EU Values and the EU’s Rule of Law Action: What Place for Academic Freedom?
By Olga Ceran
Academic freedom, enshrined in Article 13 of the EU Charter of Fundamental Rights (CFR), has not been discussed extensively in the EU legal literature. What brought it into the spotlight of EU law was the democratic backsliding in Hungary. The judgment of the Court of Justice of the European Union (CJEU) in the so-called Lex CEU case, concerning the amendment to the Hungarian Higher Education Act, was the first judicial pronouncement on academic freedom in EU law (see also Kosta and Piquani (2022)). While only in a few brief paragraphs, the Court confirmed that Article 13 CFR is justiciable and encompasses an individual and an institutional dimension as well as the state obligation to respect and protect them. More recently, in December 2022, the Council adopted its implementing decision 2022/2506 on measures for the protection of the Union budget against breaches of the principle of the EU rule of law in Hungary. The decision suspended, among others, the Erasmus+ and Horizon Europe funds for institutions under the management of public interest trusts where conflicts of interests were said to raise concerns about their transparent use of EU funds. Several Hungarian universities brought actions for annulment against this decision. While only their main arguments are known at this stage, one of the actions alleges also an infringement of Article 13 CFR – for the first time in reference to the action of EU institutions rather than Member States.
These developments confirm in practice what has already been pointed out in the literature: that rule of law, democracy, and academic freedom are intertwined (e.g. Ramanujam and Wijenayake (2022)). Nevertheless, what this means for EU action remains underexplored. While the EU’s toolbox for the protection of democracy and the rule of law has grown in recent years and has been widely discussed (e.g. Pech (2022)), academic freedom is not explicitly a part thereof and there is no specific instrument for its protection. (It is worth noting, however, that its inclusion in the Rule of Law Reports has been advocated by, e.g. Scholars at Risk.) Stakeholders frequently perceive the current situation as lacking and new proposals have been raised (see an overview of the institutional initiatives in Kosta and Ceran (2024) or other policy proposals in the Report from the Our Rule of Law Academy (2023)). However, these academic freedom debates have not yet reflected in depth on how academic freedom protection fits within the EU rule of law toolbox and how different instruments – both future and existing – can best complement each other. It is suggested here that such a reflection should explicitly draw from the discussions on the democratic justification of academic freedom, which is already recognized – as will be discussed below – in EU law and policy. These discussions can serve as a reference point for the analysis of the conceptual relationships between academic freedom, on the one hand, and democracy or the rule of law as respective EU values under Article 2 Treaty on European Union (TEU), on the other hand. This can potentially have consequences for the EU’s action under the already existing rule of law framework as such.
Academic freedom and its democratic justification in EU law and policy
Theoretical reflection on the rationale and scope of academic freedom as a human right, both in general and as enshrined in Article 13 CFR, is relatively scarce. As observed by Kosta (2020), little philosophical work exists on the topic and even fewer legal scholars have investigated these questions in depth. The typical justification grounds academic freedom in the philosophy of science and its truth-seeking mission more broadly. This epistemological justification has however been both rejected and complemented by other, socio-political justifications where academic freedom is granted to serve some needs of society – including its service to democracy (e.g. Lynch (2018)). The many ‘underlying rationale(s)’ of academic freedom in the EU context – in particular regarding any normative proposals – are yet to be explored in detail and such work is already in progress (see the AFITE project). However, without aspiring here to a coherent theoretical account of academic freedom, one can observe that connections between academic freedom and democracy or (albeit to a lesser extent) the rule of law are widely noted by different EU actors.
