The Greek judiciary will be the one to judge the issue of establishment and operation in our country for non-state universities, says the scientific service of the Parliament.
The scientific service of the Parliament in the report on the bill for non-state universities states characteristically that “in the light of the provisions of the Constitution, the jurisprudence of the Council of State (OlStE 3457/1998 and others), the fact that higher education belongs, under the jurisdiction, in the member states of the Union, of the latest jurisprudence of the Court of Justice of the European Union, [..] in relation to the Greek legal order, and the interpretation of the Constitution understood as objective, the question will be decided, as can almost certainly be assumed, by the Greek judiciary, given that the issues that may arise from the passing of the bill under discussion they have not concerned, in their specific form, justice, national and union”.
In more detail, the Scientific Service of the Parliament states the following: “..two possibilities emerge, regarding the permissibility of the provision of higher education in Greece by branches of foreign universities and the academic recognition of the granted titles:
First, the jurisprudence to confirm the interpretation held to this date, which is embraced by part of the theory, judging, firstly, that the grammatical formulation of the constitutional provision yields a clear negative position, which cannot be overturned in the context of interpretive adjustment (as opposed to , e.g., in the case of the imposition of tuition fees in postgraduate studies, for which OLStE 2411/2012 accepted that the drafting legislator did not have in mind, in 1975, the institutional framework and the operating costs of postgraduate studies (paragraph 8 )) and, secondly, that the exercise of the fundamental freedoms of Union law is sufficiently protected by the recognition of professional rights in foreign university degrees granted for studies in national branches, the operation of which, after all, can be subject to public supervision.
Secondly, to change the jurisprudence, and to accept that paragraph 5 of article 16, in which higher education is provided “exclusively” by institutions that are legal entities under public law, refers only to domestic institutions, as assumed, interpreting paragraph 8 of article 16, the minority in OLStE 3457/1998, and is supported by part of the theory. Such an interpretation would be inspired by the fact that, in the area of the European Union, there are relatives, in relation to the domestic regulation, characteristics, in legal classes that are similarly interested in the particular nature and social mission of higher education, so that the bending of the universal exclusion in favor of foreign institutions that have such characteristics may be considered compatible with the ratio of the country’s Constitution.
The said interpretation is compatible with the law of the Union as it concerns the organization of the national education system according to article 165 of the Treaty on the Functioning of the European Union. At the same time, under the assumption that the jurisprudence of the CJEU will be applicable, as formulated in the case of Latvia, the protection and observance of these characteristics may, within the European educational and cultural diversity, establish a compelling public interest, in the sense of the jurisprudence of the CJEU. Furthermore, the exclusion of the provision of higher education that does not have such characteristics (but, for example, involves the pursuit of profit) must be considered in line with the principle of proportionality, as it does not affect the current system of recognition of professional rights acquired through studies provided in the context for-profit educational activity (see, in this regard, also the observation G. I. and the jurisprudence mentioned there).
It is understandable that, in the context of such an objective interpretation, paragraph 8 of article 16 of the Constitution would be interpreted narrowly and according to its letter, that is to say that it only concerns and prohibits the establishment, in the sense of establishment, of universities by private individuals, and not the establishment in Greece of universities already existing abroad and recognized in Greece that meet the relevant conditions. In this context, and in the light of the social mission of education, as it is understood in the Greek Constitution, the branches of foreign higher educational institutions can only have a non-profit character, with the sole purpose of promoting education, research and culture , and with guaranteed meritocracy, accessibility, academic freedom of members of the academic community and a certain degree of internal self-governance on academic issues.
Finally, it is supported in theory, and the opinion that the issue belongs, exclusively, to the regulatory field of European Union law, with the thought that it concerns the conditions under which foreign A.E.I. they can establish themselves and offer services in Greece, i.e. within the single market. This position likewise presupposes a change in the jurisprudence which, according to the above (under II), distinguishes between academic and professional recognition. This opinion argues, in this case, that the refusal to recognize academic rights constitutes discrimination in the context of EU law. or, in any case, hinders the freedom of establishment, in a way that cannot, according to the same, be objectively justified.
In light of the provisions of the Constitution, the jurisprudence of the Council of State (OG 3457/1998 and others), the fact that higher education belongs, by competence, to the member states of the Union, the latest jurisprudence of the Court of Justice of the European Union, as it is analyzed above in relation to the Greek legal order, and the interpretation of the Constitution understood as objective, the issue will be decided, as can almost certainly be assumed, by the Greek judiciary, given that the issues that can be raised by the vote of the bill under discussion have not concerned, in their specific form, justice, national and EU”.
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