On October 29, 2025,Footnote ¹ the Hellenic Council of State (HCT),Footnote ² sitting in plenary formation, issued a landmark judgment reviewing the compatibility of Law 5094/2024,Footnote ³ Greece’s new statute authorizing the establishment of branch campuses of foreign universities, with Article 16(5) of the Greek Constitution.Footnote ⁴ The HCT assessed, for the first time, whether the long-standing constitutional prohibition on private higher-education institutions could be reconciled with Greece’s obligations under European Union law and the General Agreement on Trade in Services (GATS).Footnote ⁵ The decision of the HCT cannot be appealed or annulled.

In a nutshell, the HCT held that Greece, despite remaining unbound on market access under the GATS, is required to provide access to its market on a non-discriminatory basis by virtue of its national-treatment obligation in GATS Article XVII. The Court adopted a reading of the EU’s GATS commitments that effectively annuls Greece’s specific market-access reservation by allowing a full liberalization of the Greek higher-education market for all World Trade Organization (WTO) members. The case sits at the intersection of three normative orders, national constitutional law, EU law, and multilateral trade law under the GATS, as the HCT was required to assess seemingly contradictory domestic constitutional obligations with EU and international trade law. The HCT judgment serves as a reminder that, even without direct effectFootnote ⁶ international trade law obligations may decisively impact how domestic law is interpreted, and national judges should be ready to adjudicate upon such complex cases. When a national court misapprehends international commitments, the consequences may extend well beyond the specific dispute. They may erode constitutional protections and values, generate unanticipated state liability, and, as this case illustrates, irreversibly, absent formal renegotiations under the GATS, alter the balance of rights and obligations negotiated under multilateral trade agreements. The decision sits at the forefront of the discussion on how national courts should engage with international law when adjudicating constitutional disputes.

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The proceedings before the HCT, sitting in plenary formation, arose from three applications for annulment directed against two ministerial decisions of the Ministry of Education. The first decision concerned the initiation of the procedure for submitting applications for the licensing of foreign university “branches” in Greece. The second decision concerned the designation of internationally recognized ranking agencies competent to classify university institutions globally. Because the Greek legal system does not provide for abstract constitutional review of legislation, these actes préparatoires served as the vehicle through which the applicants sought to contest the constitutionality of Law 5094/2024.Footnote ⁷

The case required the HCT to assess how Article 16(5) of the Greek Constitution, which restricts the provision of higher education to public law entities, should be interpreted in light of EU law and Greece’s international commitments. As part of the analysis, the HCT had to interpret the European Union’s Schedule of Specific Commitments under the GATS, and, in particular, the effect of the Greek-specific entry “Unbound for education institutions granting recognized state diplomas” in the market-access column, combined with the entry “None” in the national-treatment column.Footnote ⁸

The GATS, a multilateral treaty on promotion of trade in services, part of the WTO Single Undertaking, has two main types of obligations.Footnote ⁹ The general obligations that apply automatically across all sectors, such as Most-Favored-Nation (MFN) treatment, and the specific commitments, i.e., market access and national treatment under GATS Articles XVI and XVII, which only apply in sectors and modes of supply explicitly listed in a member’s Schedule of Commitments. For the sectors in which such specific commitments are undertaken, each schedule must specify the terms, limitations, and conditions governing market access, as well as the terms and limitations to which national treatment is subject.

Greece’s entry in Market Access means that no commitments have been made on higher education, while its National Treatment column indicates full commitments.

