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2021. June 22.

Decision 21/2021. (VI. 22.) on university autonomy

Decision number: Decision 21/2021. (VI. 22.)
Subject of the case:

Judicial initiative aimed at establishing the lack of conformity with the Fundamental Law and annulling the Act LXXII of 2020 on the Foundation for Theatre and Film Arts, the transfer of assets for the Foundation for Theatre and Film Arts and the University of Theatre and Film Arts and Section the 94 (6) of the Act CCIV of 2011 on National Higher Education (university autonomy, freedom of academic life)

The Constitutional Court rejected the judicial initiative against the Act on the University of Theatre and Film Arts and certain provisions of the Higher Education Act, but established as a constitutional requirement that the maintaining authority must provide sufficient time for the exercise of the right of the senate of the higher education institution to express its opinion and the opportunity to formulate a substantive proposal, which it must take into account in a traceable manner in its decision-making. In the case underlying the procedure, the Student Self-Government of the University of Theatre and Film Arts (SZFE) brought an action against the defendant SZFE maintaining foundation, which, following the amendment of the Higher Education Act and the transfer of the university to the foundation, adopted a new university charter and new organisational and operational regulations in August 2020. In connection with the amendment of the Higher Education Act, the petitioning judge explained that, in his opinion, the provision of the Act, according to which the defendant foundation exercising the right to maintain the university was established by the Government, the minister of innovation and technology exercises the rights of founder over it, and appoints the board of trustees of the defendant, while the Government provides its assets, is contrary to the provision of the Fundamental Law guaranteeing the freedom of Hungarian scientific and artistic life. According to the motion, it is essential for the realisation of university autonomy that the institution of higher education has autonomy vis-ŕ-vis the executive power in matters directly related to academic activity. In its decision, the Constitutional Court stated that the legislative environment giving rise to the constitutional problem raised by the petitioner has been changed by the law-maker in the meantime, regulating that the senate, the custodian of higher education autonomy, exercises the right to give an opinion or to give its consent regarding the powers previously allocated solely in the remit of the board of trustees. According to the Constitutional Court, the challenged provision does not violate the Fundamental Law due to the regulation giving the senate substantive influence, and therefore the Court rejected the judicial initiative to annul the relevant provision of the Higher Education Act. At the same time, the Constitutional Court explained that the operation of higher education institutions is the responsibility of the maintainer, who may not exercise this right by making the organisational framework ensuring the autonomy of the higher education impossible or inoperable. The board of trustees and the senate have a common interest in the successful and efficient operation of the higher education institution, and this necessarily implies that conflicts along the common interest must be resolved through mutual cooperation between the two bodies in order to ensure the operability of the institution. According to the Constitutional Court’s decision, it is a constitutional requirement following from ensuring the sustainability of the higher education system and guaranteeing the autonomy of higher education institutions that if the maintaining body adopts the budget, annual report, organisational and operational rules and asset management plan of the higher education institution, decides on the establishment of or the acquisition of shares in a business organisation, or calls for applications for the post of the rector, it must give the senate of the higher education institution sufficient time to exercise its right to express its opinion, provide it with the opportunity to make substantive proposals, and take these into account in a transparent manner in its decision-making.