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Case number:
U-I-269/12
ECLI:
ECLI:SI:USRS:2014:U.I.269.12
Challenged act:
Organisation and Financing of Education Act (Official Gazette RS, Nos. 16/07 – official consolidated text, 36/08, 58/09, 64/09 – corr., 65/09 – corr., and 20/11) (OFEA), 1st sent. of the 2nd para. of Art. 86.
Operative provisions:
The first sentence of the second paragraph of Article 86 of the Organisation and Financing of Education Act (Official Gazette RS, Nos. 16/07 – official consolidated text, 36/08, 58/09, 64/09 – corr., 65/09 – corr., and 20/11) is, in the part that refers to carrying out state-approved primary education programmes, inconsistent with the Constitution.
 
The National Assembly must remedy the established inconsistency with the Constitution within one year following the publication of the present Decision in the Official Gazette of the Republic of Slovenia.
Abstract:
The second paragraph of Article 57 of the Constitution ensures pupils the right to attend compulsory state-approved primary education programmes free of charge in public and private schools.
 
The legislative regulation and data in the case file do not support the legislature’s allegations that state-approved primary education programmes that are carried out as a public service without a concession include subjects that public school programmes do not include or must not include. Since the legislature failed to demonstrate that the interference with the right to primary education free of charge is justified by a constitutionally admissible objective, the Constitutional Court established that the first sentence of the second paragraph of Article 86 of the Organisation and Financing of Education Act is inconsistent with the Constitution in the part that refers to compulsory state-approved primary education programmes, and imposed on the legislature the obligation to remedy the established unconstitutionality within one year following the publication of the present Decision in the Official Gazette of the Republic of Slovenia.
Thesaurus:
1.5.51.1.15.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is not in conformity - With the Constitution.
1.5.51.1.16 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Call to the norm-giver to adjust a regulation with the Constitution.
5.4.2 - Fundamental Rights - Economic, social and cultural rights - Right to education.
3.16 - General Principles - Proportionality.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
1.5.5.2 - Constitutional Justice - Decisions - Individual opinions of members - Dissenting opinions.
Legal basis:
Arts. 57.1, 57.2, Constitution [CRS]
Art. 48, Constitutional Court Act [CCA]
Cases joined:
¤By the Order of the Constitutional Court dated 11 April 2013, cases No. U-I-273/12 and U-I-307/12 were joined to the present case for joint consideration and decision-making.
Full text:
U-I-269/12
4 December 2014
DECISION
 
At a session held on 4 December 2014 in proceedings to review constitutionality initiated upon the petitions of Anton and Bernarda Kokalj, Vodice, Peter and Nika Gregorčič, Ljubljana, and St. Stanislav’s Institution, Ljubljana, represented by Radovan Cerjak, attorney in Ljubljana, the Constitutional Court
 
decided as follows:
 
1. The first sentence of the second paragraph of Article 86 of the Organisation and Financing of Education Act (Official Gazette RS, Nos. 16/07 – official consolidated text, 36/08, 58/09, 64/09 – corr., 65/09 – corr., and 20/11) is, in the part that refers to carrying out state-approved primary education programmes, inconsistent with the Constitution.
 
2. The National Assembly must remedy the established inconsistency with the Constitution within one year following the publication of the present Decision in the Official Gazette of the Republic of Slovenia.
 
 
REASONING
 
 
A
 
1. The first and second pair of petitioners are parents of minor school-age children who must pay a portion of the tuition for attending a state-approved primary education programme at the private Alojzij Šuštar Primary School, the founder of which is the third petitioner. Therefore, they challenge the first sentence of the second paragraph of Article 86 of the Organisation and Financing of Education Act (hereinafter referred to as the OFEA), in accordance with which private schools carrying out state-approved education programmes are provided 85% of the funds the state provides for carrying out public education programmes. The petitioners do not challenge the second sentence of the second paragraph of Article 86 of the OFEA, in accordance with which private schools are not entitled to receive funds for investments in assets, capital maintenance expenditures, and equipment.
 
2. The first and the second pair of petitioners allege a violation of Articles 1, 2, 14, 15, 35, 22, 41, 54, and 57 of the Constitution. They allege that from 1 September 2012 onwards they must pay the school monthly tuition to carry out the state-approved part of the [education] programme, although the second paragraph of Article 57 of the Constitution determines that primary education shall be financed from public funds. Concretely, in 2011, the third petitioner allegedly received EUR 109,014.17 less to carry out the state-approved part of the [education] programme than a comparable public primary school would have received, whereas in the first half of 2012 it received EUR 65,008.67 less. The mentioned petitioners allege that the position of school-age children in private schools is essentially comparable to the position of school-age children in public schools, therefore the unequal provision of public funds allegedly violates equality before the law as determined by the second paragraph of Article 14 of the Constitution and the equal protection of rights determined by Article 22 of the Constitution, as there are no reasonable and objective grounds for a reduction in such financing. They stress that only financing the state-approved part of the programme is problematic, whereas the financing of additional lessons and other content, which parents pay for separately as a surcharge for the higher standard programme, is not. Due to the challenged provision, which in 1996, when the OFEA entered into force, limited the financing of private schools, those private schools that were established prior to 1996 are provided [by the state] 100% of their budget, whereas those established after 1996 are only provided 85% [of the necessary funds]. The first and the second pair of petitioners refer to Decision of the Constitutional Court No. U-I-68/98, dated 22 November 2001 (Official Gazette RS, No. 101/01, and OdlUS X, 192), in which the Constitutional Court assessed the costs of the functioning of private schools (these allegedly include the costs of carrying out the programme, the costs of investments and equipment, and capital maintenance expenditures) and assessed that the decision of the state to fully fund only public schools falls within the legislature’s discretion and is thus not inconsistent with the Constitution. Insofar as primary education is concerned, they do not concur with this position, as it allegedly interferes with the freedom of education determined by the first paragraph of Article 57 of the Constitution. The Constitution allegedly limits the freedom of primary education, which is compulsory, in accordance with the second paragraph of Article 57, which requires the state to finance primary education from public funds. Also Article 26 of the Universal Declaration of Human Rights (Human Rights, Collection of International Documents, Part I, Universal Documents, Društvo za ZN za Republiko Slovenijo, Ljubljana 1995, pp. 1–7) requires the same. A comparison with European states allegedly demonstrates that primary education is very poorly developed in the Republic of Slovenia. The challenged provision allegedly also violates the parents’ right determined by the third paragraph of Article 41 of the Constitution, namely the right to provide their children with a religious and moral upbringing in accordance with their beliefs, and the right to educate and raise their children, which is determined by the first paragraph of Article 54 of the Constitution. The mentioned petitioners propose that the Constitutional Court abrogate the second paragraph of Article 86 of the OFEA and impose on the legislature the duty to place the financing of public and private school programmes on an equal footing.
 
3. The third petitioner alleges a violation of the second paragraph of Article 57 of the Constitution because the 85% financing of private schools compared with the 100% financing of public schools is allegedly inconsistent with the constitutional provision on compulsory primary education, which should be fully financed from public funds. The third petitioner considers itself to be a part of the public education network of the Republic of Slovenia as it is listed in the register of primary schools in the Republic of Slovenia and its diploma is a publicly recognised official document confirming that primary education has been completed. Therefore, it believes that the state should have provided the third petitioner financial conditions equal to those provided to public schools.
 
4. The Government concurs with the petition of the applicants and believes that the challenged provision is inconsistent with the Constitution. It refers to Eurostat data that indicate that the share of private education in the Republic of Slovenia is minimal compared with the other EU Member States, therefore it is of the opinion that the existing statutory regulation challenged by the petitioners de facto does not allow for private education in Slovenia. The Government is of the opinion that the principle of equality, if the principle of a social state is consistently observed, guarantees equal public financing in equal situations, i.e. equal public financing of all public and all types of private schools with a state-approved programme. The challenged statutory measure is allegedly not appropriate for ensuring the educational function of the state. Namely, both public and private schools carry out a state-approved programme and thus perform the educational function of compulsory primary education; therefore, a limitation of the financing of private education results in an unconstitutional monopoly of public education, which is also indicated by statistical data. Moreover, the challenged statutory measure is allegedly not necessary, as the purpose of public financing is not to ensure the existence of public schools, but to provide free access to education and to ensure the free choice of education. Last but not least, the challenged measure is allegedly also not proportionate, as, due to the limited financing of private schools, the benefits that children enrolled in public schools have are not comparable with the benefits that are limited at or taken from children attending private schools.
 
5. The National Assembly is of the opinion that the financing of public and private education falls within the legislature’s discretion, therefore the Constitution does not require it to be equal. During the adoption of the challenged provision, the National Assembly and the Government assessed that 85% co-financing would allow private schools to exist and that the state and local communities would still be able to provide financing in such amount. In comparison with other states, the co-financing share is allegedly relatively generous. In Belgian Linguistics, the European Court of Human Rights (hereinafter referred to as the ECtHR) adopted the position that the state is not obliged to either establish or finance private schools. According to the European Commission of Human Rights, the requirement to provide financial support allegedly entails the requirement that the state provide support to special educational institutions that serve specific religious or philosophical beliefs, however no state has such obligation. Allegedly, the second paragraph of Article 57 of the Constitution does not prescribe full financing of (all forms) of primary education from public funds, nor does it prohibit their financing from other sources. The required general access to primary education does not entail that all forms of primary education must be free of charge. The basis for the different financing of public and private schools is allegedly not based on who is the founder of the school, but on objective grounds, such as the differences between the education programmes in public and private schools, and consequently the differences in the curriculums, syllabi, manner of work, use of expert tools, fields of acquired knowledge, etc. The legislature considers it crucial that private schools’ education programmes that are approved by the state may also include lessons that public schools’ programmes do not include or even must not include (e.g. religious lessons, namely due to the principle of the separation of the state and religious communities), which also entail reasonable grounds for the different financing of public and private schools. The mentioned differentiation allegedly serves the implementation of the constitutionally ensured right to freedom of education, without the state being obliged to fulfil an obligation that is not prescribed by the Constitution, i.e. to fully finance private schools that pursue specific interests with their education programmes. Allegedly, private schools should be independent in determining the price of education programmes and the charges that parents must pay for the education of their children, therefore the challenged provision does not limit the right of parents to maintain, educate, and raise their children (the first paragraph of Article 54 of the Constitution), the right to provide their children with a religious and moral upbringing in accordance with their beliefs (the third paragraph of Article 41 of the Constitution), or the right to select the primary education of their children in a public or private school, or home education (Article 5 of the Primary School Act, Official Gazette RS, Nos. 81/06 – official consolidated text, 102/07, 107/10, 87/11, and 63/13 – hereinafter referred to as the PSA). The differentiation between the financing of schools established prior to 1996 and those after 1996 is based on Article 155 of the Constitution, in accordance with which the legislature must not interfere with acquired rights.
 
