The Constitutional Court decided on a request of the Court of Audit for a review of the constitutionality of the provision of the Higher Education Act that regulates the legal status of universities and their members. The main allegation of the applicant was that the challenged provision is inconsistent with the principle of the clarity and substantive precision of legal regulations because it does not clearly determine whether the members of a university are independent legal entities, which in practice causes problems in a number of fields.

The Constitutional Court reviewed the challenged provision from the viewpoint of conformity with the requirement of the clarity and precision of regulations, which is one of the principles of a state governed by the rule of law determined by Article 2 of the Constitution. The principle of the clarity and precision of regulations requires, inter alia, that norms be defined clearly and precisely so that they can be implemented, so that they do not allow arbitrary actions, and so that they unambiguously and with sufficient precision determine the legal situation of the entities to which they refer.

The first paragraph of Article 58 of the Constitution determines that universities and state institutions of higher education shall be autonomous. The right to autonomy entails the right to decide on an entity’s own matters, i.e. on the matters that pertain to a university field and concern a university or an institution of higher education. Regardless of the fact that the first paragraph of Article 58 of the Constitution does not determine that the legislature must prescribe by law the manner of implementation of this constitutional right, it follows from the constitutional case law that state universities and institutions of higher education cannot exercise their right to autonomy directly on the basis of the Constitution. In fact, this provision of the Constitution binds the state to determine the border between what is completely autonomous and what is public, and to regulate higher education such that it determines the fundamental frameworks for the functioning of state universities and institutions of higher education concerning their status, personnel management, management, and finances, and to regulate the fundamental relations between the entities within universities and the position of the public in the management of universities and in the supervision of their functioning. In doing so, the state must not limit the autonomy of state universities or institutions of higher education as regards their scientific and pedagogical component.

The Constitutional Court established that the Higher Education Act clearly determines that universities are legal entities and that, within the framework of a university, faculties and artistic academies shall be established, and also higher technical schools or other institutions can be established (i.e. the members of a university). The Act introduces a distinction between two different positions of university members; namely, for exercising a national higher education programme for which the Republic of Slovenia provides funding, and for “other instances” of the functioning of university members. The Higher Education Act does not contain other provisions that would determine the status of university members more precisely and in more detail. In the assessment of the Constitutional Court, it is hence (still) not clear what the status of university members is and whether also university members are legal entities; such unclarity and substantive imprecision of the legal regulation cause in practice numerous problems (e.g. when carrying out an auditing procedure before the Court of Audit, when making entries in the register of companies, when registering, i.e. recording, ownership of property that a university member acquires from public and other sources, and when drafting and submitting balance sheets). Hence, since the challenged provision does not determine the legal status of university members in a substantively precise and unambiguous manner, such that their due conduct would be predictable, the Constitutional Court established that it is inconsistent with the principle of the clarity and substantive precision of regulations determined by Article 2 of the Constitution.