State to organise at its expense or to subsidise education of a specific form or level (cf . Eur Court H .R., Belgian Linguistic judgment of 23 July 1968, Series A no . 6, p. 31). It follows that States have no positive obligation, under the second sentence of Article 2 of Protocol No. 1, to subsidise a particular form of education in order to respect the parents' religious and philosophical convictions . It is sufficient to satisfy their obligations under Article 2 to respect the parents' religious and philosophical convictions within the existing and developing system of education (cf . No . 7782/77, Dec. 2.5 .78, D .R. 14 p. 179). 148 Sirnilar complaints have been examined by the C'ommission in X . v . Sweden INo. 10201/82, Dec. 7.5.84) and Y . v. Sweden (No . 10202/82, Dec . 7.5 .84), which lrave not been published. In these decisions the Commission found that by permittin,g Ihe establishiment of the school in question Sweden had fulfilled its obligation under Article 2 and the refusal to make a grant to the private school concemed was not contrary to the requirements of Article 2 of Protocol No . 1 . In the present case the applicants argue that SSA is not a grant to the school hut assislance to the pupils . The Commission considers that this argument does not afffect the, substance of its rea,oning and its conclusiou in the two above-cited decisions . 'rhe essential point is that Sweden has allowed the Steiaer school to be e:stablisheA. }'n addition, financial contributions to the Steinei schoô!. have been made by the State and the municipality. Article 2 of Protocol No. I neither requires the State to raakr a grant to the school nor to provide financial assistance to the papils . Accordingly, an examination of this complaint by the Cormnission docs not clisclose any appearance of a violation of this provision . 2. The applicants complain of discrimination between their children and pupils at State schools or private schools recciving SSA, and rely on Article 14 of the Con- Nention. 'Phe Goverament subrnit that this aspect of the application is manifestly illfounded . Article 14 of Ihe Convention reads : "The enjoyment of the rights and freedoms set forth in this Convention shall be secured wüfiout discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national miruority, properly, birth or other status . " The Commission recalls the interpreration of this Article by the European Court of Hurnan Rights which in the Belgian linguistic tase express ed its opinion ac follows : 11 . a measure which in itself is in conformity with the reqairements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature." (cf. Eur Court H .R., Belgian Linguistic judginent of 23 July 1968, Series A no . 6, p. 33) .InsofarastheapplicantscomplainofdiscriminationbetweenpupilsinState. schools and pupils in private schools their reasoning is exaetly the aame as they put forward in relation to Article Z of f'rotocol No . I and the reference to Article 14 of the Canvention does not add any new element . There is therefore no appearance of a violatiori of Article 14 combined with this provision (cf . Nus. 10201/82 and No. 10202/82 menGoned above) . 149 In so far as the applicants complain of discrimination between pupils of a private school receiving SSA and pupils of a private school which does not receive this assistance the Commission points out that the decisions involved are those of local authorities and that in Sweden the local authorities have awide measure of selfgovernment and independence in matters falling within their jurisdiction . This situation is founded on a long historical tradition and is also confirmed by various acts of parliament relating in particular to compulsory school education . This legislation is based on the concept that the local authorities are best placed to make decisions (including the necessary budgetary decisions) relating to education in their districts . The difference in treatment which may result from this independence of the local authorities has, in the Commission's opinion, an objective and reasonable basis. It follows that, on this point too, there is no appearance of a violation of Article 14 combined with Article 2 of Protocol No . 1 (cf. the above-mentioned Nos . 10201/82 and 10202/82) . The examination of this complaint by the Commission therefore discloses no appearance of a violation of Article 14 of the Convention combined with Article 2 of Protocol No. 1 .