Petition of the Ombudsman to the Constitutional Court on the government decree regulating student contracts

AJB-2834/2012

Petition of the Ombudsman to the Constitutional Court on the government decree regulating student contracts

The mandatory conditions of student contracts laid down in a rule of law, in particular the regulation that provides for a long and general obligation to perform work in Hungary, constitute a disproportionate restriction of rights. The Commissioner for Fundamental Rights therefore requested the Constitutional Court to examine whether the government decree on student contracts is compatible with the guarantees laid down in the Fundamental Law.

The National Conference of Student Self-governments requested Commissioner Máté Szabó to file a petition to the Constitutional Court since the detailed rules on student contracts were laid down by the law-maker in a decree instead of an Act of Parliament, and moreover the regulation puts unnecessary and disproportionate restrictions on the fundamental rights of students of higher education and infringes the requirement of equal treatment. The Ombudsman has found that a considerable part of the fundamental rights concerns raised in the submission are well-founded; therefore, he has initiated proceedings with the Constitutional Court and simultaneously requested the immediate suspension of the entry into force of the government decree.

The contested government decree stipulates that students having obtained their degrees are obliged to work in Hungary for a time twice the length of their study time within twenty years of graduating; if they fail to do so, they have to pay back in part or in full the amount of state support received.

In his petition Ombudsman Máté Szabó points out that student contracts, because of their nature, cannot be compared to traditional study contracts. The contracting parties, namely the student and the State, are not in an equal position, and, being aware of the social circumstances, the often declared voluntary nature of the conclusion of the contract is a reality only for a presumably very narrow circle of young people whose families live in good financial situation and would be able to finance their higher education without state support.

According to the position of the Parliamentary Commissioner, the rules on student contracts constitute a restriction on the right of students to self-determination and their right to freely choose their work and profession. Máté Szabó emphasises that in order to ensure proper guarantees, the main elements of student contracts should be regulated on the level of Acts of Parliament because these contracts put restrictions on several fundamental rights of the students.

The Ombudsman has also drawn attention to the fact that the social need which presumably serves as the justification of the student contracts, the domestic employment of persons with degrees, may at most qualify as an objective of legal policy. According to the Commissioner the restriction is not proportionate: in the contract the student undertakes a unilateral and long-term obligation, while pursuant to the decree the State only ‘strives' to ensure adequate work opportunities for graduates, consequently, if necessary, they must get a job with a domestic employer even outside their professional field. The petition of the Commissioner for Fundamental Rights also mentions that when interpreting the content of the right to freely choose one's job and profession, we cannot disregard the European Union norms on the free movement of persons and on free access to employment which are binding on Hungary.