Defending the Central European University: options for invoking EU law
The Central European University is facing severe restrictions after a modification to the Hungarian Higher Education Act. This blog article argues that EU free movement law could be relied upon to challenge that amendment and that, considering the particularly egregious violation of Union law at issue, it is unlikely that the restrictions would be upheld.
The Hungarian government is taking steps to close down the Central European University. The modification to the Hungarian Higher Education Act in a basic sense stipulates that a foreign (non-EU) University must have an active campus in its State of origin. In addition, an agreement must be reached between the origin state and Hungary concerning provision of the education in question. Pending compliance, the institution is banned from enrolling new students in to any programs.
Whereas the amendment is phrased in general terms, in practice only the CEU is affected: It is incorporated in the US but only has an active campus in Hungary. The question in that respect arises whether there are options for the CEU to challenge these restrictions. Apart from the possibilities under domestic constitutional law or under the European Convention of Human Rights, it is submitted that also EU law can play a role.
In that respect, several elements should be considered.
The wholly internal situation
An initial difficulty concerns the ‘wholly internal situation’ – the rule that EU (free movement) law only applies in situations that include some kind of cross-border link.
This should not concern us overly. In Case 42/87, Commission v Belgium, the Commission initiated an action before the Court of Justice against the Belgian authorities as a result of their higher education financing legislation. Following the Court’s ruling in case 293/83, Gravier, in which the Court struck down the Belgian provisions charging differential tuition fees based (directly/indirectly) on the nationality of the students, Belgium duly amended the relevant legislation. However, in its higher education financing provisions it limited the amount of funding available for higher education institutes for, in essence, foreign students.
Despite this measure being limited to the territory of Belgium, the measure did of course indirectly affect foreign students coming from abroad: the Court thus found this to violate what is now Article 18 TFEU, which prohibits discrimination on grounds of nationality.
Two important points should be taken from this:
- Where Member State legislation operates to the detriment of foreign students, this is a matter that can be tested for compliance with EU free movement law.
- Universities, as providers of education, can invoke EU free movement and non-discrimination provisions – this also follows from the C-153/02, Neri.
The situation of the CEU
The CEU can be considered to have a dual ‘American-Hungarian nationality’ for the purpose of EU free movement law. However, ‘third-country nationals’ do not fall within the scope of EU free movement law. And the ‘Hungarian’ part of the CEU is situated in Hungary.
Nevertheless, the CEU has a variety of cooperation agreements with other Universities and, perhaps more importantly, attracts students and staff from all over the European Union.
Preventing the CEU from enrolling new students will certainly affect both the mobility of this international student body (no new enrolments), staff (no students, no work) and the operation of cooperation (e.g. education exchange) agreements. Moreover, legislation that puts into doubt qualifications earned by students without this being justified by reference to e.g. doubts as to the quality of the provided education was also found to restrict the freedom of establishment of higher education institutes (Neri, para. 42-43).
The legislation in question can thus be challenged on the grounds of Article 21 TFEU (‘liable to restrict the exercise of free movement rights’) as well as Article 49 TFEU (liable to restrict the exercise of the freedom of establishment of the CEU, a privately funded university). In addition, since EU free movement law is applicable, the Charter of Fundamental Rights is also potentially applicable following the case of Åkerberg Fransson. Article 14 includes the ‘freedom to found educational establishments with due respect for democratic principles’ as well as the ‘right to education and to have access to vocational and continuing training’. Both elements may very well be at issue here.
Is there scope for justification?
It would seem unlikely that under EU law the restriction could be justified. First, insofar the Hungarian government would invoke the need to protect the quality of (higher) education, it is questionable whether the legislative amendment is truly based on ‘objective, non-discriminatory criteria’ (Gottwald, para. 30): after all, a single institution is in effect targeted and several indications point to a personal vendetta of prime minister Viktor Orbán against the founder, George Soros.
Secondly, it is doubtful whether this goal can seriously be considered to pursued in a ‘systematic and consistent manner’ (Hartlauer, para. 55). After all, the degrees provided by the CEU are accredited by the Hungarian Accreditation Body (in addition to the US accreditation), which normally guarantees the quality of education provided.
Thirdly, it may be wondered whether there are no less restrictive measures that could be considered beyond simply prohibiting enrolment pending the outcome of negotiations (US-Hungary) in which the Central European University has no part to play.
Finally, it may very well be doubted whether proportionality in the strict sense is complied with: indeed there seems to be no legitimate objective which justifies the detriment to the interests of the institution, staff and students.
The balancing act thus falls in favour of the continued possibility of the CEU to continue its mission of ‘the pursuit of truth wherever it leads, respect for the diversity of cultures and peoples, and commitment to resolve differences through debate not denial.’
This blog is published on Law Blogs Maastricht