Up-505/19
Datum: 2024-05-09T00:00:00.000+02:00
ecli: ECLI:SI:USRS:2024:Up.505.19
vrsta: posamični akt
zadeva: ustavna pritožba
objavljeno: Official Gazette RS, No. 48/2024 | 09.05.2024
dokument: AN4172
resitev: zavrnitev
odlocitev: odločba
vlagatelj: Noemia Rute Peres de Bessa Vilela, Maribor
datum_vloge: 2019-04-29T22:00:00.000Z
datum_odlocitve: 2024-05-08T22:00:00.000Z

*Publisher's Note: The full text of this Decision/Order is available only in Slovene. This is a summary that has been prepared for informational purposes only.*

## Constitutional Court Decision No. Up-505/19, dated of 9 May 2024

The Constitutional Court considered a constitutional complaint by a complainant who claimed that the University of Maribor had prevented her from voting in the election of its rector. The Supreme Court adopted the position that the complainant was not prevented from voting in this election by a public authority and therefore the conditions for initiating an administrative dispute on the basis of Article 4 of the Judicial Review of Administrative Acts Act were not fulfilled. The complainant alleged that the University of Maribor is a public institution exercising public authority and therefore, whenever it decides on the rights and obligations of individuals, it decides with public authority. The complainant alleged that the Supreme Court's position violated the prohibition of judicial arbitrariness enshrined in Article 22 of the Constitution.

The Constitutional Court explained that in Decision No. U-I-243/95, dated 16 April 1998, it held that state universities, insofar as they perform a public service, also exercise public authority. It decided to reconsider that position in the present case, since it is linked to the question of judicial protection against the acts of a university and to the question of the constitutionally protected autonomy of universities.

The Constitutional Court clarified the meaning and characteristics of the exercise of public authority. It is a right conferred by law on individuals and organisations other than state authorities to perform certain duties of the state administration. The public authority to adopt general acts, to decide on individual matters, and to perform material (real) acts may be conferred by law or on the basis of a law. The Constitutional Court also clarified the characteristics of a university, which is an autonomous, scientific, research, artistic, and educational institution with a special status that ensures the development of science, professional competencies, and the humanities. Universities exercise a public service comprising educational, scientific, research, artistic, and support activities. This is a non-economic public service through which the state fulfils its obligation to create opportunities for all citizens to obtain an adequate higher education on equal terms. By providing this public service, universities ensure the dissemination of knowledge, scientific research, and artistic achievements to individuals and to society as a whole.

The Constitutional Court summarised the views of legal doctrine, from which it follows that public services are established and protected in an authoritative manner, but their provision does not entail the exercise of public authority. By establishing public services, the state performs its service function, which means that it provides individuals with public goods and services which they would otherwise have to obtain through the system of market exchange, provided they are able to do so. Deciding on the rights and obligations of the users of a public service is an integral part of the public service, but does not constitute the exercise of public administration. On such basis, the Constitutional Court clarified that the establishment of a public service cannot be equated with the conferral of public authority to exercise certain duties of the state administration. Through the establishment of a public service, the public service provider acquires the duty to provide public goods to all individuals on equal terms, but it does not acquire the power to perform the traditional authoritative functions of the state administration. This difference arises due to the different core functions of public administration. The conferral and exercise of public authority fall within the regulatory function, i.e. the authoritative or coercive regulation of social relations, while the provision of a public service falls within the service function, i.e. the obligation of the state to ensure, in the public interest, the general availability of public goods to all individuals.

In the present case, the Constitutional Court therefore departed from the position that state universities, insofar as they perform a public service, also exercise public authority. When universities and their members provide the public service of higher education, they perform the state’s service function and do not act in an authoritative capacity. While it cannot be excluded that a public service provider could also be granted public authority and concurrently perform both the state’s service and authoritative functions, the legislature has not granted such public authority to universities. However, even if this were the case, it would not change the legal nature of the overall functioning of universities, since universities are established for the purpose of developing science, professional competencies, the humanities, and the provision of knowledge to individuals. The individuals who carry out these activities have the right to do so without constraints and pressures, autonomously and independently of the state. It is therefore an essential characteristic of universities that they do not exercise public authority.

Since public universities do not exercise public authority when they provide the public service of higher education, the conduct of the procedures for the formation of university bodies that decide on the provision of the public service likewise does not constitute the exercise of public authority. Consequently, the university bodies that conduct the procedure for the election of the rector do not act as public authorities in the conduct of that procedure. The Constitutional Court thus held that the Supreme Court applied an appropriate interpretation of the concept of public authority and did not violate the prohibition of judicial arbitrariness.

With regard to the complainant’s allegations that she had been treated unequally in the elections due to her nationality, the Constitutional Court explained that she could have availed herself of judicial protection in accordance with the Protection against Discrimination Act. In accordance with that Act, the complainant could have brought a lawsuit to seek compensation or request that the judgment be published in the media.

The Constitutional Court dismissed the constitutional complaint.