 
B
 
6. The Constitutional Court joined cases No. U-I-269/12 (Anton and Bernarda Kokalj), No. U-I-307/12 (Nika and Peter Gregorčič), and No. U-I-273/12 (St. Stanislav’s Institution) for joint consideration and decision-making.
 
7. The Constitutional Court accepted the petition for consideration and, since the conditions determined by the fourth paragraph of Article 26 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text and 109/12, hereinafter referred to as the CCA) were fulfilled, proceeded to decide on the merits of the case.
 
Review of the Public Financing of Education from the Viewpoint of the First Paragraph of Article 57 of the Constitution
 
8. Article 57 of the Constitution determines the right to education. Freedom of education is guaranteed (the first paragraph of Article 57 of the Constitution) and the state shall create opportunities for citizens to obtain a proper education (the third paragraph of Article 57 of the Constitution). By Decision No. U-I-68/98 (Paragraph 14 of the reasoning), the Constitutional Court assessed that this entails, above all, the duty of the state to enable individuals non-discriminatory access to the existing types and levels of education and to offer them a certain minimum quality standard of such education. The Constitutional Court has also already decided that, due to the extreme rigidity of public schools in practice, the decision of the state to not allow private schools (but only public schools) is no longer proportionate to the concept of a democratic society. Within the framework of private education, the right to freedom of education above all binds the state to create the necessary legal framework for the establishment and functioning of private schools and to publicly recognise the validity of education acquired in private schools (Paragraph 21 of the reasoning of Decision No. U-I-68/98).
 
9. In accordance with Article 2 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, and No. 7/94 – hereinafter referred to as the ECHR), no person may be denied the right to education. In Belgium Linguistics, the ECtHR determined that the right to education consists of the right to access educational institutions existing at a given time and the right to obtain, in conformity with the rules in force in each state, official recognition of the studies that one has completed.[1] However, due to the negative formulation of the right to education, the ECtHR assessed that, conversely, this right does not require Signatory States to establish or co-finance any form of education at any level.
 
10. The fact that the degree to which educational institutions are financed from public funds falls within the discretion of the legislatures of the individual Member States of the European Union (hereinafter referred to as the EU) also follows from the Treaty on the Functioning of the European Union (consolidated version, OJ C 326, 26 October 2012 – hereinafter referred to as the TFEU). In accordance with point (e) of Article 6 of the TFEU, the field of education falls within the supporting competences of the EU, with regard to which only incentive measures are admitted, which do not substitute for the measures of the Member States but only supplement them, and with regard to which any harmonisation of the laws and regulations of the Member States is expressly excluded (the first indent of the fourth paragraph of Article 165 of the TFEU).[2]
 
11. It follows from the Constitution that the right to freedom of education is a negative human right (i.e. a fundamental freedom) that does not include the right to education free of charge. Hence, no financial obligations of the state towards public or private educational institutions follow from the right to freedom of education outside the framework of compulsory primary education, which is specifically regulated by the second paragraph of Article 57 of the Constitution and which will be assessed below; the level of public financing falls entirely within the field of the legislature’s discretion, which is also what the National Assembly emphasises.
 
12. Therefore, by Decision U-I-68/98 the Constitutional Court decided, from the viewpoint of private education as a whole, which is not limited to only private primary schools, that the allegation of the parents of children who are sent to private schools and who must pay the tuition therefor, i.e. that they are in an unequal position compared to those whose children attend public schools, is unfounded. The legislature’s decision that the state would only fund public schools in which any parent can enrol their children falls within its discretion and is thus not inconsistent with the Constitution. When deciding, the Constitutional Court referred to the case law of the ECtHR, from which it follows that the state is not obliged to ensure, at its own expense, schools that are (or whose lessons are) in conformity with certain religious (or philosophical) beliefs of the parents.
 
13. Therefore, from the viewpoint of the right to freedom of education determined by the first paragraph of Article 57 of the Constitution, the alleged unconstitutionality of the challenged regulation of the financing of education is unfounded.
 
Review of the Public Financing of Compulsory Primary Education from the Viewpoint of the Second Paragraph of Article 57 of the Constitution
 
Compulsory Primary Education
 
14. Parents, guardians, and other persons who care for a child (hereinafter referred to as parents) must ensure that their child fulfils his or her obligation to attend primary education (Article 4 of the PSA). A child, who by enrolling in the first year of primary school obtains the status of a pupil, fulfils his or her obligation to attend primary education after nine years of schooling (the fourth paragraph of Article 3 of the PSA). Parents have at the same time the right to select the primary education of their children in a public or private school, or by means of home education (Article 5 of the PSA). Therefore, pupils can obtain compulsory primary education by following a state-approved primary education programme (the third paragraph of Article 9 of the OFEA) or, in the event of home education, by successfully passing the exam required for such a programme before an examining board (Article 90 of the PSA).[3]
 
15. Primary schools may start to carry out state-approved primary education programmes after they are listed in the register of primary schools maintained by the ministry competent for education (the first paragraph of Article 34 of the OFEA).[4] In order to be listed therein, they must fulfil the prescribed conditions regarding their premises and equipment, they must provide for the employment of professionals with the prescribed education, and have a state-approved programme (Article 34 of the OFEA). The state-approved primary education programme in public primary schools – which is, in accordance with the first paragraph of Article 10 of the OFEA, defined as public service – is determined by the Order on the Education Programme for Primary Schools (Official Gazette RS, Nos. 16/99, 12/11, 101/11, 24/12, 17/13, and 14/14), whereas in private primary schools the primary education programme is approved by the Expert Council of the Republic of Slovenia for General Education, once it establishes that it is in conformity with the objectives of the educational system of the Republic of Slovenia and that it ensures an equivalent educational standard (the second paragraph of Article 17 of the OFEA).[5] Providers of state-approved programmes of primary education are divided into public primary schools, private primary schools with a concession (the second paragraph of Article 10 of the OFEA), and private schools carrying out state-approved primary education programmes without a concession (the first paragraph of Article 86 of the OFEA).
 
16. In addition, primary education can also be carried out by schools for foreigners. The provisions of the OFEA do not apply thereto except for the provisions concerning the designation of state-approved programmes (the sixth paragraph of Article 1 of the OFEA). Schools for foreigners are not listed in the register of primary schools maintained by the ministry competent for education and their programmes are not state-approved, as the educational activities in these schools are not carried out in the Slovene language (the first paragraph of Article 3 of the OFEA).[6] Therefore, as regards the fulfilment of the obligation to attend primary school, pupils in such schools are in a position equivalent to that of pupils who are educated at home.
 
17. Statistical data indicate an overwhelming predominance of public primary schools, which is also what the petitioners and the Government emphasise. It follows from Eurostat data that, in 2011, 98.4% of all pupils at primary and secondary schools in the Republic of Slovenia were enrolled in public schools (the European average is 82%), 0.9% were enrolled in private schools co-financed by the state (the EU average is 10.2%), whereas 0.7% were enrolled in independent private schools (the EU average is 2.9%).[7] The register of primary schools shows that, in addition to the third petitioner, another two private providers are listed therein, i.e. 0.7% of all 458 providers.[8]
 
Public Financing of State-Approved Compulsory Primary Education Programmes
 
18. By Decision No. U-I-215/96, dated 25 November 1999 (Official Gazette RS, No. 101/99, and OdlUS VIII, 265, Paragraph 7 of the reasoning), the Constitutional Court decided that financing primary education from public funds means, above all, that financing must ensure the organisation of an appropriate network of primary schools and the functioning of primary education. The organisation of an appropriate network of primary schools is financed from the funds of local communities, by which expenses for the use of premises and equipment, [capital] maintenance expenditures for real property and equipment, and investments are covered (Article 82 of the OFEA). Since the petitioners do not challenge the regulation in accordance with which private schools are not entitled to receive funds for investments, capital maintenance expenditures, and equipment, public financing from the funds of local communities is not a subject of the petition at issue. The only point of dispute in this petition is the amount [i.e. the percentage] of state funds for the financing of primary education, i.e. for carrying out a state-approved primary education programme by providing salaries and other personal income, covering material costs, and financing the activities and tasks necessary for the performance of educational activities (Article 81 of the OFEA).[9]
 
19. The amount of state funds provided to individual providers of state-approved primary school education programmes varies. Private schools that were granted concessions prior to the entry into force of the OFEA are financed in the amount equivalent to that received by public schools in accordance with the concession agreement (Article 77 in conjunction with Article 85 and the second paragraph of Article 138 of the OFEA). After the entry into force of the OFEA in 1996, no [further] concessions were granted in the field of primary education, therefore only the Ljubljana Waldorf Primary School has remained fully financed by the state, as it was granted a concession as early as 1991.[10] Private schools that carry out state-approved primary education programmes without a concession are provided 85% of the funds the state provides for carrying out the public education programme (the first sentence of the second paragraph of Article 86 of the OFEA). Private schools that do not carry out state-approved primary education programmes (see schools for foreigners, Paragraph 16 of the reasoning) are not financed from public funds.
 
The Substance of the Human Right Determined by the Second Paragraph of Article 57 of the Constitution
 
20. The right to freedom of education determined by the first paragraph of Article 57 of the Constitution is limited at the primary education level. In accordance with the second paragraph of Article 57 of the Constitution, primary education is compulsory and is financed from public funds.[11] Since not only pupils benefit from compulsory primary education – an individual’s primary education namely also serves the public benefit[12] – the Constitution envisaged its financing from public funds. Thereby, pupils are ensured the right to compulsory primary education free of charge. Since the Constitution joined this constitutional right of pupils to their constitutional obligation, all compulsory primary education must be financed from public funds. In modern democratic societies, this obligation is interpreted narrowly, as it only refers to the statutorily determined substance of education programmes, and not also to the educational institutions that carry out these programmes. Therefore, the second paragraph of Article 57 of the Constitution guarantees pupils the right to attend compulsory state-approved primary education programmes free of charge regardless of whether they are carried out by entities of public or private law.
 
21. Hence, the Constitutional Court must assess whether there was an interference with the right of the petitioners’ [children and] pupils to attend a compulsory state-approved primary education programme free of charge.
 
22. Human rights may only be limited in such cases as are expressly provided by the Constitution and only in order to protect the human rights of others (the third paragraph of Article 15 of the Constitution). In accordance with the established constitutional case law, a human right or fundamental freedom may only be limited if the legislature pursues a constitutionally admissible objective and if the limitation conforms with the principles of a state governed by the rule of law (Article 2 of the Constitution), namely with the principle prohibiting excessive interferences by the state (i.e. the general principle of proportionality).
 
