In the competent Committee of the Parliament, today Tuesday 27/02/2024, the discussion of the regulations for the operation of non-state, non-profit universities beginsn.
The bill entitled “Strengthening the Public University – Framework for the operation of non-profit branches of foreign universities” which includes a total of 205 articles will be introduced to the Plenary of the Parliament for discussion and voting on the two days of March 7 and 8.
The accompanying explanatory statement notesand among other things that the provisions “address for the first time in a coherent manner on the basis of the relevant constitutional imperatives, interpreted in conjunction with EU law, the issues related to the provision of higher education services in the modern and cross-border context of increased mobility. In particular, the legislative framework is established for the licensing of the establishment and operation in Greece of branches of foreign higher education institutions in the form of Legal Entities of University Education (N.P.E.), for the purpose of providing higher education services and awarding degrees studies in a manner consistent with the constitutional purpose of higher education.
According to par. 5 of article 16 of the Constitution “5. Higher education is provided exclusively by institutions that are legal entities under public law with full self-governance. These institutions are under the supervision of the State, they have the right to be financially supported by it and they operate in accordance with the laws concerning their organizations…”.
The disputed constitutional provisions were introduced for the first time in 1975 in the Constitution by the 5th Revisionary Parliament, and the legal nature of universities as n.p.d.d. first enacted in 1968 with the dictatorial Constitution. From the minutes of the discussions of the dictatorial Council of Ministers it appears that the military regime, in order to ensure that the university institutions would be under its control, reduced the legal nature of the universities as n.p.d.d. to a constitutional rule, although some of these came from non-state/private initiatives (such as the Panteios School of Political Sciences, the Thessaloniki and Piraeus Industrial Schools).
The provisions of the Constitution show an evolutionary course, they are in no way static, and must be interpreted dynamically, so that the Constitution adapts to the modern changing economic, social, technological and scientific developments, i.e. to adapt the meaning of the constitutional provisions to the changing modern realities and legal conditions. The dynamic, following all, interpretation of the constitutional provisions is carried out through their historical-evolutionary and teleological interpretation, taking into account the changing conditions in the national, but also in the Union legal order. In fact, the dynamic interpretation brings regarding an “informal” change of the Constitution, which is opposed by its “formal” change, which occurs through the process of constitutional review, under the conditions it provides.
In this evolving context, the Council of State, as the highest annulment court, and pillar of the interpretation of the constitutional provisions in the light of the Union principles and freedoms, already in a series of its decisions, despite the grammatical wording of the constitutional text, interpreted teleologically in view of the of modern data, par. 4 of article 16 of the Constitution, when the question of the constitutionality of the imposition of tuition fees in the graduate programs of Greek public universities was raised (StE Ol. 2411/2012). In particular, it was judged that when the constitutional legislator established with the 1975 Constitution the social right in question and for higher education, he took into account the institutional framework and the operating costs of undergraduate studies, while postgraduate studies and the corresponding institutional framework were absent from Greek universities . In view of this, as far as postgraduate studies are concerned, it is up to the discretion of the common legislator to impose tuition fees on postgraduate students, to cover the operating costs of postgraduate study programmes. Furthermore, in the last twenty-five years in particular, the CoE has cultivated its extroversion, having developed a dialogue with the Court of Justice of the European Union (CJEU) through the formulation of pre-trial questions and the response to them or following appeals once morest Greece.
Especially with regard to the recognition of foreign study titles, the CoE, with more recent ones under no. 178-179/2023 of its decisions, has recognized the professional equivalence of titles of formal higher education, which are granted by authorities of member states, designated as competent by the legislation of the relevant member state, which certify a first cycle degree. This possibility of recognizing the “professional equivalence” of the qualifications is provided even when the conditions for the application of Directive 2005/36/EC are not met. With these facts, the Council of State has accepted that, in the light of Union law, the above recognition does not contradict Article 16 par. 5 and 8 of the Constitution, thus changing the former absolute interpretation of the above constitutional provisions. Therefore, the Constitution, undeniably, is a living instrument (“living instrument”), which is constantly evolving and must be dynamically interpreted, especially within the framework of EU law, resulting in rules of EU law. E. redefine the meaning and content of certain provisions of the Constitution. A typical example is also par. 4 of article 4 of the Constitution which stipulates that only Greek citizens are admitted to all public functions, except for the exceptions introduced by special law, which is interpreted in conjunction with article 48 of the EEC Treaty, with the consequence of allowing citizens of other member states of the European Union to be appointed to public service positions, n.p.d.d. or organizations and businesses under the same conditions and procedures as for Greek citizens, with the exception of the condition of Greek citizenship (StE PE 522/2001 etc.).
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