Constitutional Court

KO173/21, Applicant, Municipality of Kamenica, Constitutional review of articles  3, 4, 5, 6, 7 and 9 of the Administrative Instruction of the Ministry of Education and Science (MES) no. 104/2020 on the “Criteria and Procedures for the Establishment and Termination of the Activity of Pre-University Education Institutions”

KO173/21, Judgment, of 7 December 2022, published on 30 December 2022

Keywords: Referral submitted by the Municipality of Kamenica, establishment of educational institutions of the pre-university level in the municipalities; local self-government, own competencies of the municipality in the area of pre-university  education, admissible referral

In assessing the constitutionality of the challenged Administrative Instruction, the Court unanimously decided that: (i) the referral is admissible; and (ii) Article 3 (Founder), paragraphs 5, 6 and 7 of Article 6 (Verification of conditions), paragraphs 2 and 3 of Article 7 (Decision) and paragraphs 6, 7 and 8 of Article 9 (Termination of the activity of the educational institution or the separated parallel) of the challenged Administrative Instruction, are not in compliance with paragraph 2 of Article 12 [Local Government], paragraph 1 and 3 of Article 123 [General Principles] and with paragraph 2 and 3 of Article 124 [Local Self-Government Organization and Operation] of the Constitution of the Republic of Kosovo, and as such are repealed.

The essence that the circumstances of the present case entail, is related to the competencies that have been attributed through the aforementioned Administrative Instruction to the central level, namely the Ministry of Education and Science, on the one hand, and to the local level, namely the municipalities, on the other hand, in relation to the establishment of educational institutions and separate parallels in the municipalities. The above mentioned Administrative Instruction, among others, clarifies that the decision pertaining to the establishment and termination of educational institutions and separate parallels at the pre-university level, is taken by the Secretary General of the Ministry of Education and Science, based on the proposal of the relevant municipality. The decision-making at the level of the central government, namely, the Ministry of Education and Science, regarding the establishment/termination of educational institutions and separate parallels at the pre-university level, according to the Applicant, infringes the municipal responsibilities, contrary to the relevant constitutional provisions and those of the applicable laws, namely of Law no. 04/L-032 on Pre-University Education, Law no. 03/L-68 on Education in the Municipalities of the Republic of Kosovo and Law no. 03/L-040 on Local Self-Government, according to which, “provision of public pre-primary, primary and secondary education, including registration and licensing of educational institutions, recruitment, payment of salaries and training of education instructors and administrators”, constitutes an own competence of the municipalities and as such, it is “full and exclusive” competence of the municipal level.

Initially and regarding the admissibility of the referral, the Court explains that after having submitted the referral for constitutional review of the challenged Administrative Instruction by the Mayor of the Municipality of Kamenica, Mr. Qëndron Kastrati, on 17 October 2021, namely 14 November 2021, after the second round of local elections in the Republic of Kosovo, Mr. Kadri Rahimaj was elected Mayor of the Municipality of Kamenica. The latter, through his representative, on 5 January 2022, submitted to the Court the request for withdrawal of the referral in the case KO173/21, arguing that he has no legal interest in its review. The Court, based on its case-law and Rule 35 (Withdrawal, Dismissal and Rejection of Referrals) of the Rules of Procedure, according to which, notwithstanding the request for withdrawal, the Court may determine to decide on the initial referral, first assessed the request of the new Mayor of the Municipality, and decided to reject the latter, given the public interest for the continuation of the review and decision on merits in the case, emphasizing the importance of clarifying the allegations of violation of constitutional principles related to local self-government.

As for the merits of the case, in addressing the Applicant’s allegations, the Court first examined the general principles regarding local self-government established in the Constitution, the European Charter of Local Self-Government, the relevant Venice Commission Opinions, applicable laws in the Republic of Kosovo as well as the case law of the Constitutional Court.