The Existence of a Constitutionally Admissible Objective Necessary to Limit the Human Right Determined by the Second Paragraph of Article 57 of the Constitution
 
23. The challenged regulation enables pupils to only attend free-of-charge compulsory state-approved primary education programmes at public schools and private schools with a concession, but not at private schools that carry out a public service without a concession. Therefore, the challenged statutory provision limits the right of pupils determined by the second paragraph of Article 57 of the Constitution, which requires the Constitutional Court to carry out a further assessment of whether the legislature pursued a constitutionally admissible objective in limiting this right.
 
24. It follows from the legislative file and the reply of the National Assembly that objective grounds, namely the difference in the education programmes of public and private schools, dictate a different scope of state financing of state-approved primary education programmes. The National Assembly deems it crucial that private school education programmes that become state-approved may also include subjects that public school programmes do not include or even must not include (e.g. the financing of religious activities).
 
25. The legislative regulation and data in the case file provide no basis for such a conclusion. The content of compulsory state-approved primary education programmes financed from public funds is namely uniformly determined for all providers of primary education. Such follows from the fact that it pursues the same educational goals [as the programme for public primary schools] (Article 2 of the OFEA) and the equivalent educational standards (Article 17 of the OFEA), equal conditions as regards professionals, premises, and equipment (Articles 33 and 104 of the OFEA), the equal manner of use of textbooks for the compulsory subjects determined by law (Article 21 of the OFEA), and the equal limitation of salaries (Article 89 of the OFEA).[13] Substantive differences in principles in accordance with which private and public schools operate as institutions only become apparent in supplementary education programmes, which are not financed from public funds and thus are not a subject of the petition at issue. The right to attend compulsory state-approved primary education programmes free of charge namely does not require that the state also finance the carrying out of higher standard or supplementary programmes by which private schools pursue their specific interests (Paragraph 14 of the reasoning of Decision No. U‑I‑68/98). Hence, the second paragraph of Article 57 of the Constitution requires public financing of the compulsory minimum of primary education, the content of which is uniformly determined, whereas supplementary educational content, which depends on the orientation of the values of the individual providers of primary education, is not covered by public financing.
 
26. The above-mentioned also follows from the introductory provisions of the Co‑financing Agreement, in accordance with which carrying out a state-approved primary school education programme (a public service) is co-financed from the budget of the state (Article 2), not including the financing of religious activities (Articles 3, 5, and 6 of the Agreement). Furthermore, from the enclosed Programme of the Nine-Year Catholic Primary School in St. Stanislav’s Institution, it follows that religious education (catechesis) is not included in the compulsory programme, but in the extended programme, which is not a subject of the Co‑financing Agreement (Point 2.1 of the Specific Part of the Programme).
 
27. The legislature did not state other constitutionally admissible grounds for the less than 100% state financing of state-approved primary education programmes carried out by private schools without a concession.
 
28. The reference of the National Assembly to the Commentary of the Charter of Fundamental Rights of the European Union[14] (OJ C 326, 26 October 2012 – hereinafter referred to as the Charter), in accordance with which Member States do not have to ensure that all forms of compulsory education are free of charge, is not relevant to the decision-making of the Constitutional Court. Namely, in accordance with Article 53 of the Charter, the right to have the possibility to attend, free of charge, a compulsory state-approved primary education programme determined by the second paragraph of Article 14 of the Charter must not be interpreted as restricting or adversely affecting the constitutional right to compulsory education free of charge, the substance of which was described in Paragraph 20 of the reasoning of the present Decision.
 
29. Since the legislature failed to demonstrate that the interference with the right to primary education free of charge is justified by a constitutionally admissible objective, not even the first condition required by the Constitution for a limitation of human rights [to be admissible] is fulfilled. The interference is thus evidently constitutionally inadmissible already on the basis of an assessment in accordance with the so-called principle of legitimacy (the third paragraph of Article 15 of the Constitution, therefore the Constitutional Court did not need to assess whether the interference is necessary, appropriate, and proportionate in the narrower sense. (Article 2 of the Constitution). Consequently, in the part that refers to carrying out state-approved primary education programmes, the first sentence of the second paragraph of Article 86 of the OFEA is inconsistent with the second paragraph of Article 57 of the Constitution (Point 1 of the operative provisions). Since the Constitutional Court abrogated the challenged provision due to the reasons stated above, it did not consider the other alleged unconstitutionalities.
 
30. Since the abrogation of the challenged statutory provision, which provides the legal basis for the 85% public financing of state-approved education programmes, would lead to an even greater interference with the constitutional right to attend compulsory state-approved primary education programmes free of charge, the Constitutional Court decided to adopt a declaratory decision instead. The legislature must remedy the established inconsistency with the Constitution within one year following the publication of the present Decision in the Official Gazette of the Republic of Slovenia (Point 2 of the operative provisions).
 
 
C
 
31. The Constitutional Court adopted this Decision on the basis of Article 48 of the CCA, composed of: Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič – Horvat, Dr Ernest Petrič, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. The decision was reached by five votes against four. Judges Jadek Pensa, Korpič – Horvat, Pogačar, and Sovdat voted against. Judge Zobec submitted a concurring opinion. Judges Korpič – Horvat and Jadek Pensa submitted dissenting opinions.
 
 
Mag. Miroslav Mozetič
President
 

[2] See V. Trstenjak and M. Brkan, Pravo EU, Ustavno, procesno in gospodarsko pravo EU [EU Law: Constitutional, Procedural, and Commercial EU Law], GV Založba, Ljubljana 2012, p. 215.
[6] Exceptions apply to the areas where national minorities reside (the second and third paragraphs of Article 3 of the OFEA). For more detail on primary schools without state-approved programmes, see M. Šimenc et al., Zasebne šole in vrtci [Private Schools and Kindergartens], in Bela knjiga o vzgoji in izobraževanju v Republiki Sloveniji [White Paper on Education in the Republic of Slovenia], Ministrstvo za šolstvo in šport 2011, p. 436.
[8] These are the Waldorf Primary School and the Montessori Institute – Child Development Support Centre. See M. Šimenc et al., op. cit., p. 440.
– salaries with social contributions and taxes included, and other personal income [received] on the basis of the systematisation and filling of employment positions in accordance with the law, regulations and standards, the methodology for determining the amount of funds per attendee of education, and the collective agreement; salaries with social contributions and taxes included, and other personal income of trainees, namely for carrying out the compulsory programme, remedial education, additional classes, half an hour of other forms of individual and group assistance per class, two hours of extracurricular activities per class, the school’s nature studies programme, after-school extended stay from the first to the fifth grades; as well as funds for carrying out morning care for first grade pupils (the first indent of the first paragraph of Article 81 of the OFEA);
– funds covering material costs accrued in accordance with standards and regulations for carrying out primary school education, i.e. the refund of employees' expenses in accordance with the collective agreement, the purchase of teaching aids and educational tools characterised as small inventory, consumables for preparing and carrying out lessons, compulsory excursion expenses, care for children and young people with special needs in accordance with the decision on their [vocational] guidance, the transport of pupils with special needs on off-school days, and the transport of pre-school children (the fourth paragraph of Article 81 of the OFEA);
– funds for activities and tasks necessary to carry out the educational activities listed in the OFEA; inter alia, the following in particular refer to primary education: funds for the preparation of textbooks and teaching aids and for subsidising the price thereof, funds for subsidising low-print-run textbooks, funds for school examinations at the end of individual terms in primary schools, funds for pupils’ competitions and for special types of work with talented pupils, funds for the extracurricular activities of pupils, funds for subsidising food for pupils, funds for teaching the Slovene language to foreigners enrolled in regular primary education, funds for the transport of primary school pupils, and funds for the protection of commuters whose route to school is dangerous due to the presence of large predators (the seventh paragraph of Article 81 of the OFEA);
– in addition, the primary schools of the national communities are also provided funds for investments from the budget of the state (the fifth paragraph of Article 81 of the OFEA).
[12] In fact, the public interest in limiting an individual's freedom at the level of primary education has been established on Slovene territory without interruption ever since the Enlightenment. In 1774, Maria Theresa enacted the General School Regulation and introduced the general obligation of children aged 6 to 12 to attend school. Once translated in 1777, the Regulation became the first official school law on Slovene territory. See § 12 Allgemeine Schulordnung für die deutschen Normal-, Haupt- und Trivialschulen in sämmtlichen Kayserl. Königl. Erbländern. At the time, Paragraph 13 of the General School Regulation read as follows: “What we truly desire is that the maternal care of our state for the education of youth, the importance of which for the general welfare is very significant, should not, in any event, fail due to the indulgence of parents or foster parents.” It was compulsory for pupils to prove, by an authentic instrument, that they had mastered the required subjects, however they were not limited in their selection of the manner of schooling. Parents who had an interest in and the resources to afford private teachers were namely able to provide their children education outside the primary school types envisaged by the Regulation (i.e. normal schools, main schools, and so-called “trivial” schools). The regulation was stricter during the time period from the end of the Second World War until the independence [of Slovenia], when the right to freedom of education was not limited only by the requirement to obtain a minimum educational standard but also by the requirement to attend schools established by the state. The Constitution of the People’s Republic of Slovenia (Official Gazette PRS, No. 4A/47 – hereinafter referred to as the Constitution PRS) namely expressly recognised the public interest in ensuring primary education. In order to raise the general culture of the populace, the state ensured that schools and other educational institutions were accessible to all classes of people (the first paragraph of Article 37 of the Constitution PRS). The state did not allow for the free selection of primary schools, as all schools were owned by the state, and only a law could allow the establishment of private schools, whose activities were under state supervision (the third paragraph of Article 37 of the Constitution LRS). In practice, this only entailed permission to establish religious schools, as religious schools that prepared the next generation of priests were free, albeit under the general supervision by the state. For more on this subject, see E. Protner: Splošnoizobraževalne zasebne šole na Slovenskem med preteklostjo in sedanjostjo, Sodobna pedagogika št. 5 [Private General-Educational Schools on the Slovene Territory between the Past and the Present, Modern Pedagogy No. 5] (2010), p. 67. See also J. Ciperle, A. Vovko, Šolstvo na Slovenskem skozi stoletja [Education on the Slovene Territory Throughout the Centuries], Slovenski šolski muzej, Ljubljana 1987, p. 39.
[13] The amount to which state-approved primary education programmes are financed from the budget of the state is determined in accordance with the criteria stated by Article 81 of the OFEA, which are determined in further detail by the Rules on Norms and Standards for the Implementation of the Primary School Programme (Official Gazette RS, Nos. 57/07, 65/08, 99/10, and 51/14). For instance, it follows from Agreement No. 3311-11-041002, dated 16 December 2011, on the Co-Financing of the Alojzij Šuštar Primary School in St. Stanislav’s Institution, Ljubljana, for the 2011‑2012 School Year by the Ministry of Education and Sport (hereinafter referred to as the Co-Financing Agreement), which the petitioners enclosed, that the amount of state funds is based on the number of individual classes, and on such basis the percentage of employment positions for lower and higher primary school [the latter being comparable to lower secondary school] teachers is determined, as well as for teachers in charge of remedial education and additional classes, for teacher’s aides in the first year, for teachers in extended stay classes, for professional caregivers in morning care groups, etc.
 
