EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 04-07-2012 / e) 32/2012 / f) On the annulment of governmental decree concerning student fees / g) Magyar Közlöny (Official Gazette), 2012/85 / h) .
Keywords of the systematic thesaurus:
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Fundamental Rights - General questions - Limits and restrictions - General/special clause of limitation.
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Fundamental Rights - Economic, social and cultural rights - Right to education.
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Fundamental Rights - Economic, social and cultural rights - Freedom to choose one's profession.
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Keywords of the alphabetical index:
Limitation, basic rights / Scope, governmental decree / Student fee, higher education.
Headnotes:
The terms of contracts for students receiving state scholarships contained in a governmental decree should have been incorporated into an Act.
Summary:
I. The Commissioner of Fundamental Rights requested the Constitutional Court to review whether the Governmental Decree 2/2012 on the state scholarship students’ contracts (hereinafter, the "Decree") is compatible with Articles B.1, I.3, II, XI and XII of the Fundamental Law (hereinafter, the "FL"). According to the Commissioner, the Decree is against the FL. The reason is that the subject matter of state scholarship students’ contracts concerns fundamental rights (the right to freely choose a job or a profession and the right to education). Therefore, it should have been regulated by an Act of Parliament (formal ground). In addition, the Commissioner argued that obliging students with state grants to sign a contract restricts their rights to freely choose a job and participate in higher education (substantive ground).
The Decree obliged students with state grants to sign a contract according to which they agree to take up employment after graduation in Hungary for a period equal to double their period of study within 20 years.
II.1. First of all, the Constitutional Court compared the fundamental rights restriction clause of the former Constitution to the fundamental rights restriction clause of the FL. According to the first sentence of Article 8.2 of the former Constitution, "in the Republic of Hungary rules relating to fundamental rights and obligations shall be laid down in Acts." Under the first sentence of Article I.2 of the FL, "the rules relating to fundamental rights and obligations shall be laid down in Acts." In the current case, the relevant texts of the former Constitution and the FL are identical. And if that is the case, the Constitutional Court can use those arguments of its previous decisions based on the former Constitution that are relevant in deciding a constitutional matter and are not in contradiction with the provisions and interpretative rules of the FL. Consequently, in the instant case, the Constitutional Court had to decide how directly the regulation concerning the student contracts affected fundamental rights.
2. Article 70/F.1 of the former Constitution ensured the right to education for all its citizens. According to Article 70/F.2, this right should be implemented – among others – through higher education accessible to everyone according to their abilities and through financial support for students in training. Under Article XI.2 of the FL, the right to education shall be ensured by – among others – higher education accessible to everyone according to their abilities, and by providing financial support as laid down in an Act to those receiving education. According to the established constitutional case-law, the Constitution does not provide a substantive right to any person for a university place. However, the regulations on the form and structure of the education as well as the requirements for receiving a diploma are essential guarantees of the right to education. Therefore, they shall be laid down in Acts. In addition, the last sentence of Article XI.2 of the FL explicitly requires that providing financial support for higher education shall be laid down in an Act. Consequently, the Constitutional Court established that regulating state scholarship student contracts directly impacted the right of affected students to take part in higher education, which constitutes an essential element for state subsidies to higher education.
3. Article 70/B.1 of the former Constitution ensured that everyone has the right to work and to freely choose a job and profession. Article XII.1 of the FL also reads that everyone has the right to freely choose a job or profession. Therefore, the Court examined whether the regulation concerning the state scholarship students’ obligation to work in Hungary for a certain period of time effect directly the fundamental right of free choice of employment and occupation. The Constitutional Court when interpreting the right to freely choose a job or profession took into account the relevant EU law. First of all, Article 45 of the Treaty of the Functioning of the EU, which secures freedom of movement for workers within the EU. In addition the Court considered the relevant case law of the ECJ (Joined Cases C-11/06 and C-12/06 Rhiannon Morgan v. Bezirksregierung Köln and Iris Bucher v. Landrat des Kreises Düren). Under the Decree, students awarded state scholarships are obliged after graduation to work in Hungary for a period equal to double their period of study within 20 years. According to the Court, this rule directly affected the right to free choice of occupation; therefore, it should have been regulated in an Act. As a result, the Court annulled the Decree and decided that it must not enter into force.
III. Justice András Bragyova attached concurring opinion to the decision, Justice István Balsai, Barnabás Lenkovics, Béla Pokol, Péter Szalay and Mária Szívós attached separate opinions to the judgment.
Supplementary information:
On 12 July 2012 Parliament approved an amendment to the Act on Higher Education, which incorporated the terms of state scholarship students’ contracts without making any changes to these terms. Consequently, the Commissioner for Fundamental Rights has again turned to the Constitutional Court to seek an opinion over the constitutionality of the Act on Higher Education, which incorporated the terms of student contracts.
Hungarian.