As broader context, the European Court of Justice (ECJ) recently assessed a similar case in Commission v. Hungary (the CEU Case). The Court was required to assess Hungary’s reservation on market access in the EU’s Schedule of Specific Commitments. In specific, Hungary’s entry on market access reads: “Establishment of schools is subject to licence from the central authorities.”Footnote ¹⁰ Its national treatment column reads “None,” meaning that full commitments have been made vis-à-vis national treatment. The ECJ held that Hungary had breached its national-treatment obligation under GATS Article XVII by imposing additional conditions on foreign higher-education institutions operating in its territory, as the licensing requirement, although formally inscribed in the market-access column, discriminated in practice against foreign service providers.Footnote ¹¹ There is a key difference between the two EU member states, which in the end mark the key distinction between the ECJ decision on the CEU Case, and the present HCT case. In the former, the ECJ focused on GATS Article XX(2), which examines potential conflicts between market access and national treatment commitments. A condition that is formally inscribed only under GATS Article XVI allows for derogation from the national treatment obligation under Article XVII, only where the type of measures that it introduces is inconsistent with both the obligations.Footnote ¹² The effect of the simplifying rule in Article XX(2) is that, in order for a term to apply implicitly to Article XVII, i.e., to operate as a reservation to the national treatment obligation, it must introduce some form of discrimination (between domestic and foreign services or suppliers).

In other words, when a discriminatory reservation-limitation is inscribed in market access, it also applies to national treatment. To the contrary, when a reservation inscribed in market access is non-discriminatory, then national treatment applies. That was the case in the CEU Case, since the licensing limitation applied both to domestic and foreign service providers. Any discriminatory element, thus, breaches Article XVII on national treatment.

However, this is not the case with Greece. As we are not breaking new ground here, we will simply introduce the finding of the WTO Panel Report on China–Electronic Payment Services. In that case, China had inscribed “Unbound” in the Market Access column and “None” in the National Treatment column. The Panel held that an inscription of “Unbound” in the market-access column reserves the right to maintain any measure falling under Article XVI:2, regardless of entries in the national-treatment column. However, the inscription of “None” under national treatment retains practical significance. It binds the member to accord national treatment with respect to any measures not inconsistent with Article XVI:2; for instance, should the member voluntarily allow market access in practice despite having no formal commitment to do so.Footnote ¹³

In simple terms, “Unbound” means that no obligations are assumed; hence, any limitation discriminatory or not is WTO compliant. The HCT though reached a different conclusion.

Returning to the case at hand, the HCT began its analysis by reiterating its established case law on Article 28 of the Greek Constitution, which incorporates ratified international treaties and, in particular, EU law into the domestic legal order and is expressly designated as the constitutional basis for Greece’s participation in the European integration process.Footnote ¹⁴ In prior plenary decisions, the HCT had held that the interpretive declaration to Article 28 gives rise, first, to an obligation to apply the EU legal order within the domestic legal order, and, second, to an obligation to interpret and, where necessary, harmonize constitutional provisions with the rules of EU law.Footnote ¹⁵ In line with the ECJ jurisprudence on the primacy of EU law,Footnote ¹⁶ the HCT reaffirmed that Greek courts must, where a conflict arises, set aside even provisions of constitutional status that prove incompatible with directly effective EU norms.Footnote ¹⁷ In the present case, the HCT applied this principle to harmoniously interpret Article 16(5) of the Constitution with the EU legal order, which includes international obligations assumed by the EU, such as those under the GATS.

Next, the HCT considered Greece’s and the EU’s obligations under the GATS. Having established that EU-based universities enjoy a right of establishment under Article 49 of the Treaty on the Functioning of the European Union (TFEU), the Services Directive 2006/123/EC, and the Charter of Fundamental Rights, the Court turned to the question of whether Greece’s multilateral trade commitments independently required it to open its higher-education market to non-EU-based universities.

The HCT recalled the ECJ reasoning in the CEU case,Footnote ¹⁸ that the GATS, as an agreement concluded by the EU, forms an integral part of EU law and binds the institutions and member states alike.Footnote ¹⁹ The HCT then inferred that, insofar as the EU has undertaken specific commitments under the GATS in the field of higher-education services, Greece is bound to respect those commitments as a matter of EU law.

The HCT then turned to the structure of the GATS and the EU’s Schedule of Specific Commitments. It accurately summarized Articles XVI (market access), XVII (national treatment), and XX (schedules of specific commitments). The Court referred to GATS Article XX:2, which allows, for reasons of procedural simplification, measures inconsistent with both Articles XVI and XVII to be recorded only in the column relating to limitations on market access, such that a single inscription may implicitly qualify national treatment as well.

