THE GOVERNMENT DECREE ISSUED IN THE STATE OF DANGER ON CERTAIN RULES AFFECTING HIGHER EDUCATION IS NOT IN CONFLICT WITH THE FUNDAMENTAL LAW2 November 2021
The Constitutional Court rejected the judicial initiative to declare that Government Decree No. 522/2020 (XI. 25.) Korm. on certain rules affecting higher education in times of the state of danger is contrary to the Fundamental Law, to annul it and to prohibit its application. The Constitutional Court found in its decision that the enforcement of the contested regulation does not violate the autonomy of higher education guaranteed by the Fundamental Law, provided that the maintainer, in making its decision, took the measure under the contested regulation in cooperation with the higher education institution and with the consent of the body representing the autonomy of the higher education institution. The existence of the consent of the Senate must be examined by the ordinary court in its proceedings.
With 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, in the summer of 2020, the Parliament called on the Government to take the necessary measures on behalf of the State to establish the Foundation for Theatre and Film Arts as a public interest trust foundation, and then to grant to the Foundation the right to maintain the university as a material asset provided by the founder. The Foundation, exercising the maintainer’s right over the University, has been established by the Government and the founder’s rights over the Foundation are exercised by the Minister for Innovation and Technology. According to the government decree that entered into force at the end of November 2020 and which is the subject of the present review, during a state of danger, such as an epidemic emergency, the provider may determine that the conditions for the lawful fulfilment of study obligations are not met or cannot be ensured, and the semester affected by the emergency situation will not be counted in the number of semesters financed for the participants in higher education.
In the view of the petitioner court, the regulation resulting from the government decree, providing the maintainer with such a broad possibility to establish that the legal conditions for the study obligations are not fulfilled, is contrary to the Fundamental Law. It is essential for the realisation of university autonomy that the institution of higher education has autonomy vis-à-vis the executive power in matters directly related to academic activity. As explained in the petition, such a decision by the maintainer violates the freedom of academic and artistic life.
The Constitutional Court found in its decision that the enforcement of the contested regulation does not violate the autonomy of higher education guaranteed by the Fundamental Law, provided that the maintainer, in making its decision, took the measure under the contested regulation in cooperation with the higher education institution and with the consent of the body representing the autonomy of the higher education institution. The existence or absence of the Senate’s consent, however, is a question of fact-finding, evidence and evaluation of evidence, which is the competence and responsibility of the ordinary court.
Furthermore, the Constitutional Court found that the regulation restricts the right to higher education to a necessary and proportionate extent, because it only applies for the duration of the state of danger and allows the exercise of a special right by the maintainer, with the consent of the Senate of the higher education institution. The existence of an extraordinary circumstance that could not have been avoided is also a question of fact subject to review by the ordinary court, and the court may also find that certain features of the extraordinary situation that arose did not result in the situation not being avoidable.
Based on the above, the plenary session of the Constitutional Court rejected the judicial initiative.
Egon Dienes-Oehm, Imre Juhász, László Salamon and Marcel Szabó, Justices of the Constitutional Court attached concurring reasoning to the decision, and Ildikó Hörcherné Marosi and Balázs Schanda, Justices of the Constitutional Court attached dissenting opinions to the decision.