It is only when the three components interact together that the right to education is guaranteed. - the whole (the right to education) is therefore greater than the sum of its parts. This interpretation of Article 26 also confirms that the three components are interconnected and that a policy change affecting one of them will also influence the others. This underlines the importance of recognising and taking into account the hidden costs and unintended consequences that are so often associated with government interventions in education.
Neither state policy nor parental choice should undermine the aims of education.

Parents' real freedom of choice is proportional to the reality of the educational diversity available. Are there enough different schools and are they affordable for all parents?

Moreover, there is an obvious contradiction between the state's monopoly on education and the guarantee of parents' right to choose how their children are educated. As Huxley (1951) has already pointed out, this contradiction is comparable to the guarantee of citizens' right to choose their representatives in one-party countries.

In other words, if parental choice cannot be exercised because of the lack of diversity in the educational landscape, then not going to school remains the only area accessible to the greatest number of people that allows genuine freedom of educational choice while respecting fundamental rights.

B. Luxembourg legislation

a) Constitutional law and the European Charter of Fundamental Rights

The new Luxembourg Constitution, which came into force on 1^st July 2023² Article 2 states that The Luxembourg nation is founded on the principles of the rule of law and respect for human rights.


On education, article 33 tells us that :

(1) Everyone has the right to education.
(2) The State shall organise education and guarantee access thereto.
The length of compulsory education is determined by law.
Public basic and secondary education is free.
(3) Freedom of education shall be exercised with respect for the values of a democratic society based on fundamental rights and freedoms. civil liberties.³
State intervention in private education is determined by law.
(4) All persons are free to study in Luxembourg or abroad and to attend the universities of their choice. The conditions for the recognition of diplomas are determined by law.

In Article 15 §5, the Luxembourg Constitution also states that :

" The child's best interests are paramount in any decision affecting him or her. Every child is free to express his or her opinion on any matter that concerns him or her. His or her views shall be given due weight in accordance with his or her age and understanding. Every child has the right to such protection, measures and care as are necessary for his or her well-being and development.

In the hierarchy of laws, the Luxembourg Constitution has supreme legal value, taking precedence over all other national laws.⁴.

It is also important to remember that, since it involves implementing European Union rights, in particular the right to education and the rights of the child, the European Charter of Fundamental Rights - a very modern catalogue of human rights - is legally binding on the Grand Duchy of Luxembourg as a Member State of the European Union.
 

The European Parliament stressed that " the national authorities (judicial authorities, law enforcement agencies and administrative authorities) play a key role in giving practical effect to the rights and freedoms enshrined in the Charter ".
This European Charter of Fundamental Rights has the same value as international treaties under Luxembourg law, as well as other charters or covenants that are just as relevant.⁵

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b) International treaties under Luxembourg law

Under Luxembourg law, the law of 29 August 1953 (Mém. 53 of 29 August 1953, p.1099) approved the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the Additional Protocol, signed in Paris on 20 March 1952, so that :

 "No one shall be denied the right to education. The State, in the exercise of the functions it assumes in the field of education and teaching, shall respect the right of parents to ensure such education and teaching in accordance with their religious and philosophical convictions".

In Luxembourg, it has also been accepted for several decades by the courts that an international treaty takes precedence over national law.

The European Convention on Human Rights (ECHR) was incorporated into Luxembourg domestic law on 3 September 1953. Since then, it has been clearly stated that the Convention applies in Luxembourg law, as do other texts of international law (treaties), as long as their content is clear and precise enough. This means that any citizen can invoke one of the articles of the Convention directly before a court, whether it be a criminal court, a civil court, a commercial court, etc.⁶

The International Convention on the Rights of the Child (CRC) was ratified by the Luxembourg Chamber of Deputies in December 1993. With this ratification, the Grand Duchy undertook to respect the rights set out in this text: the right to the best health care, to education, to protection against all forms of violence, to protection against discrimination, to intimacy and protection of privacy, to participation, etc.

