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Case:
Rec., 64 Case Institution Notre- Dame du Kreisker
Date:
06 December 1907
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Rec., 64
Case Institution Notre- Dame du Kreisker

6 December 1907

On the admissibility of the application:

Given that the letter from the subprefect of Morlaix to the director of the institution Notre-Dame du Kreisker merely invited him when submitting documentation in support of its application for funding from the commune of Saint-Pol-de-Léon to follow the requirements of the circular from the Minister of National Education, and contains no decision susceptible of being put forward to the litigation section of the Conseil d’État, the request put forward by the applicant cannot be accepted;
But given that in his circular of 11 January 1950, in purported application ofthe provisions of article 69 of the Law of 15 March 1850 regarding applicationsfor funding addressed to departments or communes by institutions of secondaryeducation in the private sector the Minister did not merely interpret the textsthen in force, but laid down in the provisions now under attack new rules regardingthe preparation of dossiers submitted with a view to such funding; that it followsthat to this extent the circular has the nature of a regulation, which in consequencethe institution Notre-Dame du Kreisker is entitled to submit to the Conseil d’État;

On the legality of the circular of 11 January 1950:

Given that it is laid down by article 69 of the Law of 15 March 1850 that communes, departments and the state may provide institutions of secondary education in the private sector with funding of up to ten per cent of their annual expenses, provided that the academic councils have been asked “to give their preliminary opinion on the fitness of such funding”;

Given that under the circular of 11 January 1950 departments and communes which are minded to accord a request for funding solicited by an institution of secondary education in the private sector must first be submitted to the Conseil supérieur de l’éducation nationale; given that it is to the general and municipal councils that the power to give a final ruling on such requests is accorded, the Minister for National Education may not lawfully subject the exercise of such power to an opinion not provided for in law; that while article 5 of the Law of 15 March 1850 and article 4 of the Law of 19 March 1873 made such consultation mandatory, both these articles were abrogated by the Law of 27 February 1880 on the Conseil supérieur de l’instruction publique, which did not in article 5 repeat the provision regarding “assistance and encouragement to be given to independent institutions of secondary education”; that article 11 of the Law of 18 May 1946 on the Conseil supérieur de l’éducation nationale is equally silent on this point; that, this being so, the applicant institution is entitled to claim that the measure in the circular under attack is invalid for excès de pouvoir;

Given that it is for the Minister of National Education, who appoints the academic councils, to specify what information these councils need in order to form a proper opinion on the fitness of the funding solicited; that in consequence it was not an excès de pouvoir for the Minister to lay down what documents must be produced by the institutions of secondary education under the rubrics attacked as unlawful, apart from rubric no. 14, to be discussed shortly; that it is equally for the rector to see that the dossiers be drawn up before the next meeting of the academic council; but that since once the academic council has given its opinion on each matter the procedure must be concluded by a decision of the local assembly, it would be unlawful for the rector to obstruct this normal procedure by failing to submit a dossier to the academic council; that therefore the applicant institution is entitled to maintain that the provisions of the circular are invalid for excès de pouvoir to the extent that they subject the acceptance of a submission to a requirement that it provide certain information and confer on the rector the power to decline to submit dossiers which he believes to be unacceptable for failure to do so;

Given that there is no provision in the Law of 15 March 1850 which subjects a private institution of secondary education funded under article 69 to control of the teaching it provides or the management of its finances; given that when a general or municipal council decides, in the exercise of its powers under article 69, to grant funding to such an establishment it is only such council that may make its grant in a particular case conditional on the institution’s accepting such control; that consequently the applicant institution is entitled to maintain that the Minister of National Education has gone beyond his powers in issuing a circular which requires applications for funding to contain an undertaking by its director to allow the authorised inspectors of universities to supervise its management and teaching…

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