One can mention a few recent examples of such pronouncements. The European Parliament’s Recommendation of 29 November 2018 to the Council, the Commission and the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy on Defence of academic freedom in the EU’s external action, 2018/2117(INI) declares that ‘there can be no democracy without the academic freedom that enables informed debate’ (Point D) and ‘there is a general need both to raise awareness of the importance of academic freedom as a tool to promote democracy, respect for the rule of law and accountability, and to create opportunities to improve the capacity for its advocacy and defence’ (Point Q). The European Commission, the guardian of the Treaties, seems to embrace this type of a discourse as well. It features in multiple and diverse policy documents, and seems to be implicit – in reference to EU values – in the Commission’s own suggestion that Article 13 CFR concretises the EU value of democracy. Also, the Council, despite its typically more reserved approach, has embraced this democracy-related discourse in the past. In its conclusions on a European strategy empowering higher education institutions for the future of Europe, one reads that ‘HEIs [higher education institutions] should be supported in their efforts […] to defend democratic values. In that respect, HEIs are a safeguard for democracy’. One can also find a plethora of such examples outside of the EU structures as such. Most importantly, Annex I to the Rome Ministerial Communiqué of the European Higher Education Area (EHEA) issued within the Bologna Process (taking place with the participation of all Member States and the EU Commission) and explicitly concerned with academic freedom as a fundamental value, recognizes that ‘[a]cademic freedom is also an essential element of democracy’, but at the same time ‘cannot be fully realised except in democratic societies’. In that, it directly hints at the mutual interdependence of the two.
Legal pronouncements on the relationship between democracy, the rule of law, and academic freedom are harder to find. Explicitly, references to the value of EU investments in education for the democratic Union and society are included in the recitals to the Erasmus+ Regulation. However, more importantly, the European Court of Human Rights (ECtHR) recognizes the critical role of academia ‘in a given political system’ and guarantees its freedom to disseminate views and opinions based on professional expertise of academics. It is worth recalling the joint concurring opinion of Judges Sajó, Vucinic and Kuris, emphasising that ‘[t]here is no Chinese wall between science and a democratic society. On the contrary, there can be no democratic society without free science and free scholars. This interrelationship is particularly strong in the context of social sciences and law, where scholarly discourse informs public discourse on public matters including those directly related to government and politics’. The CJEU in the Lex CEU casedid not discuss academic freedom in reference to democracy, but it did make a reference to the ECtHR jurisprudence and the Council of Europe (CoE) Recommendation 1762(2006), a document that embeds such an account of academic freedom. It can be therefore argued that, in light of Article 52(3) CFR, the democratic justification cannot be foreign to EU law either, even if the exact degree and dimensions of its relevance still remain open questions.
Many of the documents mentioned above – in contrast to Judges Sajó, Vucinic and Kuris – do not elaborate on the relationship(s) between democracy and academic freedom in more detail. However, in broad terms, they all take academic freedom as necessary (or at least beneficial) for democracy, with the rule of law at times added to the picture. This is in line with three core, interdependent dimensions of the democratic justification of academic freedom that have been recognized in the literature: (1) the fostering of democratic culture (e.g. Post (2013)), or the rule of law culture (e.g. Ramanujam and Wijenayake (2022)); (2) the role of academia in the marketplace of ideas and the verification of truth claims (e.g. Uitz (2020));and (3) its position as a watchdog of governmental action, ensuring its accountability (e.g. Karran (2009)). This is not to deny that one will find many other objectives and visions put forward for European research and education as well as their freedoms. This concerns in particular the accomplishment of Europe as a competitive economy and the realization of socio-economic goals (see Kosta (2024)). They must not be (at least not a priori) fully distinct or mutually exclusive (Fish (2014), p. 7). However, this brief discussion demonstrates that academic freedom has been widely and explicitly linked to democracy and the rule of law in EU policy and the democratic justification for its protection can plausibly be part of its broader rationale in EU law. This can have consequences for the legal interpretation of not only academic freedom, but also the other EU values. Therefore, it is necessary to further explore how academic freedom protection can be enhanced in reference to its relationship with democracy and rule of law, and vice versa.
Academic freedom among EU values
The discussion above already suggests – albeit implicitly – that the relationship between academic freedom and democracy or the rule of law depends on one’s understanding of the concepts. This debate relates to the broader discussions about the relationship between democracy, the rule of law, and human rights. For example, if democracy is perceived narrowly, as a structure of governance by the people, and not as liberal democracy more specifically (as is arguably the case under Article 2 TEU, see Bouzoraa (2023)), academic freedom might play a lesser role than argued above. It is therefore both worthwhile and necessary to investigate these relationships under EU law specifically. Since democracy and the rule of law are explicitly recognized as EU values and protected by Article 2 TEU, this provision can serve as an anchor for this investigation.