 
U-I-269/12
24 December 2014
 
Concurring Opinion of Judge Jan Zobec
 
 
Decision No. U-I-68/98 
 
2. All three paragraphs of Article 57 of the Constitution regulate the same field of a person’s activities – education and schooling and the role of the state in this matter. However, the paragraphs are not structured in the same manner and they are also not directed towards the same level of the regulated subject. While the first and third paragraphs are general and include all forms and levels of education, the second paragraph is specific and focused – it only refers to primary education. The first paragraph entails a freedom that refers to education in its entirety, to all forms and levels of education. On the one hand, it also includes the freedom to establish private schools, whereas it does not encompass the right to education entirely free of charge. However, in Decision No. U-I-68/98, the Constitutional Court stated that “if the constitutionally guaranteed plurality of the providers of education is to be truly implemented, the state is also bound to create financial possibilities for such” (Paragraph 21 of the reasoning). Hence, if the freedom to establish private schools (primary schools, secondary schools, colleges, universities, academies, etc.) is an inseparable part of freedom of education, i.e. if the first paragraph of Article 57 of the Constitution ensures the existence of primary education as a constitutional institute,[1] then what the Constitutional Court stated in the mentioned Decision is logical, namely that the state must ensure the actual existence of such [primary education], which means that it must ensure its (co-)financing (Paragraph 21 of the reasoning). At the same time, the Constitutional Court answered the question regarding the constitutionally necessary (i.e. compulsory, imposed) amount in which the state is to contribute to the existence of private education as such (i.e. educational institutions of all types and levels). It stated the following: “Certainly its contribution depends on how much it is able to contribute; however, the support must be such so as to enable the actual existence of private schooling.” (ibidem).
 
Differentiation
 
3. The above-stated understandably applies at a general level, i.e. at the level determined by the first paragraph of Article 57 of the Constitution. Such in turn entails that the position stating that the amount to which the state should contribute to the financing of education depends on its capabilities, which refers to this general level and which also was stated in such context, cannot be transposed to instances of primary education based on state-approved programmes. For such instances, the second paragraph applies, which is specific and refers exclusively to primary education. Unlike the first and third paragraphs of Article 57 of the Constitution, which are general and which refer to the entire educational subsystem, this paragraph, which is decisive for the decision in the case at issue, is narrowly focused on primary education. Therefore, the parts of the reasoning of Decision No. U-I-68/98 cited in the preceding paragraph should be understood in such light, including the last sentence of Paragraph 21, where the Constitutional Court concluded as follows: “The legislature's decision that the state would fully fund only public schools in which any parent can enrol their children is within its discretion and is thus not inconsistent with the Constitution.”
 
4. I therefore concur with the [legal] theory that states the following: “When primary education is at issue, one cannot concur with the position of the Constitutional Court […] that the legislature’s decision that the state would fully fund only public schools falls within the legislature’s discretion and is thus not inconsistent with the Constitution.”[2] This commentator on the Constitution then proceeds as follows: “In such an event, both constitutional rights (regarding which the Constitution does not determine a statutory reservation) must remain intact, i.e. the right to freedom of education determined by first paragraph of Article 57 [of the Constitution] and the right of every primary school with a sufficient number of pupils to be financed from public funds, considering that primary education is compulsory (the second paragraph of Article 57).” The author thus logically concludes as follows: “Such entails that the state must ensure the financing of primary schools […] without discrimination, i.e. according to equal criteria that apply to both public and private primary schools.”[3] The meaning of Paragraph 21 of the reasoning of Decision No. U-I-68/98, in particular that of its last sentence, cannot be taken out of the general context, which refers to education as a whole and in which it originally was, and transplant it into another, entirely specific, context that refers exclusively to primary education.
 
The Right to Primary Education Free of Charge
 
5. The right to primary education free of charge logically follows from the literal interpretation of the second paragraph of Article 57 of the Constitution. Namely, if the second paragraph of Article 57 of the Constitution determines that primary education is compulsory and that it shall be financed from public funds, it is clear that the subject of regulation is education and not those who provide education. The Constitution imposes the obligation to [provide and attend] primary education and not the obligation to [provide and attend] such education only in public schools; right after that, in the same sentence, the Constitution determines that such education shall be financed from public funds. The public-spiritedness of the Constitution in terms of providing public financing benefits the end-users, i.e. pupils (and their parents), who are the direct beneficiaries of education, and not the providers of education, which can be entities of either private or public law. Hence, education as such is financed, and not (directly) those who provide education. The providers are merely financed as a means, as the providers of educational activities, i.e. they are financed indirectly, and not as if [their financing in itself] were the objective. The reason for such financing is education, and the objective thereof is to ensure individuals at least primary education.
 
6. This being so, it must not be relevant who the provider of education is. The only thing that matters is ensuring education based on state-approved programmes. Had the constitution-framers had anything else in mind, the wording of Article 57 of the Constitution would have been different. It would have read, for instance, “primary education in public schools shall be financed from public funds,” or the statutory reservation technique would have been used: “Primary education shall be financed from public funds, subject to conditions provided by law.” Therefore, it does not follow from the wording of the second paragraph of Article 57 that financing the provision of primary education from public funds is subject to any limitations. The constitutional provision determining that primary education shall be financed from public funds is indivisible and thus real, applicable, and effective in its entirety and unconditionally.
 
The Meaning of [a Service] Free of Charge
 
7. This is understandable. Namely, if primary education is imposed by the Constitution, it is right that it be financed from public funds. For such reason, also the first paragraph of Article 26 of the Universal Declaration of Human Rights determines that education must be free, at least in the elementary and fundamental stages.[4] If the Constitution limited an individual’s freedom of education by determining that not only state-approved education programmes must be followed but that also only public primary schools must be attended, then the state would be obliged to fully fund only public schools. The third paragraph of Article 37 of the 1947 Constitution PRS contained such a regulation. When the level of protection of an individual’s freedom expanded and individuals merely remained obliged to follow state-approved education programmes, i.e. when in the foreground, as the highest constitutional value, free and responsible individuals replaced the class-based state and its political ideology, at that point, by the nature of the matter, also the degree of public financing changed. The latter is at present no longer limited to providers of primary education with a public-law (“state”) status, but only to the substance of state-approved education programmes.
 
8. The position that financing the provision of primary education from public funds is subject to any limitations would thus not be consistent with the spirit of the Constitution and with the fundamental conceptual starting point of a state based on the rule of human rights or, to use the words of A. Teršek, a “foundational democracy.” The above-mentioned final sentence of Paragraph 21 of the reasoning of Decision No. U‑I‑68/98, namely that “[t]he legislature's decision that the state would fully fund only public schools where all parents can enrol their children […] is within its discretion and is thus not inconsistent with the Constitution” thus cannot be understood separately and taken out of the general context in which it was stated. This context is the first paragraph of Article 57 of the Constitution, which covers all types of education. When primary education is at issue (this is the context of the second paragraph of Article 57 of the Constitution), the duties of the state are specific. In that context, the state is not only obliged to respect freedom of education and to create possibilities for its citizens to acquire appropriate education. Primary education does not only concern the duty of the state “to enable individuals non-discriminatory access to the existing types and levels of education, and to offer them certain minimum quality standards of such education.”[5] Since primary education is constitutionally imposed, also the commitment of the state to finance such education must be constitutionally ensured. It logically follows from the constitutional duty of pupils to attend state-approved education programmes that all such state-approved education programmes must also be equally financed. Furthermore, from the nature of the matter, there follows from the freedom of education the freedom of individuals to choose which schools – private or public – they will attend, and not the freedom of the legislature to instead make the choice by itself and thus, even if only indirectly, coerce these individuals to enrol in public schools. In the case at issue, wherein the financing of primary education is assessed, any reference to the mentioned final sentence of Paragraph 21 of the reasoning of Decision No. U-I-68/98 taken out of context could thus convey an undertone message that the Constitution does not proceed from the freedom of individuals but from the freedom of the legislature, implying that it is a matter of its imperious will whether only public schools will be provided full funding. The fact that, given the above, all of that would have been severely unconstitutional, does not require specific proof.[6] Merely the first paragraph of Article 15 of the Constitution suffices, in accordance with which human rights and fundamental freedoms are exercised directly on the basis of the Constitution.
  
 
Marginal Hypothetical Second Thoughts
 
9. In fact, human rights can be limited, however only in such cases as are provided by the Constitution and in order to protect the human rights of others (the third paragraph of Article 15 of the Constitution). The legislature must then deal with two tests – the test of legitimacy, where it must prove to the Constitutional Court the existence of a constitutionally admissible objective in limiting a human right, and then (if it passes this test) also the strict test of proportionality, whereby the Constitutional Court assesses whether the limitation of a human right is in conformity with that principle of a state governed by the rule of law that prohibits excessive interferences by the state (i.e. the general principle of proportionality). In the case at issue, the legislature failed to demonstrate that the first condition required by the Constitution to allow a limitation of a human right was fulfilled. Therefore, the Constitutional Court did not have to carry out the strict test of proportionality.
 
10. However, even if we deemed that the legislature had the intention to protect, by the challenged measure, the (developed) network of public primary schools and the public capability to maintain them, and even if such objective were constitutionally admissible, it would have soon become manifest that it would not have passed the strict test of proportionality. It would have stopped at least at the necessity test. The network of public primary schools is namely already protected by the first paragraph of Article 87 of the Organisation and Financing of Education Act (Official Gazette RS, Nos. 16/07 – official consolidated text, 36/08, 58/09, 64/09 – corr., 65/09 – corr., and 20/11), which states as follows: “Notwithstanding Article 86 of the present Act, a private school is not entitled to receive public funds if due to enrolment in the private primary school the existence of the only public music school in the same school district is endangered or if it carries out its activities contrary to the fifth paragraph of Article 7 of this Act.”
 
11. Not even the excuse (objective) that public primary schools are being closed not only due to the lower number of children but also due to the lack of public funds could have justified the challenged measure. Namely, the reduced financing of state-approved primary education at private schools would not have achieved the objective [to prevent such]. If the state enabled more primary schools to be operated by private providers, [more] public funds for carrying out education programmes would become available due to a decrease in investment and maintenance costs, all of which burden private schools or their founders. Therefore, such a measure would not hinder the network of public primary schools; on the contrary, it would strengthen it and it would stimulate its quality. It would namely entail saving public funds that otherwise would be spent on investments in and maintenance of the public schools network. The measure of limiting the financing thereof is thus also not appropriate.
 