In the specific case of higher-education services, the EU’s Schedule contains, in the market-access column, an entry stating, “Unbound for education institutions granting recognized State diplomas,” coupled with a country-specific reference to Greece.Footnote ²⁰ In the national-treatment column, the entry for the same subsector reads simply “None.” The HCT understood this configuration to mean that: (1) Greece has not undertaken market-access commitments for higher-education services in respect of institutions awarding state-recognized diplomas, meaning that retains full discretion over whether to allow foreign providers into its market; but (2) Greece has undertaken full national-treatment commitments in that same sector, because the national-treatment column contains no reservation. In other words, the HCT read the Schedule as allowing Greece to close its market entirely, but requiring it to treat foreign providers no less favorably than domestic ones.

On that basis, the HCT concluded that Greece retains full discretion over market access in higher-education services. It is free to determine the terms and conditions for licensing service suppliers and may, in principle, exclude certain modes of supply or categories of providers from its market. At the same time, it held that Greece is absolutely precluded from enacting or applying legislation that discriminates between domestic and foreign providers in that sector. The Court emphasized that the Greek reservation in the market-access column is framed in origin-neutral terms since it addresses all “education institutions granting recognized State diplomas,” that is, it does not distinguish between domestic educational institutions that grant recognized state diplomas and foreign ones.Footnote ²¹ The Court reasoned as follows. Under GATS Article XX:2, a limitation inscribed in the market-access column can implicitly qualify the national-treatment column only if the measure in question is discriminatory, i.e., only if it treats domestic and foreign suppliers differently. Since Greece’s reservation applies indiscriminately to all institutions granting recognized state diplomas, the HCT held that it does not carry over to the national-treatment column as an implicit reservation.

From this, the HCT drew a broad conclusion. Since no reservation appears in the national-treatment column for higher-education services, GATS Article XVII binds Greece fully in that sector. Greece is therefore required to accord to service providers originating from third countries, i.e., all WTO members, the same treatment that it accords to domestic providers with respect to all rights recognized under national and EU law. This includes, for the HCT, the rights relating to freedom of establishment for EU higher-education service providers deriving from the Services Directive, TFEU Article 49, and the Charter. The Court thus inferred that Greece must extend the freedom to establish private higher-education institutions to all foreign services providers covered by the GATS.

On this basis, the HCT interpreted Article 16(5) of the Constitution as permitting the establishment and operation in Greece of branch campuses of foreign universities originating from EU member states or from any GATS contracting party, provided that the legislature enacts a framework ensuring a high level of studies and academic freedom. Law 5094/2024, which sets out specific licensing requirements and quality-assurance conditions for such branches, was therefore found not to infringe the Constitution when interpreted in light of Greece’s obligations under EU and WTO law. In essence, the Court held that the obligation to harmonize domestic law with EU law required Greece to set aside the text of the Constitution, since Greece was bound to provide non-discriminatory market access under the GATS.

The decision was not unanimous. A strong minority dissented on various grounds. As regards the GATS, the minority maintained, without particularly detailed elaboration, that the reservation entered in the market-access column should be read as limiting national treatment as well, thereby preserving Greece’s ability to differentiate between domestic and foreign providers. A further strand of the minority opinion reasoned that higher-education services fall outside the scope of the GATS because the public character of higher education in Greece makes them non-commercial activities, given the public character of higher education in Greece.

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The foregoing analysis reveals the fundamental error in the HCT’s reasoning. The Court was correct that Greece’s national-treatment obligation under GATS Article XVII remains intact, as the “Unbound” reservation in the market-access column does not carry over to limit it. However, that obligation would only become practically operative once Greece voluntarily chose to open its market to foreign higher-education providers, for instance, by enacting legislation such as Law 5094/2024 and introducing implementing acts. Until that point, Greece’s “Unbound” inscription reserved the right to maintain any measure falling under Article XVI:2, including a complete exclusion of foreign providers, without any GATS implications.

