a)  Hungary / b)  Constitutional Court / c) / d)  14-11-2005 / e)  41/2005 / f) / g)  2005/142 / h) .
Keywords of the systematic thesaurus:
Institutions - Executive bodies - Sectoral decentralisation - Universities.
Fundamental Rights - Economic, social and cultural rights - Freedom to teach.
Fundamental Rights - Economic, social and cultural rights - Right to education.
Fundamental Rights - Economic, social and cultural rights - Scientific freedom.
Keywords of the alphabetical index:
Institution, higher education, autonomy, / University, restructuring / University, dissolution / University, decision-making body / University, minister of education, authority.
Scientific, teaching and studying activities can enjoy autonomy and independence, as can operational, economic and restructuring activities carried out by institutions of higher education. It is not necessarily unconstitutional if certain efficiency criteria are taken into account in the course of distributing state subsidies provided these stand up to scientific scrutiny. These criteria can never be based only on considerations of market utility or political expedience. It is also not unconstitutional to supervise the scientific or teaching activity of higher education institutions on economic grounds or to order certain efficiency measures.
I. On 23 May 2005 Parliament passed a new Act on higher education (hereinafter referred to as "the Act"). The President of the Republic referred the Act, which had been adopted but not promulgated, to the Constitutional Court for review. The President was concerned that the new strategic decision-making bodies, the institutional councils of the state-run higher education institutions introduced by the Act, would receive powers which could violate the autonomy of higher education institutions, and therefore also Article 70/G.1 of the Constitution. Article 70/G.2 states that only scientists are entitled to decide upon questions of scientific truth and to determine the scientific value of research. The President accordingly suggested that it would be unconstitutional if the Government were authorised to decide which scientific fields can launch doctoral programmes. Another provision within the Act empowers the Minister of Education to restructure or dissolve a higher education institution if it does not comply with the requirement of economic and rational management. This can happen if the higher education institution exceeds its budget. The President suggested this provision might contravene Article 70/G of the Constitution. The authority given to the Minister could also run against Articles 57.1 and 70/K of the Constitution, since no remedy is provided against such decisions. Finally, he suggested that the requirement of legal certainty could be infringed, as it was not clear when the Act was to become effective and the old act on higher education would lose its effect.
II. The Court concurred with the concerns voiced by the President and ruled that the Act is unconstitutional and cannot become effective.
According to the Act, the provisions of the old act on higher education were only to be applied from the day the Act was to come into force, namely 1 September 2005. If the Act had not been introduced, this would clearly contravene the requirement of certainty, as laid down by Article 2.1 of the Constitution.
The Court based its reasoning as to the autonomy of state-run higher education institutions on its earlier decisions. In Decision 34/1994 (VI. 24) it emphasised that freedom of scientific and artistic expression and the freedom to learn and to teach fall within the scope of fundamental communication rights.
In Decision 861/B/1996 the Court ruled that higher institutions are entitled to exercise these freedoms, thus ensuring for professors, researchers and students the freedom of teaching, research, study and creative artistic activity.
The structure of the new strategic decision-making body, the institutional council, was considered. The Senate of the higher education institution appoints more than half of the members of the institutional council; the Minister of Education appoints other members. The president of the institutional council is the Rector. With the exception of the rector, students or employees of the institution cannot be members of the institutional council. Members of the council do not have to be involved in teaching or to have a scientific degree. Specialisation in the given field is a precondition only in a few cases. The Court concluded that the institutional council cannot be regarded as a self-governing body of the higher education institution. It does, however, have several powers with a direct impact on the scientific environment of the institution. Consequently, handing over of strategic powers over innovative research and development and the Council's right to restructure or dissolve uneconomically operating units or activities within an institution contradicts Article 70/G of the Constitution. The institutional council would otherwise be free to subordinate scientific, teaching and research activities to its own self-defined market considerations.
The Court also found the Government's power to decide upon those scientific fields that can launch doctoral programs is at variance with the Constitution. It jeopardises the possibility of receiving scientific degrees in certain fields and undermines the professionalism of certain areas of science.
The provisions authorising the Minister of Education to restructure or dissolve a higher education institution in certain cases were also found unconstitutional. The Minister could dissolve an institution either if:
1. it does not comply with the requirement of economic and rational management (for instance if it exceeds its budget) or
2. the entrance examinations are unsuccessful in three consecutive years. This would happen if the actual number of students does not amount to seventy per cent of the number of students who can theoretically be admitted to the institution.
The Court stressed that the requirement to comply with economic and rational management does not necessarily violate the Constitution. However, this requirement has to be defined in a normative way that corresponds with scientific considerations.
Precise normative conditions would dictate that the future operation, restructuring and dissolving of higher education institutions would fall within the authority of the Minister of Education. The centralisation of these competences to the management supervisor encroaches upon institutional autonomy and therefore contradicts Article 70/G of the Constitution.
Since the Minister of Education cannot theoretically have such functions the Court did not review that part of the Act pertaining to the availability of legal remedies against such management supervisory acts.
Supplementary information:
Justice Kovács gave a concurring opinion. In his view, the Court should have examined ex officio the compliance of the provisions with the international obligations Hungary has to fulfil.
Justice Kiss gave a dissenting opinion. He contended that the new act on higher education sets out clearly the conditions under which the Minister of Education can reorganise and dissolve higher education institutions. The Minister's power is therefore not arbitrary. He went on to say that the provisions concerning the new strategic decision-making body - the institutional council - are also in harmony with the Constitution. The state has a duty to provide an effective system of higher education and, in so doing, it has the right and the duty to ensure that the system is productive. The fact that the institutional council cannot be regarded as a self-governing body of the higher education institution is not in itself contrary to the Constitution. Such a council, even if it is outside the higher education system, can safeguard the freedom of science and could also counteract the danger of stagnation within a higher education institution.
- Decision no. 34/1994, Bulletin 1994/2 [HUN-1994-2-010].