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Case:
A.J.D.A. 1999, 420 Case Confédération nationale des groupes autonomes de l’enseignement public
Date:
05 March 1999
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

On the legality of the decree under attack:

Given that article 35 of the Law of Orientation in Education of 10 July 1989 provides that “national policy for education in the years 1989-1994 is laid out in the report annexed to the present Law”, which states that its objectives include increasing the number of teachers and introducing allowances for teaching, adding that “in any revision of the stipends of the teachers in the institution to which recipients of these allowances have been assigned there is to be taken into account, under conditions to be determined by decree in the Conseil d’État, the periods during which these allowances were paid. ”

Given that the decree of the Conseil d’État of 1 September 1989 did provide that students of merit who undertook to enter the competitions for entry to certain educational institutions and to do a certain amount of instruction in the meanwhile should, if resources permitted, receive teaching allowances; that the decree of 25 September 1991 which is under attack modified the terms of employment of established professors, lecturers and school teachers by introducing for those who had received the teaching allowance a seniority bonus equal to one-third of the period during which they had received it;

Given that there is no relevant difference between successful candidates according to whether they had or had not received these teaching allowances, at least in so far as the former in performing the required instruction were not part of the public educational system, the decree of 25 September 1991 in introducing a bonus restricted to those who had received the new allowances breached the principle that those who have been appointed to an educational unit must be treated equally; that such discrimination cannot be justified by the general interest in increasing the number of teachers, especially in view of the fact that the teaching allowances were payable only if resources were available;

Given that the report by reference to which the Minister of Education seeks to support the decree does not have the normative force of the Law of 10 July 1989 to which it is annexed, as indeed is clear from the debates in Parliament preceding its enactment, and therefore cannot be treated as giving a legal basis for the provisions of the regulation which are objected to;

Given that it follows that the Confédération nationale des groupes autonomes de l’enseignement public is entitled to demand the annulment of the decree of 25 September 1991;

DECIDES
1. That the decree of 25 September 1991 (no. 91-984) fixing the seniority bonus to be paid to such members of teaching institutions as received the teaching allowances provided for in the decree of 1 September 1989 (no. 89-608) is annulled….

 

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