88
"RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES
IN EDUCATION IN BELGIUM" v. BELGIUM (MERITS) JUDGMENT
COLLECTIVE DISSENTING OPINION OF JUDGES HOLMBÄCK, RODENBOURG, ROSS,
WIARDA AND MAST
ill-considered to condemn as arbitrary, for this reason, the law which fixes
the age of majority at 21 years. The same reasoning holds good in the case
referred to the Court by the second limb of the fifth question.
The Belgian legislator was not obliged to accord to the six communes
"with special facilities", situated in unilingual territory, an exceptional
system establishing certain modifications of a practical nature to the
principle of territoriality. This he has done but, in so doing, he expressly
affirmed that in the six communes, he did not intend to renounce the
principle of territoriality. Section 7 (3) of the Act of 2nd August 1963,
which is conclusive on this point, says, in its preliminary provisions, that as
regards the question of schools in the six communes the language of
instruction shall be Dutch.
In a similar spirit, Section 7 (4) of the Act of 2nd August 1963
(paragraph relating to the administrative system in general of the communes
"with special facilities"), provides as follows: "In their relations with the
local services set up in the six communes with which this Article is
concerned, the central services, the regional services on which the said local
services depend, as well as the local and regional services of the Dutch
language region shall employ the Dutch language".
The reply given to the second limb of the fifth question does not mention
the text of paragraph 4 and does not accord to paragraph 3 its proper scope.
This scope is considerable since it concerns, essentially, the linguistic
system relating to education. It is true, as the judgment holds, that the
legislator has derogated from the principle of territoriality with regard to the
six communes; it is also true that the six communes constitute "a distinct
administrative district" and that they are allotted a "special status"; likewise
it is true, under the terms of Section 7 (2), that the local services set up in
these communes draft both in Dutch and in French, the communications and
forms to be sent to the public. But paragraphs 3 and 4 cited above imply
that as regards education just as much as administration, the linguistic
system of the common law of the localities in question, is the Dutch system.
Thus the premises, from which the reply given to the second limb of the
fifth question follows, are all the more open to question as the scope of
paragraphs 3 and 4 is conclusive.
The legislator who, it must be reiterated, may grant derogations from the
principle of territoriality but who is not bound to do so, has, regard being
had to the Convention, the right to determine the precise limits within which
he intends to confine the extent of the derogation granted. In this case, he
has decided that these limits should be those, which are eminently objective,
of the territory of the six communes.
A system which derogates from the common law is by its very nature
limited in its effects. That those who do not fulfil the objective conditions
required (because they live outside the territory provided for) are in certain