The United Nations has issued a number of recommendations to clarify the content and interpretation of human rights.⁷ and the International Convention on the Rights of the Child (CRC)⁸.

Noting that children and young people are the silent victims of global bureaucracies, whose creative statistics and evasive vocabulary mask their inability to translate their promises into reality, the deceased Katarina Tomaševskithe UN Special Rapporteur wrote her conclusions in a global report in 2006⁹ and launched a website entirely dedicated to protecting the right to education¹⁰.

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c) National law

Finally, the humanist values of fundamental rights are also reflected in national legislation.

The new law of 20 July 2023¹¹ which comes into force on 31 July 2023, repeals the law of 6 February 2009 on compulsory education.
However, the amended law of 6 February 2009 on the organisation of basic education is still in force.¹²

• The law of 20 July 2023 extends compulsory education by two years up to the age of 18, so the State must provide each young person with a place in an educational establishment until the age of 18 from the start of the 2026 school year.
• From now on, authorisation must be requested from the regional director to practise home schooling at primary level and obtained from the Ministry of Education to withdraw from school at secondary level.
• The Minister is responsible for monitoring compliance with the compulsory education requirement.

It is no longer necessary to inform your commune of the choice of home schooling.

• However, the commune must be informed if the young person is enrolled in a private educational establishment.¹³.
• In the case of enrolment in a foreign educational establishment, a certificate must be sent to the minister or any change in the terms under which the obligation to attend school is met must be reported within eight days (art. 8).

The Ministry of Education is now responsible for monitoring compliance with compulsory schooling. To do this, data from the national register of natural persons is cross-referenced on a monthly basis to detect any persons holding parental authority who fail to comply with the law. They are then given formal notice to comply by registered letter.

If a registration certificate or a home-schooling authorisation is not provided within 8 days of the date of receipt of the formal notice, the minister will inform the youth court with territorial jurisdiction.

In fact, article 9 of the law of 20 July 2023 stipulates that :

Art. 9.

(1) The Minister is responsible for monitoring compliance with compulsory schooling on a continuous basis and at least once a month.
(2) Checks are carried out by cross-referencing the data in the national register of natural persons concerning minors subject to compulsory education with the data provided for in article 8.
(3) If the Minister finds that a minor is subject to compulsory education :
1° failure to enrol in the compulsory courses, activities and training provided for in Article 5(1), or
2° in the event of a defect in a registration as referred to in point 1°, the absence of authorisation for home schooling, or
3° the absence of at least forty-eight lessons in the course of a school year from the compulsory courses, activities and placements provided for in Article 5(1) without justification on one of the grounds referred to in Article 10(2), it shall give formal notice by registered letter with acknowledgement of receipt to the persons having parental authority to comply with the law.
(4) In the absence of registration for the compulsory courses, activities and courses provided for in Article 5, paragraph 1, or of authorisation for home schooling within eight days from the date of receipt of the formal notice, or in the event of a further unjustified absence from the date of receipt of the formal notice, the minister shall inform the juvenile court with territorial jurisdiction.

The law of 20 July 2023 imposes compulsory schooling from the age of 4, which will be extended from 16 to 18 by the start of the school year in 2026.¹⁴:

Art. 4.
(1) All minors aged four years or over before 1 January of the following year.^st All children born on or after 1 September and ordinarily resident in the Grand Duchy of Luxembourg are subject to compulsory education.
(2) Compulsory schooling ends at the age of eighteen or, before the age of eighteen, when :
1° a diploma or certificate certifying completion of secondary education or vocational training, issued by a Luxembourg public establishment or by a private establishment approved by the Luxembourg State; or
2° another diploma or certificate recognised as equivalent to one of the diplomas or certificates referred to in the previous point by law or by decision of the Minister responsible for National Education, hereinafter referred to as the "Minister".