The Court, based on Articles 12, 123 and 124 of the Constitution, respectively, among others, stated that: (i) the basic territorial units of local self-government in the Republic of Kosovo are municipalities; (ii) the organization and competencies of the local self-government units are regulated by law; (iii) the municipalities have their “own”, “enhanced” and “delegated” competencies; and (iv) the administrative review of municipal acts by the central authorities in the scope of ​​their competencies, is limited to ensuring compliance with the Constitution and the law. Furthermore, based on these constitutional Articles, the Court emphasized that the activity of local self-government bodies is based on the Constitution and the laws and respects the European Charter of Local Self-Government. The latter, inter alia, and insofar as it is relevant to the circumstances of the present case, stipulates that: (i) local authorities, within the limits of the law, will have full discretion to exercise their initiative in relation to any matter which is not excluded from their competence and has not been assigned as a competence of any other authority; (ii) the competencies conferred on local authorities should normally be full and exclusive and that they may not be undermined or limited by another authority, central or regional, except as provided for by law; and (iii) any administrative control over local authorities may be exercised only in accordance with the manners and in the cases provided for by the Constitution or by law.

The Court also reiterated that local self-government is of such importance in the constitutional order, so that the Constitution: (i) has defined these guarantees, inter alia in the Fundamental Provisions of the Constitution; (ii) has determined the observance of the European Charter of Local Self-Government; and (iii) in order to ensure the protection of these guarantees, in Article 113 thereof, has given municipalities direct access to the Constitutional Court, in the capacity of authorized parties, to challenge the constitutionality of laws or acts of the Government which infringe on the municipal responsibilities or reduce the municipal revenues, in case the relevant municipality is affected by that law or act.

In compliance with the abovementioned guarantees of the Constitution and the European Charter of Local Self-Government and the reference of the latter in the obligation that these guarantees are also implemented through the applicable laws, the Court also recalled that based on Article 17 (Own Competencies) of the Law on Local Self-Government, municipalities have “full and exclusive” competences in providing public pre-school, primary and secondary education, including the registration and licensing of educational institutions, recruitment, payment of salaries and training of education instructors and administrators. On the other hand, the Ministry of Education and Science, based on the Law on Pre-University Education and the Law on Municipal Education, among others, has the main responsibility for planning, setting standards and quality assurance of the pre-university education system and the responsibility to promote and improve the quality and efficiency of education and training through education inspection, monitoring and evaluation in order to increase the quality and oversee the implementation of applicable legislation.

Applying the aforementioned principles in the circumstances of the present case, namely the constitutional review of whether the challenged Administrative Instruction infringes on the municipal responsibilities, the Court, among others, emphasized that the full decision-making powers of the central government for the establishment and termination of pre-university level institutions in the municipalities, that was attributed to the Ministry of Education and Science, through articles 3, 6, 7 and 9 of the challenged Administrative Instruction, according to the clarifications given in the published Judgment, infringes on the “own competences” of the municipality. This is because, based on the manner specified in the relevant provisions of the Law on Local Self-Government, the Law on Education in Municipalities and the Law on Pre-university Education, the decision-making for the establishment of pre-university level institutions belongs to the municipalities. As for Articles 4 (Conditions for establishing an educational institution and a separate parallel) and 5 (Proposal for the establishment of the educational institutions or separate parallel) of the challenged Administrative Instruction, and which, among others, establish the competence of the Ministry of Education and Science, to determine the conditions that must be met by educational institutions and the separate parallels and the necessary documentation through which the fulfillment of the latter could be assessed, the Court concluded that the latter, do not infringe on the municipal “own competences”. This is because, in principle, the competence to determine the general criteria and conditions that an educational institution or separate parallel at the pre-university level must meet, through the aforementioned applicable laws and as clarified in the published Judgment, has been attributed to the Ministry of Education and Science.

The Court finally reiterated that based on the Constitution of the Republic of Kosovo, namely its Article 123, local self-government is guaranteed and regulated by law, and based on its Article 124, any administrative review of municipal acts by the central authorities in the area of their own competencies, is limited to ensuring compatibility  with the Constitution and the law. In light of this, the Court emphasized that the central government, and in the circumstances of the present case, the Ministry of Education and Science, through sub-legal acts, cannot attribute to itself additional competencies that have not been foreseen by a law approved by the Assembly of the Republic, and which may interfere with the activity of local self-government in the area of education or infringe on municipal responsibilities in this field. Such a principle in the sense of local self-government also originates from the provisions of the European Charter on Local Self-Government. The Court notes that the Constitution and the applicable laws clearly specify the separation of relevant competencies, including in the field of education, and that both levels of government are obliged to act in full compliance with the same.