The HCT, however, inverted this logic. Rather than recognizing that the national-treatment obligation presupposes the existence of market access, the Court treated that obligation as itself requiring Greece to grant such access. Hence, as a matter of GATS obligations, Greece was under no such obligation; therefore, the interpretation of the HCT cannot stand. Therefore, GATS (and as a result EU law)Footnote ²² did not impose any obligation on opening up the market to foreign services providers. It should be noted that EU services providers are considered domestic providers for the purposes of the WTO.

The HCT, thus, clearly misunderstood the WTO obligations of the EU and Greece.

Notably, even the minority did not extensively analyze the GATS obligations of the EU and Greece, offering no detailed engagement with the structure of the Schedule or the effect of an “Unbound” inscription.

Separately, the partial minority objection regarding the commercial nature of higher education is also problematic. To be clear, Article 1(3) GATS excludes from its scope services “supplied in the exercise of governmental authority” which “means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.”Footnote ²³ In Greece, education is generally provided both by private and public school, with the exception being that of Higher Education for state recognized diplomas. However, many private colleges operating as branches of foreign universities have been operating in Greece. Hence, the provision of higher education (or generally education) in Greece cannot be considered as a service in the exercise of government function since private actors have long been in competition with the public universities offering education services that provide diplomas on a very wide range of scientific fields, allowing access to the corresponding professions not only in the private and public sector in Greece.Footnote ²⁴ Besides, Greece can only be seen within the general EU framework and higher education has long been considered an economic activity by the CJEU.Footnote ²⁵

As previously noted, we do not assess the substantive policy reasons behind the Greek government’s decision to open the market for higher education; however, the crystal-clear legal error of the HCT means that Greece has opened the door to an outcome that it was neither constitutionally nor EU-law-wise obliged to accept. As shown, the GATS did not impose any such obligation; therefore, neither Greece nor, by extension, the EU breached their WTO commitments by limiting the provision of higher-education services to designated Greek public bodies (or even by extending such limitations to EU-based service providers).

In essence, the Greek state, and, in practice, the EU, has exercised its discretion to liberalize its market further than required under the GATS. As a result, Greece is now bound by both the national-treatment and MFN obligations with respect to all aspects of the operation of higher-education service providers. A WTO dispute could therefore be initiated by the home state of any higher-education service provider for any issue relating to accessing or operating in the Greek market. One might imagine, for example, a Chinese state-owned university being screened out for security or other reasons,Footnote ²⁶ or being reviewed or sanctioned for receiving foreign subsidies.Footnote ²⁷ The HCT judgment thus constitutes a step that cannot easily be reversed unless renegotiations take place under the GATS.

The HCT judgments should thus have been limited to EU-based universities and, potentially, to third-country universities for which an actual commitment exists (e.g., under a Free Trade Agreement, covered by the relevant exception of the GATS in Article V, though Greece has consistently introduced a limitation on Higher-Education services in all modern free trade agreements (FTA), such as EU-JapanFootnote ²⁸ and even EU-UK,Footnote ²⁹ except the EU-South Korea FTA,Footnote ³⁰ where the reservation seems to have been misplaced to “Adult Education Services”). This would also have been a sensible option from the perspective of international policy, as Greece (and the EU) effectively surrendered a valuable bargaining chip in FTA negotiations, practically for free.

Further, it has already been noted that linking GATS obligations with the Charter of Fundamental Rights creates an avenue for private actors to seek annulment and even compensation within the EU legal order,Footnote ³¹ contrary to the previous status quo, which did not allow WTO law to operate as a basis of illegality.Footnote ³² Therefore, the HCT’s erroneous analysis expands the potential liability of the Greek state, as any restriction on market access could serve as the basis for compensation under Greek law.Footnote ³³

In sum, the judgment underscores the need for national courts to approach international economic law with greater methodological precision. When constitutional interpretation depends on the meaning of treaty commitments, domestic judges must ensure that they do not transform a carefully negotiated balance of rights and obligations into an unanticipated and irreversible form of liberalization. National judges must therefore do their homework.