Article 2 TEU reads: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights […]’. In that, democracy and the rule of law are explicitly EU values. Academic freedom does not feature in Article 2 TEU explicitly but is broadly encompassed by this provision as well. First, academic freedom is clearly a fundamental human right, as recognized by the EU Charter itself. Second, Chapter II CFR – encompassing Article 13 CFR – can be seen as specifying the different kinds of ‘freedom’ as a value-concept (see also European Commission (2022), p. 51). Whether this could be sufficient to operationalize Article 2 TEU for academic freedom independently and outside of the well-recognized constraints of EU law remains an open question. More is known, however, about its relationship to the EU value of democracy. In the EU legal context, scholars have argued for what can be labelled as a ‘thicker’ concept of democracy, going beyond the features of the political system and including ‘the necessary pre-conditions for a well-functioning [liberal] democracy’ (Bouzoraa (2023), p. 809, 813). While the literature accepts that several provisions of the EU Charter – such as freedom of expression (Art. 11 CFR) – ‘link directly to this value’, academic freedom has not been mentioned among them (Bouzoraa (2023), p. 831-832). Nevertheless, this seems to have changed now with the Commission’s own assessment on which provisions of EU law give expression to the EU value of democracy (European Commission (2022), p. 52). In that, academic freedom protection can be seen as instrumental to democracy, and a violation of academic freedom could lead to a (risk of) violation of the EU value of democracy – depending, obviously, on its nature. Whether this view will find broader recognition remains to be seen but creates an opening for a Commission-led action in this context.
A value related yet separate from democracy is the rule of law. Much has been written about the definition of the rule of law in general, and in EU law specifically. Detailed debates can be found elsewhere, but – according to most scholars – this EU value also has a substantive dimension, even if one can find different accounts of what it entails (Ioannidis & von Bogdandy (2014)). As argued by Pech (2022), ‘the understanding and approach promoted by both the Council of Europe and the EU may be said therefore to amount to a thick/substantive conception of the rule of law rather than a thin/formal one’, in a ‘mutually reinforcing relationship with democracy and respect for human rights’. The Venice Commission also recognizes that ‘respect for the rule of law and respect for human rights are not necessarily synonymous’, but there is ‘a great deal of overlap’. For example, freedom of expression is said to have ‘rule of law connotations’ as it ‘permits criticism of the government of the day’. This reflects the same type of justification as that put forward for its relevance to democracy – to prevent the arbitrary exercise of power. Such a broad interpretation (at least in some contexts) is confirmed, inter alia, by the scope of the EU Rule of Law reports that include media freedom. From this perspective, academic freedom could also be said to have rule of law connotations. Simultaneously, the Commission recently conceptualised the value of rule of law in reference to a more limited set of EU legal provisions: Articles 47 and 48 CFR, Article 19(1)(2) TEU, Article 7 TEU, and the Conditionality Regulation. In that, the overlap with some fundamental rights is recognized, but the Commission seems to place more focus on procedural guarantees than substantive considerations. This also seems to be reflected in the specific definition of the rule of law provided in the Conditionality Regulation (Article 2(a)). While this definition ‘by no means shifts the rule of law from an EU value enshrined in primary law to a mere legal concept of secondary EU law’ (European Commission (2022), p. 52), the exact relationship between the different values has not been clarified fully, be it under primary or secondary law. This lack of conceptual clarity might both open avenues for novel interpretations and hinder EU action aimed at academic freedom protection under the guise of rule of law, if any. This does not, however, change the fact that academic freedom benefits from all the rule of law safeguards at large (as do all fundamental rights). Further, in some cases, circumstances giving rise to violations of academic freedom might simultaneously violate the rule of law, and vice versa, as demonstrated by the developments concerning Hungary. Examples of such violations will be predominantly of systemic character and have to do with the lack of safeguards against the arbitrary exercise of executive power by public authorities in the science and higher education sector (which can amount simultaneously to non-compliance with obligations inherent in academic freedom). In that, the two values are indeed mutually reinforcing and can be usefully mobilized together.