Jan Zobec
    Judge
 

[1] See L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 582.
[2] See ibidem, p. 583.
[3] Ibidem.
[4] Equal recommendations are stated in Article 13 of the International Covenant on Economic, Social, and Cultural Rights and in Article 28 of the Convention on the Rights of the Child.
[5] See Paragraph 14 of the reasoning of Decision No. U-I-68/98, which refers and applies to all types and levels of education.
[6] Even though, if I may summarise at this point the core of foundational democracy, as introduced and interpreted by A. Teršek: “[s]tate power is […] merely autonomous and supreme to a greater or lesser degree as regards its territory and inhabitants, and it is not in any way genuinely sovereign. State power serves the objective of institutionally ensuring, protecting, and implementing fundamental human rights and [fundamental] freedoms, as well as the fundamental principles of a state governed by the rule of law, democracy, equality, respect, dignity, etc.” He continues: “Slovene democracy must be spoken of as a constitutional democracy and a foundational democracy: a democracy of fundamental rights, freedoms, and principles. Emphasis on the quality of constitutionality, constitutionalism and human rights, freedoms and fundamental principles of the rule of law, as well as sociality and democracy are namely of essential importance, and not perhaps the political will (arbitrariness) of the parliament or the will (arbitrariness) of the majority of people entitled to vote. In the Republic of Slovenia, fundamental human and constitutional rights and freedoms, as well as constitutional principles (of a state governed by the rule of law, the rule of law, sociality, and democracy) are sovereign. See A. Teršek, Teorija legitimnosti in sodobno ustavništvo [The Theory of Legitimacy and Modern Constitutionalism], Univerzitetna založba Annales, Koper 2014, pp. 407, 408.
  
U-I-269/12
23 December 2014
 
 
Dissenting Opinion of Judge Dr Dunja Jadek Pensa,
Joined by Judge Dr Jadranka Sovdat
 
I
 
1. There is an established position that in the event of the constitutional review of a regulation, the operative provisions and reasoning of the decision form a whole, due to which not only the operative provisions are binding, but also the grounds and positions contained in the reasoning.[1] The interpretation adopted by the Constitutional Court entails a legally binding interpretation of the Constitution.[2] Moreover, it is actually embedded therein. The addressees must respect it and come to terms therewith.[3] [4] It is precisely due to this reason that they can justifiably rely thereon when forming interpersonal relations. Predictability contributes to the formation of a state governed by the rule of law, as legal certainty forms an essential element of law and of a state governed by the rule of law (Article 2 of the Constitution). In such manner, the interpretation and positions of the Constitutional Court contribute to the stability of relations in society and the harmony between those who think differently, all of which allows for progress to be made. At this point, let me also draw attention to the importance of doctrines, standards, and criteria that form (or should form) an inseparable part of each constitutional review. The decisions of the Constitutional Court and the interpretation of the Constitution on which they are based thus constitute the starting point for the further development of constitutional thought and the formation of new positions, and, above all, for the further regulation and development of relations between people in all fields of life. The significance of an adopted interpretation of the Constitution is thus much more far-reaching than the resolution of the concrete dispute (the concrete case) that [required and] triggered the interpretation.
 
2. Without trust in the Constitutional Court it should not be expected that its decisions will be widely accepted and thus have a connective effect in society, as a means that should overcome each particular dispute in society regardless of its depth and the wrath it sowed therein. I find it difficult to imagine building trust in the Constitutional Court if this Court does not observe its own precedents, including the positions, doctrines, standards, and criteria that are an inseparable, integral part thereof. Therefore, new cases in which the Constitutional Court assesses the constitutional conformity of a regulation or a position of a court are not in any way, as I understand it, an opportunity to “indefinitely” re-argue its previous positions. However, it must be taken into consideration that the stare decisis rule is not an absolute one and that constitutional law would be very unattractive if this rule were assigned such effects.[5] Therefore, positions that have already been adopted cannot (simply) be attributed the meaning of an invariant constant in the formula for resolving a concrete constitutional dispute.[6] Nevertheless, it also should not be overlooked that it is precisely this rule that requires maximum diligence when analysing the already adopted positions that follow from the decisions of the Constitutional Court, namely to enable new positions adopted in new cases to be in conformity with previous positions or to enable them to be upgraded or perhaps even modified, in conformity with the development of legal thought, on the basis of convincing constitutional reasons, of course.[7] In my belief, this is the only manner that enables, in the event of an upgrade to positions, standards, and criteria, or even a change in already adopted positions, the reestablishment of harmony between constitutional arguments and thus of the dominance of the power of arguments over the argument of power. And it is the power of arguments (not the argument of power) that is the essential element of the functioning of the judicial branch of power and is key to building trust therein.[8]
 
3. It is always demanding to analyse constitutional case law. It must be taken into consideration that the decisions of the Constitutional Court resolve conflicts between constitutional values and principles, between protected interests and needs, and between individual provisions of the Constitution. The interpretative role lies precisely in the fact that it harmonises inconsistencies and carves order out of uncertainty and paradox.[9] Irrespective of how one understands individual constitutional freedoms/rights, the relation between them, and the relation towards other constitutional values in the entire structure of the Constitution, the substance of individual freedoms/rights, and in particular of their constitutionally admissible limitations, cannot develop in isolation from others. The mere wording of the Constitution expressly indicates that (e.g. the third paragraph of Article 15 of the Constitution).
 
4. The analysis of older decisions of the Constitutional Court must be comprehensive, otherwise I think it is meaningless. Both because of the characteristics of the resolution at the constitutional level of conflicts provoked by the constitutional dispute, and also because the context is always important. Words by and of themselves are not true.[10] If one reads them as being unequivocal, without deeper insight, they conceal ideas rather than communicate them.[11] Meanings are not embedded in words but emerge and are perspicuous in the light of the background conditions of intelligibility.[12] The analysis thus must comprise, I believe, also all the circumstances of the case that was already considered.
 
5. Both in the case from which follows Decision of the Constitutional Court No. U‑I‑68/98, dated 22 November 2001 (Official Gazette RS, No. 101/01, and OdlUS X, 192), and in the case at issue, the petitioners (natural persons) drew attention to the substantively equal statutory provision on the scope of the public financing of the activities of private schools, which also refers, inter alia, to financing the provision of state-approved primary education programmes.[13] In the case at issue, precisely this provision was challenged, because it is allegedly, according to the petitioners (natural persons), the basis for paying tuition in private schools and thus the basis for an inadmissible inequality before the law. In the case that resulted in Decision No. U-I-68/98 as well this provision was referred to in the petition to emphasise the allegation of an inadmissible inequality before the law (and of discrimination based on religious beliefs). Consequently, I think that both cases are essentially linked by these two circumstances from the legal and factual points of view.
 
6. I concur with the majority decision that the position from Decision No. U-I-68/98 in accordance with which “[t]he legislature's decision that the state would fully fund only public schools in which any parent can enrol their children falls within its discretion and is thus not inconsistent with the Constitution”[14] is not limited only to private primary schools.[15] However, does the mere fact that this position is not limited only to private primary schools suffice in order for this position to be paid no attention at all when situations are at issue where the financing of primary schools is concerned, i.e. the situations referred to in the second paragraph of Article 57 of the Constitution? In my opinion, this question should be answered in the negative. Otherwise, as I understand, it follows completely unambiguously from the wording of Decision No. U-I-68/98 that the mentioned position also refers to the legislature's decisions concerning differences in the financing of private primary schools. The Constitutional Court namely stated that in the reasoning it would use the generic term school to designate primary schools, general university-preparatory secondary schools [i.e. gymnasiums], as well as vocational and technical schools.[16] I cannot understand the phrase public schools in the cited position in any other way except as to signify (inter alia) public primary schools. Unless I were to claim that the Constitutional Court erred when using generic terms that the Court itself had defined. And let me draw attention to the fact that the National Assembly and the Government referred to Decision No. U-I-68/98 and took into consideration, when presenting their opinions, that the cited position also applies to instances of the financing of primary schools. The Government, which in contrast to the National Assembly concurred with the petitioners, stated new constitutional arguments in its opinion, regarding which the Constitutional Court did not adopt a position in Decision No. U-I-68/98 and which allegedly significantly affect the assessment.
 
7. The position in accordance with which it is “[t]he legislature's decision that the state would fully fund only public schools in which any parent can enrol their children is within its discretion and is thus not inconsistent with the Constitution” is, as I understand it, one of the foundational positions in Decision No. U-I-68/98. Why? Because, with this position, the Constitutional Court substantiated the (negative) answer to the allegations of the petitioners (natural persons) who, as parents of children who attended a private school without a concession, were, due to the different financing of the activities of such schools, in a different – i.e. worse – position, as they had to pay tuition. The Constitutional Court assessed these allegations from the viewpoint of the second paragraph of Article 14 of the Constitution, but replied thereto from the perspective of the duty of the state concerning the allocation of public funds under Article 57 of the Constitution.[17] I also cannot understand the mentioned position in any way other than as expressing the self-restraint of the Constitutional Court as regards the decisions of the legislature concerning the allocation of public funds for financing schools that differentiate between public and private schools without a concession, even if its decisions refer to the public financing of state-approved programmes of compulsory primary education. Otherwise, the Constitutional Court would not have adopted the position in accordance with which such decisions fall within the legislature’s discretion. If they did not, the legislature’s discretion would be limited by constitutional requirements, and its decisions that differentiate between the public financing of public and private schools would be subject to a constitutional review by the Constitutional Court. This is all the more true if the matter concerned a differentiation in the implementation of a constitutional right. Therefore, I see a decisive reason in the mentioned position. It was namely essential to negate the alleged inconsistency of the OFEA/96 with the right to equality before the law and thus, at the same time, to negate the constitutional importance of the fact that the petitioners had to pay tuition for the schooling of their children because they chose that they would attend a private primary school without a concession – both of which were the subject of the review of constitutionality in Decision No. U-I-68/98.
 
8. I find it obvious that the mentioned position, which, it should be remembered, also applies to the financing of primary schools, implies that the wording of the second paragraph of Article 57 of the Constitution does not incorporate a positive constitutional right, i.e. the right of pupils to attend “free-of-charge” compulsory state-approved primary education programmes regardless of whether they are carried out by entities of public law or private law.[18] The [above-mentioned] position is incompatible with the right of pupils that is understood in such a manner, as the statements from the [expressed] position and the right that is understood in such a manner exclude one another. Namely, the right with such content limits the legislature’s discretion directly in accordance with the Constitution (i.e. the first paragraph of Article 15 of the Constitution). In fact, the [expressed] position also does not negate the right to attend “free of charge” primary education programmes, which is derived from the second paragraph of Article 57 of the Constitution. It merely does not protect all interests. It provides, as I understand it, the right to non-discriminatory access to “free-of-charge” primary education in the state that is carried out in public schools.
 
