The refund of preschool fees for the children of foreign service members K 2/15
‘Mandatory preschool education constitutes an element of the education system and the first stage of the education process. Therefore, the said stage may not be excluded from the constitutional guarantees arising from Article 70 of the Constitution,’ stated the Constitutional Tribunal.
On 23 February 2017 at 11 a.m., the Constitutional Tribunal publicly delivered its ruling, issued at a sitting in camera, with regard to the Ombudsman’s application concerning the refund of preschool fees for the children of foreign service members.
The Constitutional Tribunal adjudicated that Article 29(4)(4) of the Foreign Service Act of 27 July 2001 – insofar as it does not provide for the refund of preschool fees paid for children who, due to the particular conditions of a host country, have no possibility of attending a no-fee state preschool, taking preschool classes at a state elementary school, or doing any other preschool educational programme, in order to fulfil the obligation of mandatory one-year preschool education – is inconsistent with Article 70(2), first sentence, and Article 70(4), first sentence in conjunction with Article 32(1) of the Constitution.
The ruling was adopted by a majority vote.
There was one dissenting opinion, filed by Judge Małgorzata Pyziak-Szafnicka.
The Ombudsman requested the Tribunal to examine whether it was justified – in view of the realisation of the constitutional right of equal access to education – not to provide in Article 29(4)(4) of the Foreign Service Act for the right of foreign service members to be reimbursed for their children’s preschool fees incurred to fulfil the legal obligation of compulsory one-year preschool education where, due to the particular conditions of a host country, the children could not fulfil that obligation by attending a no-fee state preschool.
According to the Constitutional Tribunal, the fulfilment of the obligation of compulsory one-year preschool education constitutes an element of the constitutional right to education, provided for in Article 70 of the Constitution.
In a situation where, in the provisions of the aforementioned Foreign Service Act, the legislator has guaranteed the realisation of the right to education in the case of the children of foreign service members – by permitting the refund of school fees if, due to the particular conditions of a host country, the children have no possibility of attending a no-fee state elementary or secondary school – then the said provisions must meet constitutional requirements.
Indeed, the provisions should meet all the standards of the right to education which arise from the Constitution. For these reasons, it is unjustified not to provide for the right to the aforementioned refund in the case of the children of foreign service members if those children have no possibility of attending a no-fee state preschool, taking preschool classes at a state elementary school, or doing any other preschool educational programme, in order to fulfil the obligation of mandatory one-year preschool education.
The omission of those educational centres in Article 29(4)(4) of the Foreign Service Act infringes the principle of equal access to education, and thus also violates the general principle of equality.
The Tribunal deemed that mandatory preschool education constituted an element of the education system and the first stage of the education process. Therefore, the said stage may not be excluded from the constitutional guarantees arising from Article 70 of the Constitution.
The fact that the challenged provision on refunds does not include fees for attending a state preschool, taking preschool classes at a state elementary school, or doing any other preschool educational programme, infringes the Constitution as regards equal and universal access to free education for citizens, which is compulsory in Poland for pupils until the age of 18.
Judge Małgorzata Pyziak-Szafnicka filed a dissenting opinion in which she did not contest the determination in the present case, but challenged the composition of the adjudicating bench that on 15 February 2017 had considered the Ombudsman’s application for the exclusion of Judge Mariusz Muszyński and Judge Lech Morawski from the consideration of the present case; the said application had been dismissed by the Constitutional Tribunal in its decision of 15 February 2017.
The hearing was presided over by Judge Michał Warciński, and the Judge Rapporteur was Judge Mariusz Muszyński.