Constitutional Court

KO164/21, Applicant: Municipality of Prishtina, Constitutional review of Article 6, paragraph 3, points 3.1 and 3.2 of Administrative Instruction (MEST) no. 151/2020 of the Ministry of Education, Science, Technology and Innovation of 22 December 2020

The Constitutional Court of the Republic of Kosovo decided regarding the referral in case KO164/21, submitted by the Municipality of Prishtina, which based on paragraph 4 of Article 113 [Jurisdiction and Authorized Parties] requested the constitutional review of points 3.1 and 3.2 of paragraph 3 of Article 6 (The selection commission) of Administrative Instruction no. 151/2020 of 22 December 2020 of the Ministry of Education, Science, Technology, and Innovation (MESTI). 

In the constitutional review of the challenged Administrative Instruction, the Court, unanimously, decided to (i) declare the referral admissible; and hold that (ii) points 3.1 and 3.2 of paragraph 3 of Article 6 (The selection commission) of the Administrative Instruction [no. 151/2020] of 22 December 2020 of the Ministry of Education, Science, Technology, and Innovation, are not contrary to paragraph 2 of Article 12 [Local Government], paragraph 1 and 3 of Article 123 [General Principles] and paragraph 2 and 3 of Article 124 [Local Self-Government Organization and Operation] of the Constitution of the Republic of Kosovo.

The circumstances of this particular case are related to the announcement of the vacancy by the Municipal Education Directorate in the Municipality of Prishtina for filling a number of positions for directors and deputy directors of public educational and pre-university training institutions in the Municipality of Prishtina. According to the Education Inspectorate, the Selection Commission established by the Municipality was contrary to the applicable law, namely (i) Article 5 (Competencies of the Municipalities in Public Education Levels 0, 1, 2, and 3 (Pre-Primary, Primary, Lower Secondary and Upper Secondary)) of the Law on Education in the Municipalities, which stipulates that for the three (3) members of the Selection Commission for directors and/or deputy directors, two (2) are appointed by the respective municipality, while one (1) of the members of the Commission is appointed by MESTI; and (ii) points 3.1 and 3.2 of Article 6 of the challenged Administrative Instruction, according to which the Selection Commission for educational institutions that are subordinate to the municipality consists of (i) two (2) members of the municipality who are proposed by Municipal Education Directorate  and approved by the Municipal Assembly; and (ii) one (1) member who is appointed by MESTI. This is because the Selection Commission appointed by the Municipality was not voted by the Municipal Assembly and the representative of MEST withdrew from it.

As a result, the Applicant challenged before the Constitutional Court the aforementioned Administrative Instruction, namely the competence of MESTI, to appoint one (1) member of the Selection Commission, alleging that this interfered directly with the municipal responsibilities in violation of Law no. 03/L-040 on Local Self-Government, namely point h) of Article 17 (Own Competencies) of this law, where it is stipulated that municipalities have “full and exclusive” competencies in the provision of public pre-primary, primary and secondary education; and consequently also with (ii) Article 54 [Judicial Protection of Rights] and paragraph 4 of Article 113 of the Constitution; as well as (iii) the European Charter of Local Self-Government.

In addressing the allegations of the Municipality of Prishtina, the Court first elaborated on the general principles related to local self-government according to the Constitution, the European Charter of Local Self-Government, the relevant Opinions of the Venice Commission, the laws in force of the Republic of Kosovo, as well as the Constitutional Court case law. In this context, the Court, based on Articles 12 [Local Government], 123 [General Principles] and 124 [Local Self-Government Organization and Operation] of the Constitution, respectively, among others, reiterated that: (i) basic territorial units of local self-government in the Republic of Kosovo are municipalities and that the organization and competencies of local self-government units are regulated by law; (ii) municipalities have “own” , “extended”, and “delegated” competencies; and that (iii) the administrative review of municipal acts by the central authorities in the field of their competencies, is limited to ensuring compliance with the Constitution and the law. Moreover, based on these constitutional articles, the Court noted that the activity of local self-government bodies is based on the Constitution and laws, and respects the European Charter of Local Self-Government. The latter, among others, and insofar as it is relevant to the circumstances of the present case stipulates that: (i) local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority; (ii) the competencies given to local authorities shall normally be full and exclusive, and they may not be undermined or limited by another, central or regional, authority except as provided for by the law; and that (iii) any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the Constitution or by law.

In the light of the above, the Court noted that the main law that defines the competencies of municipalities is the Law on Local Self-Government and the same has stipulated that municipalities, among other things, are bearers of their own competencies in some areas, and as such, exercise them as “full and exclusive”. Furthermore, the Court stated that the Law on Education in Municipalities and the Law on Pre-University Education are also laws which further regulate aspects of education and schooling, defining the competencies for municipalities and for MESTI. In this context, based on its case law, the Court emphasized the fact that based on Article 124 of the Constitution, among other things, (i) Municipalities have the obligation to respect the law; and (ii) the administrative control of municipal acts by the central authorities shall be in accordance with the law.

In the circumstances of the present case, the Court noted that the content of the Administrative Instruction challenged by the Municipality, namely points 3.1 and 3.2 of paragraph 3 of its Article 6 regarding the composition of the Selection Commission and which, according to the Municipality, interferes with the relevant independent competencies in opposition with the aforementioned provisions of the Constitution and the European Charter of Local Self-Government, originates from the provisions of the Law on Pre-University Education and the Law on Education in Municipalities, namely their articles (Competencies of the Municipalities in Public Education Levels 0, 1, 2, and 3 (Pre-Primary, Primary, Lower Secondary and Upper Secondary)) and 20 (The management staff), respectively. The challenged Administrative Instruction does not exceed the content of the law, nor does it define increased competence of MESTI in the selection of directors and deputy directors of educational institutions beyond what is stipulated by the applicable legislation.

Based on the above, the Court Judgment clarifies that based on point d) of Article 5 of the Law on Education in Municipalities and paragraph 1 of Article 20 of the Law on Pre-University Education, directors and deputy directors of educational institutions are selected in accordance with the legal procedures defined by MESTI, by a commission appointed by the Municipal Assembly, in which two (2) members will be from the Municipality and one (1) from MESTI. The challenged Administrative Instruction has the same content. As such, the same does not exceed the municipal competencies defined by the Law on Education in Municipalities and the Law on Pre-University Education and also, in the circumstances of the specific case, does not infringe the responsibilities of the Municipality according to the provisions of paragraph 4 of Article 113 of the Constitution.

Consequently, and relying on the aforementioned constitutional principles, the Court ascertained that the relevant provisions, namely points 3.1 and 3.2 of paragraph 3 of Article 6 of the challenged Administrative Instruction, are not contrary to the provisions of the Law on Local Self-Government, the Law on Education in the Municipalities, the Law on Pre-University Education and the Law on Education Inspectorate, and therefore do not infringe the municipal responsibilities guaranteed by paragraph 2 of Article 12 [Local Government], paragraph 1 and 3 of Article 123 [General Principles], and paragraph 2 and 3 of Article 124 [Local Self-Government Organization and Operation] of the Constitution.