Petition of the Ombudsman to the Constitutional Court on student contracts

Press release:

Petition of the Ombudsman to the Constitutional Court on student contracts

The Commissioner for Fundamental Rights turned again to the Constitutional Court and requested it to examine whether the regulation of student contracts, now laid down in an Act of Parliament but unchanged in its content, is compatible with the right to freely choose one's job and profession or the right to participate in higher education. According to the Commissioner the obligatory conditions of the contract continue to constitute a disproportionate restriction of rights, in particular the stipulation of a long-term and general obligation to perform work in Hungary.

At the end of March 2012, pursuant to the submission of the National Conference of Student Self-governments, Máté Szabó initiated that the Constitutional Court should examine whether the government decree on student contracts was compatible with the guarantees laid down in the Fundamental Law. In its decision at the beginning of June the Constitutional Court ruled that the authorisation given by the Act on Higher Education to the Government to determine in a decree the essential content of contracts to be concluded with students who obtained a state-financed scholarship was unconstitutional. The Constitutional Court annulled the authorising rule of the Act and the government decree based thereon and so, in accordance with its previous practice, it did not examine further constitutional arguments concerning the substance of the matter.

Right on the day of the delivery of the Constitutional Court decision, on 4 July 2012, the Education Committee of Parliament submitted a motion for amending the Bill on National Higher Education. The adopted amendment to the Act, apart from renaming the Act, automatically integrated the regulation of the former government decree into the Act without a revision of its substance. The Higher Education Act stipulates that graduated students shall work in Hungary for twice the time period of their subsidised study time within twenty years of obtaining their degrees, and if they fail to do so the amount of state subsidy shall be wholly or partly repaid.

In his new petition Máté Szabó Ombudsman has reiterated his previous constitutional concerns relating to the substance and pointed out again that ‘scholarship contracts', because of their nature, cannot be compared to traditional study contracts. The problem remains unresolved that the contracting parties, namely the student and the State, are not in an equal position, and that 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 could afford to finance their higher education without state support.

According to the Ombudsman the rules of student contracts, now laid down in an Act, put disproportionate restrictions on several fundamental rights of the students. In the contract students undertake a unilateral and long-term obligation, while the State, as in the previous regulation, merely ‘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. Following the decision of the Constitutional Court the petition also mentions that when interpreting the content of the right to freely choose one's job and profession, one cannot disregard binding European Union norms on free access to employment.