For young people aged between 4 and 12 on September 1st who are in primary education, parents/tutors must request authorisation from the director of their district, providing reasons for their request, in order to be able to teach at home.


However, articles 19 and 21 of the law of 6 February 2009 on the organisation of basic education remain valid:

Art. 19.
Every child living in the Grand Duchy must attend the local school in the catchment area of their commune of residence, unless they are enrolled in another local school in their commune of residence, in a state school or a European School, in a private school or in a school abroad, or they are being taught at home.

Art. 21.
Parents who intend to home-school their child must state their reasons in their application and request authorisation from the district inspector. This authorisation may be time-limited. Home schooling must aim to ensure the acquisition of the basic skills defined in the curriculum. In duly justified circumstances, particularly if the parents intend to provide their child with distance learning, the district inspector may grant an exemption from teaching one or other of the subjects provided for in Article 7. Home schooling is subject to inspection by the inspector.
If it is found that the education provided does not meet the criteria defined above, the pupil will be automatically enrolled at the school in their commune of residence. The same will apply if the inspector is refused permission to carry out the inspection.

The list of directors of basic (primary) and secondary education is available at this link https://men.public.lu/fr/support/annuaire.html

(if the link no longer works, do a search on 'MENJE' + 'annuaire')

Below is an example of a request for authorisation for a young person who is in primary school (< 12 years old on September 1st):

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Mr or Mrs Director X
Address....
L-....

Place, Date

Sir, (Madam)....

In accordance with article 21 of the law of 6 February 2009 on the organisation of basic education and the law of 20 July 2023 on compulsory education currently in force, we request your authorisation to teach our child X (Matricule nr....) at home from.....

Reasons: .....
State your reasons, which must be in the child's best interests

We look forward to meeting you in the very near future to explain our educational choices, which will enable our child to benefit from an education appropriate to his needs.

Sincerely

Family....

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On request, we can proofread your draft letter to check that it complies with the law.

For young people aged 12 to 16 on 1 September, and 18 years of age from 1^st September 2026, home schooling at secondary level is now also subject to authorisation. However, there are no specific regulations, as is the case for home schooling at primary level.

However, article 1 of the law of 20 July 2023 on compulsory education specifies that:

Art. 1  ‘All education contributes to transmitting to the person who benefits from it, in addition to knowledge and skills, respect for oneself and one's identity, a sense of responsibility, respect for others, respect for the pluralism of opinions and beliefs, respect for the values of a democratic society based on fundamental rights and civil liberties, respect for the national culture, respect for the pluralism of cultures and respect for the natural environment.
It promotes personal fulfilment and autonomy, creativity, confidence in one's abilities, the development of one's gifts and mental and physical aptitudes, to the extent of one's potential, without distinction of any kind. It enables them to acquire a general education and prepares them for further studies and lifelong learning, for building their own life and life in society, for professional and social life and for exercising their rights and responsibilities as citizens in a free democratic society, in a spirit of understanding, peace, respect, gender equality and friendship between all peoples and ethnic, national, philosophical and religious groups. It enables the person who benefits from it to acquire a culture in contemporary information and communication society and allows them to observe and understand the society of today and tomorrow as well as to grasp how it functions and the challenges that await it.’

The law of 20 July 2023 does not specify the reasons for the request.
All you need to do is make a simple request for authorisation, by contacting the person in charge of home schooling at the secondary school, whose contact details are given below:

Secondary Education Department (ES)

Telephone	Name	Title	Function	Email
247-85246	MARCHI Yves		Homeschooling	yves.marchi@men.lu

Finally, it should be remembered that, according to article 2 of the law of 16 December 2008 on child and family support:

"In all decisions concerning children, the child's best interests must be a primary consideration...".

(NB The term child is used in our texts in the legal sense of "minor".)

For more details or additional questions, see the comments in the following chapters ("In practice..." and "FAQ") or contact us by email at alliasbl@gmail.com.

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