9. To sum up, having analysed Decision No. U-I-68/98 and the cited position in its context, I could not understand this position otherwise than that it also refers to the legislature’s decisions concerning the financing of primary schools. Therefore, my opinion was that this position should have been taken into account when deciding on the case at issue. Although adopted positions should not be blindly followed, they should also not be disregarded in the assessment. Such is, I believe, the interpreter’s duty. I know from my own experience that an analysis always triggers a process of evaluating already adopted positions. It is, of course, not excluded that the result of such evaluation can be the interpreter’s disagreement with the position. However, no matter how deep the disagreement is, I believe that that position, although disputable, must remain the starting point for further consideration and the development of legal thought. Such an approach, I believe, is required by the prerequisite of respect for already adopted decisions. However, on the personal level of the interpreter, a new process begins. This concerns placing [the issue] in the broader society, which includes the past, past disputes, solutions, deficiencies, and mistakes, as well as the present, which shares the fate of the past and which takes into account that a constitutional decision entails [the result of] a search for the implementation of a national judgment and intent.[19]
 
 
II
 
10. The wording of the second paragraph of Article 57 of the Constitution reads as follows: “Primary education is compulsory and shall be financed from public funds.” In accordance with the literal interpretation, this provision determines two obligations. The first one in relation to individuals, and the second one in relation to entities that have access to public funds (the state, a local community – either of which are hereinafter referred to as the community). In relation to individuals, the obligation of compulsory primary education limits their freedom of education guaranteed by the first paragraph of Article 57 of the Constitution. In relation to the community, the second constitutional requirement imposes on it a concrete obligation that is financed from public funds. Such constitutional requirement is fulfilled by funding that provides for primary education. It is clear that both constitutional requirements must be taken into account when regulating this matter by law. By prescribing both compulsory primary education and its financing from public funds, the Constitution underlines the special importance of this segment in the state. This is an objective constitutional value. At today’s stage of development, the prescription of compulsory primary education seems anachronistic due to the generally accepted significance of education. In any case, the Constitution determines that parents have (inter alia) the right and duty to educate their children (the first paragraph of Article 54 of the Constitution), while children are ensured special protection in the Constitution, namely (inter alia) protection from economic and social exploitation (the second paragraph of Article 56 of the Constitution). However, I would like to stress that the wording of the second paragraph of Article 57 of the Constitution does not mention a right but imposes two obligations in relation to two different subjects.
 
11. In contrast to the third paragraph of Article 57 of the Constitution, the second paragraph of Article 57 of the Constitution imposes a completely concrete obligation of the community relating to the creation of objective possibilities to obtain primary education, i.e. public funding for such purpose. And it is obvious that such funding benefits all those to whom the obligation to attend primary school is addressed, because it provides for the fulfilment of their needs and interests in this field of life. The constitutionally imposed duty of the community provides a concrete, objective basis, which is beneficial for them, and an objective value – i.e. primary education in the state. At this point, a question arose in my mind whether the fact that the funding benefits all those to whom the obligation to attend primary school is addressed really suffices, alone and of itself, for an individual right to be formed that includes the claim of beneficiaries that the community, for every individual in particular, is to finance a state-approved primary education programme, irrespective of who carries out that programme, which [is an aspect that] would also include the protection of his or her interest to select a certain provider of a state-approved programme of primary education that is an entity under private law.
 
12. I am of the opinion that in searching for the answer to this question one should distinguish between the constitutionally imposed positive obligations of the state (the community), which contribute to the implementation of a certain positive constitutional value, and the constitutionally guaranteed positive rights of individuals, which guarantee the holders of these rights, directly on the basis of the Constitution, that the state (the community) will fulfil a certain obligation that it has towards them. The Constitution namely distinguishes between the two categories. For instance, if it grants a positive right, this is clearly evident from the text (cf., e.g., Article 30 of the Constitution). It is namely an essential characteristic of positive rights that the Constitution itself guarantees individuals the fulfilment of a certain task directly on its basis.
 
13. The duty to provide financing from public funds and the duties of the state referred to in the third paragraph of Article 57 of the Constitution form a solid guarantee of the implementation of the objective value – i.e. primary education in the state. The possibilities to obtain primary education financed from public funds are thus an integral part of the legal order and the reality of our society. However, as this concerns an objective value, I believe that the significance of the allegations of the National Assembly comes to the fore in such context, namely that the community is under no obligation to provide support to educational institutions that serve specific, religious, or philosophical beliefs. The same holds true for the warnings of the National Assembly relating to the given financial framework, i.e. the financial capacities of the state or local communities. The constitutional importance of these allegations, unfortunately, was not recognised.
 
14. It seems to me that the majority decision simply took as proven all that was yet to be proven. Namely, that the second paragraph of Article 57 of the Constitution – although it does not mention any right – regulates a positive human right, without even devoting prior attention to differentiating between positive human rights, on the one hand, and the entitlements and expectations of individuals derived from constitutionally imposed duties of the state (the community) in the field of the implementation of objective constitutional values, which are designated by the term “rights”, on the other. I believe that this is a simplification of the interpretation of the Constitution. Only an answer to the roughly presented doctrinal dilemmas would, in the context of the second paragraph of Article 57 of the Constitution, enable, as I understand it, a substantive assessment and the final formation of the substance of the right at issue that would also include the needs/requirements of organised society in the field of primary education, which are, as I understand it, hardly concordant with the supreme will of individuals.
 
15. Conclusion. As I understand it, the majority decision does not provide an answer to this question. This is precisely why I find a substantive assessment to be lacking. Furthermore, I cannot rid myself of the impression that a comparison of the underlying position in the majority decision regarding the human right to primary education “free of charge” with the cited position from Decision No. U-I-68/98 leads to an understanding that the two positions are in opposition to each other. The reasons due to which no attention was paid to the position from Decision No. U-I-68/98 that I discerned from the majority decision were, in my view, neither correct nor sufficient. I could not vote for the majority decision, in which I found the reasons for the above issue (inter alia) lacking.
 
 
Dr Dunja Jadek Pensa
            Judge
 
 
                                                                                             Dr Jadranka Sovdat
                                                                                                         Judge
 

[1] Cf. Decision of the Constitutional Court No. Up-2597/07, dated 4 October 2007 (Official Gazette RS, No. 94/07, and OdlUS XVI, 108).
[2] It follows from the constitutional case law that its constitutionally defined position authorises the Constitutional Court to interpret constitutional provisions in a legally binding manner when exercising its competencies. Cf. Decision of the Constitutional Court No. U-I-163/99, dated 23 September 1999 (Official Gazette RS, No. 80/99, and OdlUS VIII, 209).
[3] As to the legislature’s obligation to respect decisions of the Constitutional Court, cf., e.g., Decision No. U-I-114/95, dated 7 December 1995 (Official Gazette RS, No. 8/96, and OdlUS IV, 120), and Decision No. U-I-114/11, dated 9 June 2011 (Official Gazette RS, No. 47/11, and OdlUS XIX, 23).
[4] As to the binding nature of positions contained in decisions of the Constitutional Court, cf. Order of the Constitutional Court No. Up-424/06, dated 22 October 2009 (OdlUS XVIII, 93).
[5] H. J. Powell, Constitutional Conscience, The Moral Dimension of Judicial Decision, University of Chicago Press, Chicago 2008, p. 99.
[6] Cf. ibidem, p. 100.
[7] Based on the joint opinion of Justices O'Connor, Kennedy, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), this is my summary of the reasons that have been formed in the case law of the Supreme Court of the United States that may justify a modification of a precedential decision: (1) if the decision has proven to be unworkable; (2) if the modification does not cause serious injustice among the people who relied on the decision and formed their life accordingly; (3) if, due to the development of the legal thought, the adopted position has become anachronistic and thus little appreciated among people; (4) if its essence has become obsolete due to a change in the facts that supported the earlier position.
[8] Further on, it follows from the reasoning of the joint opinion of Justices O'Connor, Kennedy, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey before the Supreme Court of the United States, ibidem, that, in particular in cases by which a fundamental dispute in society is resolved, one must keep in mind that particularly convincing reasons are necessary in order to change the position. Namely, the court would otherwise be exposed to justified criticism that it surrendered to political pressure, which would be in stark contrast to the trust on which the authority of the court is based.
[10] F. Erich, Umetnost življenja [The Art of Being], Mladinska knjiga, Ljubljana 2003, p. 24.
[11] Ibidem, p. 25.
[12] Don't Know Much about the Middle Ages: Posner on Law and Literature. In: Doing What Comes Naturally, p. 295; cited after T. Martino, Trademark Dilution, Oxford University Press, Oxford 1996, p. 87.
[13] The second paragraph of Article 86 of the Organisation and Financing of Education Act (Official Gazette RS, Nos. 12/96 and 23/96 – corr., hereinafter referred to as the OFEA/96) read as follows: “Private schools are entitled to receive, for each pupil or student, 85% of the funds that are provided by the state or a local community for salaries and material costs for the pupil or student in a public school.”
[14] Cf. Paragraph 21 of the reasoning of Decision of the Constitutional Court No. U‑I‑68/98.
[19] Cf. H. J. Powell, Constitutional Conscience, The Moral Dimension of Judicial Decision, University of Chicago Press, Chicago 2008, p. 99.
 
 
           
U-I-269/12
24 December 2014
 
Dissenting Opinion of Judge Dr Etelka Korpič – Horvat
 
I voted against the adopted decision because I assessed that, by its decision, the Constitutional Court interfered with the legislature’s competence.
 
1. The second paragraph of Article 57 of the Constitution contains two legal norms: the first determines that primary education is compulsory, and the second that primary education shall be financed from public funds.
 
2. From the wording in accordance with which primary education is financed from public funds, the majority of the Constitutional Court judges derived the conclusion that children have “the right to attend compulsory state-approved primary education programmes free of charge regardless of whether they are carried out by entities of public or private law” (Paragraph 20 of the reasoning). However, since in accordance with the regulation in force state-approved primary education programmes carried out by private schools without a concession are not financed from public funds in the same amount as the programme for public schools, there is an interference, according to the assessment of the majority of the Constitutional Court judges, with the right of pupils to primary education free of charge.
 
3. In contrast to the majority, I am of the opinion that the Constitution does not require that primary education must be fully financed from public funds, i.e. that primary education is necessarily free of charge. I believe that the Constitution does not require that for either public or private schools. In particular, the Constitution does not require such in the form of “the right of children.” The above is also not true in reality, as parents alone pay for textbooks, other [educational] aids, and activities that fall within the framework of the public programme.[1]
 
4. In my opinion, it follows from the constitutional provision on compulsory primary education that parents have the duty to ensure that their children attend a state-approved primary education programme.[2] The mentioned obligation of parents is correlative to the duty of the state to organise primary education in a manner that enables parents to fulfil their obligation to ensure that their children are enrolled in a state-approved primary education programme.
 