Concluding remarks: what protection for academic freedom in the EU’s rule of law toolbox – and beyond?
A closer attention to the specific relationship of academic freedom with democracy and the rule of law under EU law, informed by theoretical insights, can open some doors for new avenues for EU action and highlight where the need for (what kind of) complementary protection might be the greatest. Preliminarily, a few suggestions can be made. If autonomous application of Article 2 TEU, currently much debated in EU law, was accepted, this could potentially allow to operationalize Article 2 TEU for academic freedom protection outside of the well-recognized constraints of EU competence. Alternatively, in a more reserved manner, one could investigate further the suggestions put forward in the literature for the ‘mutual amplification of Article 2 TEU and Charter rights’ (e.g. Spieker (2019)) in the context of academic freedom specifically. This could further be relevant for the application of Article 7 TEU which contains a specific enforcement procedure for cases where there is a (risk of) ‘serious and persistent breach’ of EU values by the Member States. Difficulties in the application of this provision are widely known, but it extends well beyond the scope of application of the Charter and allows to circumvent some of the issues identified as obstructing academic freedom action. A similar argument could be made in reference to the Rule of Law Conditionality Regulation, with its application to Hungary already illustrating how academic freedom issues can at times be simultaneously framed as rule of law issues as well. A reflection on these questions could also contribute to the discussions about the shape of new legislative proposals.
What should also be analysed in this context is the interplay between different types of threats to academic freedom and between the different justifications for its protection, as they might pull in different directions. Research published by the Panel for the Future of Science and Technology of the European Parliament (STOA) indicates that the overall state of academic freedom in the EU is ‘eroding’ along the democratic decline observed in Hungary, but there are also other threats observed across the EU (e.g. from non-governmental actors). As there are various threats and various possible actions to mitigate them, emphasis on one justification of academic freedom (over others) might have implications for the design and choice of the preferred or acceptable type(s) of action. Along these lines, Fish (2014) warns that ‘once academic freedom is justified because of its supposed contribution to democracy, the question put to it changes, no longer how will this or that version of academic freedom advance the doing of academic work, but how will this or that version of academic freedom advance the project of democracy’ (p. 44). Different ‘versions’ of academic freedom might therefore call for different types of measures, and the EU rule of law toolbox may not be best suited for them all. For that reason, the design of new measures should build on a deeper reflection – already ongoing – on the meaning and rationale of academic freedom in EU law, both in the context of the rule of law action and independently.
About the Author
Olga Ceran is a Postdoctoral Researcher at Leiden University in the Netherlands. She is a team member of the NWO Vidi project “The EU Fundamental Right to ‘Freedom of the Arts and Sciences’: Exploring the Limits on the Commercialisation of Academia” (AFITE) led by Dr Vasiliki Kosta. Her current research focuses on comparative constitutional law as a building block for establishing the content of Art. 13 of the EU Charter of Fundamental Rights (‘freedom of the arts and sciences’). Olga holds a PhD in Law and an LLM in Comparative, European and International Laws from the European University Institute (Florence, Italy) as well as a Master’s degree in law from the University of Wrocław (Poland). Before joining Leiden University, she worked for the Polish Academy of Sciences. In 2018-2020, she was a Managing Editor of the European Journal of Legal Studies and she remains a member of its Editorial Board. Olga’s broader research interests include comparative law, EU fundamental rights, and methodological approaches to EU law and Europeanisation. She is particularly interested in effects produced by EU law and policy in areas remaining (primarily) outside of EU competence.
Citation: Olga Ceran, EU Values and the EU’s Rule of Law Action: What Place for Academic Freedom?, in: TRAFO – Blog for Transregional Research, 17.10.2024, https://trafo.hypotheses.org/53356
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Forum Transregionale Studien (17. Oktober 2024). EU Values and the EU’s Rule of Law Action: What Place for Academic Freedom? TRAFO – Blog for Transregional Research. Abgerufen am 2. November 2024 von https://doi.org/10.58079/12in2