On 19 February 2014, the Georgian Parliament discussed a legislative initiative submitted by the Government of Georgia. The draft bill concerns the amendments to be made to the following laws: Law of Georgia on Higher Education, Law of Georgia on Legal Entity of Public Law and Law of Georgia on State Procurement. The draft bill aims to increase the autonomy of the higher educational institutions having the status of legal entities of public law (LEPL). In particular, it will facilitate the performance of the state procurement activities of certain objects by the public universities through simplified procedures.
While delivering his speech at the sitting, Member of the Parliamentary Minority, Sergo Ratiani, declared with respect to the abovementioned draft bill: “The state can shut down universities [LEPLs]. This not acceptable and it should be changed. We expected the Ministry of Education and Science of Georgia to elaborate a far more comprehensive package of the draft bill that will treat universities having the status of an LEPL as European style universities and not as state organisations. There [in Europe], an LEPL implies a rather nationwide and completely independent institution.”FactCheck
looked deeper into the abovementioned statement.
The Law of Georgia on Legal Entity of Public Law regulates the procedures of the setting up of an LEPL as well as its activities and organisation (Article 1).
An LEPL (legal entity of public law) is an organisation separate from the legislative and executive governmental bodies established under a resolution of the Government of Georgia or an administrative decree of a respective governmental entity that independently conducts political, state, social, educational, cultural or other public activities under state control (Article 1, Paragraph 1).
Article 17 of the aforementioned law regulates the liquidation process of an LEPL. According to the current Article, the liquidation process is executed by liquidators appointed by the state’s controlling agency. The head of the LEPL can serve as a liquidator. In addition, the statutory document of the LEPL should comprise the procedures and conditions of the liquidation process (Article 6).
The Law of Georgia on Higher Education concerns the higher educational institutions established by the state. In particular, a higher educational institution established by the state as well as a legal entity established by the state with a view to the acquisition of the status of a higher educational institution can be reorganised or liquidated by the Government of Georgia commensurate with the law under the submission of whose authority the institution/entity concerned was founded (Article 13).
Ivane Javakhishvili Tbilisi State University is a good example of the aforementioned. According to its Charter, the reorganisation and liquidation of the University is realised by the Government of Georgia in accordance with Georgian legislation if proposed by the Ministry of Education and Science of Georgia (Article 49, Paragraph 2).
A higher educational institution having the status of an LEPL is established by the administrative decree issued by the respective state agency (e.g., a ministry).According to the General Administrative Code of Georgia, an administrative agency that issued an administrative decree may declare it invalid [invalidation of an administrative decree automatically means liquidation]
a) The invalidation is expressly required by the law or the regulation that was adopted by a higher agency pursuant to the law.
b) The invalidation is expressly required by the administrative decree in accordance with the law.
c) The interested party failed to perform the obligation prescribed by the administrative decree which may constitute the ground for declaring the decree invalid.
d) The respective normative act was revoked or amended, thus depriving the administrative agency of the possibility to issue the decree and when the decree may inflict substantial harm to state and public interests.
e) There is a newly discovered circumstance or scientific or technical discovery or invention which deprive the administrative agency of the possibility to issue the decree and when the decree may inflict substantial harm to the state and public interests (Article 61, Paragraph 2).In addition to the practice adopted in Georgia, FactCheck
also took interest in the European experience concerning LEPLs. The European practice in respect to the state (public) universities is somewhat different. Some European governments can liquidate universities while some others cannot. Several examples of European universities are given below:University of Berne - Switzerland It is a widespread fact that Switzerland is divided into cantons with each of them having its own regulation. The University of Berne belongs to the Canton of Berne. The Regulation
on Universities oversees the activities of the state (public) universities. Article 132 of the aforementioned law indicates that the Canton is authorised to liquidate a university.Ghent University - Belgium We got in touch with Ghent University which is a state (public) higher educational institution and obtained information directly from its representatives. According to their words,
the state has no authority to liquidate a university.Denmark There are seven public (state) universities in Denmark with all of them having their own charters. Additionally, the University Act
regulates the activities of the public universities. The Ministry of Education of Denmark can liquidate a university and this was also confirmed for us by a representative of the Technical University of Denmark.
As became clear from the aforementioned analysis, the Government of Georgia has the authority to liquidate Georgian higher educational institutions having the status of legal entities of public law. Nevertheless, the liquidation process can only be enacted in certain cases envisaged by the law. Therefore, the state has no complete freedom to shut down a university without any serious grounds.
A similar practice is exercised by some European universities including several Swiss and Danish higher educational institutions. However, the abovementioned practice is not shared in other countries (e.g., Belgium). Hence, Ratiani is inaccurate when declaring that in Europe the public (state) universities are absolutely independent.Thus, Sergo Ratiani’s statement: “The state can shut down universities [LEPLs]. This not acceptable and it should be changed. We expected the Ministry of Education and Science of Georgia to elaborate a far more comprehensive package of the draft bill that will treat universities having the status of an LEPL as European style universities and not as state organisations. There [in Europe], an LEPL implies a rather nationwide and completely independent institution,” is HALF TRUE.