5. The second paragraph of Article 15 of the Constitution leaves the regulation of the manner of the exercise of human rights and fundamental freedoms to the legislature, namely whenever the Constitution so provides or where this is necessary due to the particular nature of an individual right or freedom. As to the implementation of education, Article 57 of the Constitution does not grant the legislature express authorisation to regulate the manner of education; however, the legislature did regulate it [nonetheless] due to the nature of the right to education, which can be exercised in different ways, as an abstractly formulated constitutional provision cannot suffice for a human right to primary education to possibly be exercised directly on the basis of Article 57 of the Constitution. In fact, the Constitutional Court has already upheld the determination of the statutory regulation of primary education and its financing, in particular by Decisions No. U-I-215/96, dated 25 November 1999 (Official Gazette RS, No. 101/99, and OdlUS VIII, 265), and No. U-I-68/98, dated 22 November 2001 (Official Gazette RS, No. 101/01, and OdlUS X, 192).
 
6. The legislature regulated the organisation and financing of education by the Organisation and Financing of Education Act (Official Gazette RS, Nos. 16/07 – official consolidated text, 36/08, 58/09, 64/09 – corr., 65/09 – corr., and 20/11 – hereinafter referred to as the OFEA).
 
7. In Slovenia, the field of primary education falls under the regulation of non-economic public services. It is regulated by the Institutes Act (Official Gazette RS, Nos. 12/91 and 8/96 – hereinafter referred to as the IA), as the general act, and the OFEA, as the sectoral act. Neither the Constitution, other regulations, nor the OFEA define public services.[3] In general it holds true that the state or local communities ensure the continuous and undisturbed provision of public non-material goods and services.[4] The principle of free enterprise does not apply thereto, as the activities included in the regulation of public services are not carried out in a commercial manner for the purpose of making a profit but are carried out, as a general rule, under equal conditions for all users due to the implementation of the public interest. Trpin states that, in public service activities, the establishment of commercial mechanisms could result in disturbances in the functioning of the social system.[5] Due to the stated characteristics, compulsory primary education activities in the Republic of Slovenia are carried out under the regulation of public services.
 
8. Article 10 of the OFEA defines a public service in the field of education. In accordance with the mentioned Article, primary education public services include education programmes adopted by the competent minister that are organised in the network of public primary schools (the first paragraph of Article 11). The mentioned programmes are carried out by public primary schools and, on the basis of a concession, also private primary schools (the second paragraph of Article 10 and the first paragraph of Article 11). The OFEA does not provide for forms of public services other than public primary schools and private primary schools with a concession.[6] The OFEA does, however, differentiate between state-approved education programmes carried out as public services (Article 10) and other state-approved education programmes (Article 9). The latter may be carried out by private primary schools without a concession.
 
9. State-approved education programmes may be carried out by four types of primary schools:
a) public primary schools (i.e. primary schools established by entities of public law, by a state, or by a municipality, and which are included in the regulation of public services and in the network of public primary schools);
b) private primary schools with a concession (i.e. primary schools established by entities of private law, to which the state has granted a concession for carrying out a public service in the field of primary education, and which are included in the network of public primary schools);
c) private primary schools without a concession (i.e. primary schools established by entities of private law, to which the state has not granted a concession for carrying out a public service in the field of primary education; they carry out a state-approved education programme on the basis of an agreement on the co-financing of a state-approved education programme. These schools are not included in the network of public primary schools);
d) private primary schools without a concession with characteristics equal to those of private primary schools under c), however they do not carry out a state-approved education programme.
 
10. The legal positions that the mentioned primary schools are in vary not only between public and private schools, but also between private primary schools themselves. The positions of a private primary school with a concession and a private primary school without a concession are significantly different. A concessionary public service is one form of transferring the performance of a certain activity from the public sphere to the private sphere and thus can be considered to be a form of the privatisation of public services.[7] A private primary school – i.e. a concessionaire – is bound by the concession agreement, by which it agrees, with the state as the licensor, to the conditions for carrying out the activities and other subjects determined by Article 75 of the OFEA (the mutual relations of the contracting parties, the subject of the concession, the scope of the performance of activities, etc.). The OFEA, however, does not determine the rights of the licensor when managing an institution, which it determines with regard to public schools, where the founder has important competences that refer to the operations of the public school. Nevertheless, in a concessionary relationship the position of the state as the licensor is stronger, as the state, being the bearer of the public interest and the entity obliged to provide all pupils primary education, acts not only as a party to the contractual obligation, but also as [state] power. Therefore, the concession agreement includes characteristics of both an authoritative and contractual act. Consequently, special provisions apply as to the rescission and modification of the agreement, the transfer of the concession, the revocation of the concession, etc. All of these characteristics of the agreement are intended to ensure that the concessionaire carries out primary education as required by the regulation of public services, thus protecting the relationship between the concessionaire and the users of the services.[8] It is important for the state to ensure undisturbed primary education and thereby to fulfil its obligation originating from the second paragraph of Article 57 of the Constitution. Private schools with a concession are thus included, on the basis of a concession agreement, in the network of public primary schools.
 
11. A private school without a concession that fulfils the prescribed material conditions and conditions relating to its personnel is entered into the register of primary schools on the basis of a decision of the sectoral ministry, and carries out a state-approved education programme; such school concludes with the state (merely) an agreement on the co-financing of the primary education programme.[9] By the agreement on the co-financing of the primary school, the state and the primary school agree merely on the scope, period, and manner of the financing. The programmes of such primary school are not included in the regulation of public services and [the school] is thus also not included in the network of public primary schools.
 
12. Considering the mentioned differences in the legal positions of primary schools, the legislature determined different sources and a different scope of their financing. The OFEA ensures public financing from public funds of all three types of primary schools that carry out state-approved education programmes. But not full financing. A public primary school receives public funds for carrying out the education programme, for investments, for capital maintenance expenditures, and for equipment. A private primary school with a concession receives public funds for carrying out the education programme in the same amount as does a public school, however the state does not finance its investments, capital maintenance expenditures, or equipment. As regards a private primary school without a concession that carries out a state-approved education programme, the state covers, in accordance with the second paragraph of Article 86 of the OFEA, 85% of the costs for carrying out the education programme; however, the state does not finance its investments, capital maintenance expenditures, or equipment. On the other hand, the OFEA does not exclude the possibility of public primary schools acquiring funds by selling services and products (i.e. by commercial activities, the eighth indent of the first paragraph of Article 78 of the OFEA).[10] Private primary schools may also be financed by tuition (the sixth indent of the first paragraph of Article 78 of the OFEA) but only private schools without a concession may also acquire funds from pupils’ contributions (the first paragraph of Article 83 of the OFEA). The sources of financing of a public school must not include tuition or pupils’ contributions; a public schools is also limited as regards the use of the surplus, as it may only distribute it in accordance with the law and the founder’s decision (the second paragraph of Article 48 of the IA).[11] I can conclude that, within the framework of its competences, the legislature regulated different possible sources of financing of primary education with respect to the different legal positions of primary schools.[12]
 
13. I can conclude from all of the above that, by organising this public service and by maintaining the network of public primary schools, the state fulfilled the formal obligation to organise primary education. Parents are also in fact provided the opportunity to enrol their children in a state-approved primary education programme and thus to fulfil their obligations stemming from the second paragraph of Article 57 of the Constitution. As stated above, private primary schools without a concession do not carry out a public service and do not fall within the network of public primary schools. From the viewpoint of fulfilling the obligation of the state to ensure public financing of primary education, carrying out a state-approved primary education programme does not equal carrying out a public service in the field of primary education. A public service is carried out by a public institution or a concessionaire in accordance with the regulation of public services. A private school, on the other hand, is neither a public institution nor a concessionaire.
 
14. Parents of pupils enrolled in private schools without a concession can only claim that their children were deprived of the right to compulsory primary education if they prove that they could not enrol their children in one of the primary schools in the network of public primary schools. Since the state maintains the network of public primary schools, I believe that it does not have the duty to finance education programmes carried out by private primary schools without a concession. The decision on the amount of public funds that should be available to private primary schools without a concession falls within the legislature’s discretion and not within the field of the review of constitutionality. The issue in this respect is not that the state finances private schools due to the constitutional provision stating that primary education shall be financed from public funds, but [the fact that it finances them] in order to ensure plurality (e.g. of Weltanschauungen).
 
15. As to the question of whether the state is obliged to fully finance only public schools, the Constitutional Court has already replied thereto in Decision No. U-I-68/98, dated 22 November 2001, wherein it stated the following in Paragraph 21 of the reasoning: “The legislature's decision that the state would fully fund only public schools in which any parent can enrol their children falls within its discretion and is thus not inconsistent with the Constitution.”[13] Furthermore, it must be taken into consideration that, in order to ensure the plurality of the providers of education, the state also has the duty to finance state-approved education programmes carried out by private schools with a concession. Such follows also from Decision No. U-I-68/98, dated 22 November 2001, where the Constitutional Court stated the following in Paragraph 21: “If the constitutionally guaranteed plurality of the providers of education is to be truly implemented, the state is also bound to create financial possibilities for such.” I believe that the appropriate legal framework is ensured, as the state finances the education programmes of private schools with a concession in the same amount as for public schools; in addition, it finances state-approved education programmes carried out by primary schools without a concession. These programmes are not included in the regulation of public services and, in spite of that, they are provided 85% of the funds that the state provides for carrying out the public education programme. A question that may in fact be raised, considering the share of private schools carrying out state-approved education programmes, is whether in fact there exists a plurality of providers of education. The assessment of this question, however, exceeds the constitutional question in the case at issue.
 
16. It is emphasised in the reasoning of the Decision at issue that due to the fact that the state does not fully fund the primary education programmes of private schools without a concession, it inadmissibly interferes with the right of children to publicly-financed primary education. I believe that it cannot be claimed that this obligation of the state is not fulfilled. Since the state provides for the network of public primary education, which also includes private schools that have concluded a concession agreement, it fulfils its obligation imposed by the first and second paragraphs of Article 57 of the Constitution. Therefore, from the fact that private primary schools without a concession are only partially financed from public funds, one cannot draw the conclusion that there is an inadmissible interference with the rights of children who attend private primary schools.
 
17. It is a sovereign decision of the state to what extent it will finance primary education. In the EU, the constitutions of certain Member States provide for primary education free of charge, namely Belgium, Bulgaria, Croatia, Estonia, Finland, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, and Spain. Nevertheless, the financing of private schools is, as a general rule, limited in scope.[14] For the mentioned states (Belgium and Ireland are exceptions) it also holds true that at the level of primary education the share of private schools is significantly lower than the share of public schools.[15] Finnish primary schools are among the best primary schools in the world. They are managed by municipalities (i.e. 99% are), whereas private schools are an exception and are financed in the amount equivalent to that received by public schools. Private schools must observe national primary school syllabi and are under state supervision.[16]
 
18. With regard to the above, I am of the opinion that by establishing a network of public primary schools in which also private schools with a concession are included the state fulfils its obligation to provide all school-age children a sufficient legal framework for a pluralistic primary education. The state complements the plurality of the providers of education by entering private schools without a concession into the register of primary schools. However, I believe that the compulsory automatic financing of primary schools on the basis of whether they carry out state-approved programmes should not be established. The decision of the Constitutional Court entails that the state must finance state-approved education programmes carried out by private schools without a concession in the amount equivalent to the programmes carried out by primary schools that are included in the public network of schools, although the state could fulfil its obligation to organise and to ensure the functioning of primary education by ensuring sufficient coverage by the network of public primary schools. The Decision of the Constitutional Court entails that a given amount of money will have to be distributed among multiple beneficiaries, which is likely to impoverish the public service of primary education carried out by public primary schools or by private primary schools with a concession. The duty of the state is not only to provide a sufficient number of primary schools; it also must ensure the quality of education. Nonetheless, the question regarding the overall financing of primary education (textbooks, etc.) remains open.
 
19. I am of the opinion that providing a different scope of financing from public funds depending on the different legal positions of public and private schools with a concession and of private schools without a concession leads to an admissible and reasonable differentiation. Private schools that carry out state-approved education programmes without a concession certainly bring many positives; they are established in the public interest and they give parents more choice as to which school they will enrol their children in; private schools also lessen the burden on the budgets of municipalities, as they do not need to finance investments, capital maintenance, or the equipment of these schools. As to the question of whether the legislature took all of the above into consideration when it prescribed the 85% financing of the state-approved education programmes of private schools to which the state did not grant a concession, this matter falls within the legislature’s discretion, until the legislature interferes with Article 57 of the Constitution, in accordance with which freedom of education is guaranteed and compulsory primary education is financed from public funds.
 
20. The greater the regulation of public services, the more social the state is.[17] The objective of every social state is to prevent an increase in inequality or poverty among children, as well as to ensure the fairness of the school system.[18] By carrying out public services, the state fulfils its role. Hence, one can expect that public services will exist also in the future. How they are to develop, perhaps by following the path of greater privatisation and liberalisation, is a question every state is faced with. Therefore, it is a matter of the state’s policy [to decide] what stance will it take towards regulating, carrying out, and supervising primary education programmes, including whether it will itself establish public schools in which it will have a predominant influence, and whether it will maintain such influence via private primary schools with a concession, or whether it will leave the carrying out of primary education activities to the commercial sector to a greater extent.
 
To conclude, I believe that when the Constitutional Court decided in the case at issue that it is the duty of the state to fully fund also primary education programmes carried out by private schools that are not included in the regulation of public services or in the network of public primary schools, it interpreted too broadly the requirements that follow from the second paragraph of Article 57 of the Constitution and excessively interfered with the competence of the state to determine the appropriate manner of financing primary education for different schools.
 
 
                                                                              Dr Etelka Korpič – Horvat
                                                                                             Judge
 

[1] When the Constitution was being drafted, the Commission for Constitutional Affairs discussed, on 27 November 1991, whether the Constitution should determine that primary education is free of charge, which is what the draft version of the Constitution contained. The Commission decided to abandon the phrase “free of charge.” Dr F. Bučar argued at the time that “[…] primary education is free of charge, but although this is relative, it is not true. I have to buy textbooks, notebooks, and everything else all by myself. I have to pay that myself. Unless we are able to say that from now on absolutely everything for school-age children is free. But it is not!” (See Republika Slovenija, Državni zbor, Nastajanje slovenske ustave [The Republic of Slovenia, National Assembly, The Drafting of the Slovene Constitution], Vol. II, Ljubljana 2001, p. 648).
[2] The concretisation of the first part of the following sentence: “Primary education is compulsory” is determined by Article 4 of the Primary School Act (Official Gazette RS, Nos. 81/06 – official consolidated text, 102/07, 107/10, 87/11, and 63/13 – hereinafter referred to as the PSA). It concerns the obligation of parents to ensure that their child fulfils the obligation to finish primary education. In addition, the right and duty of parents to have their children educated is also determined by Article 54 of the Constitution.
[3] The general definition of public services can be found in Article 1 of the Services of General Economic Interest Act (Official Gazette RS, No. 32/93 – hereinafter referred to as the SGEIA), but only that of [public] services of general economic interest, which are activities by which material public assets are provided, namely products and services, regarding which continuous and undisturbed provision in the public interest is guaranteed by the Republic of Slovenia or by municipalities, with a view to satisfying public needs when and insofar as they cannot be provided on the market. The issue is to provide certain assets that the state must provide to its inhabitants and citizens due to the public interest and the state’s role. Duguit was the first to define, in legal theory, a public service, namely as any activity that must be regulated and supervised by the state, as it is indispensable to the realisation and development of social activity, as long as it is of such nature that it cannot be provided otherwise than by state intervention (L. Duguit, Law in the Modern State, Oxford University Press, Oxford 2003, p. 63). As regards the rise and development of public services (French: services publics), see P. Ferk, B. Ferk: Javne službe, državne pomoči in javno-zasebna partnerstva [Public Services, State Aids, and Public-Private Partnerships], GV Založba, Ljubljana 2008, pp. 26–38.
[4] In Slovenia, non-commercial and commercial activities are carried out as public services. The law determines which activities the regulation of public services applies to. The regulation of non-commercial public services applies in the fields of education, health care, social care, culture, science, and other (non-commercial) activities. It is regulated by the Institutes Act and sectoral laws. See G. Trpin, Javne službe in javni zavodi [Public Services and Public Institutions], Podjetje in delo, Nos. 6–7, pp. 1376–1382.
[5] G. Trpin, Javne službe in javni zavodi [Public Services and Public Institutions], Podjetje in delo, Nos. 6–7, 2004, p. 1376.
[6] Different forms of providing public services are determined by the SGEIA; Article 6, for instance, determines a public utility unit. See J. Čebulj, Oblike izvajanja javnih služb in koncesionirana javna služba [Forms of Providing Public Services and Public Services with a Concession], Pravna praksa, 1991, No. 19.
[7] See also M. Pečarič and B. Bugarič, Javne službe [Public Services], Fakulteta za upravo Univerze v Ljubljani, Ljubljana 2011, pp. 136–145.
[8] See A. Mužina, Pravna ureditev koncesij v Republiki Sloveniji in EU [The Legal Regulation of Concessions in the Republic of Slovenia and in the EU], Založniška hiša Primath, Ljubljana 2004, pp. 575–771; R. Pirnat, Koncesijska pogodba [The Concession Agreement], Podjetje in delo, Nos. 6–7/2003, pp. 1607–1618; and M. Dekleva, Prenos koncesijskega razmerja kot svojevrsten upravnopravni institut [Transfer of a Concessionary Relationship as a Special Administrative Law Institute], Javna uprava, Vol. 50, Nos. 1–2, 2014, pp. 133–150.
[9] The education programme becomes state-approved once the competent expert council establishes the equivalence of the education standard (Article 17 of the OFEA).
[10] The scope of these funds is very limited and it is not necessary that every primary school acquires funds from this source of financing. From the viewpoint of the legal order of the EU, this source is also disputable, as commercial activities fall within the system of free enterprise.
[11] See Decision of the Constitutional Court No. U-I-272/97, dated 23 November 2000 (Official Gazette RS, No. 115/2000, and OdlUS IX, 276).
[12] Considering [the content of] the filed petition, the Constitutional Court did not adopt a position on the financing of investments, capital maintenance, and equipment, therefore I will only consider the financing of education programmes hereafter.
[13] I believe that this conclusion of the Constitutional Court also refers to primary education, as the “entire sphere” of education also includes primary education, which is what expressly follows from point 7 of the reasoning of Decision No. U-I-68/98, dated 22 November 2001; furthermore, parents as legal representatives enrol their children in primary schools, as pupils (still) cannot enrol therein by themselves.
[14] OECD (2012), Public and Private Schools: How Management and Funding Relate to their Socio-economic Profile, accessible at:
http://dx.doi.org/10.1787/9789264175006-en (accessed on 17 December 2014), Figure 1.3 on p. 21 shows the percentages of state financing of public and private schools.
[15] Ibidem, Figure 1.1 on p. 19, which shows the percentages of pupils who attend public and private schools.
[16] See Draft Act Amending the Primary School Act, EVA: 2011-3311-0007, dated 14 July 2011. See also the data regarding Finland accessible on the following website: https://webgate.ec.europa.eu/fpfis/mwikis/eurydice/index.php/Finland:Redirect (accessed on 23 December 2014).
[17] Trpin states that a social state will have a greater number and a larger scope of public services than a liberal state, as it can achieve social goals through them. From this point of view, public services can substantially contribute to social equality, as access to their assets is not related to the financial power of individuals. (G. Trpin, Javne službe in javni zavodi [Public Services and Public Institutions], Podjetje in delo, Nos. 6–7, p. 1377). Also P. Ferk and B. Ferk state that “[t]he state does not leave non-commercial public services to be carried out under market conditions in particular due to social reasons, as disturbances could lead to socially unacceptable circumstances. Such activities include, for instance, public health care, education, protection of the cultural heritage, pharmacy services, and other similar activities. Market mechanisms in these fields could be completely unequal and thus solidarity would not be ensured.” (P. Ferk, B. Ferk, op. cit., p. 37). As to the legal effects and the issue of solidarity, see, for instance, D. Gareth, Competition, Free Movement, and Consumers of Public Services, EBLR, No. 1/2006, p. 102.
[18] From those proposed modifications of the PSA that are directed towards reducing public spending and thus reducing the public debt to a sustainable limit, it can be discerned that the position [in Slovenia] still remains at the starting point that the Slovene school system must ensure, to the greatest degree possible, the fairness of the school system, which is reflected in both the accessibility of knowledge and in providing measures for those coming from an environment that does not stimulate education. See the Draft Act Amending the Primary School Act, EVA: 2013-3330-0089, dated 20 June 2013.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Anton Kokalj, Vodice and others
Date of application:
26. 10. 2012
Date of Decision:
4. 12. 2014
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Published:
Official Gazette RS, No. 2/2015 and OdlUS XX, 29
Document:
AN03793

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All decisions the Constitutional Court adopted since independence of Slovenia, with the exception of orders rejecting constitutional complaints or not accepting them for consideration on the merits that contain as reasoning only the reference to the statutory basis of the decision and the composition of the panel of the Constitutional Court (the fourth paragraph of Article 55c of the Constitutional Court Act), are published on this website.

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