The nature of the democratic justification of academic freedom

The literature recognises that many questions about the scope and nature of academic freedom are determined by the vision(s) or justification(s) thereof to which one adheres.Footnote ²⁴ Some of them (such as ‘is academic freedom a constitutional right?’ or ‘does it attach to an institution?’)Footnote ²⁵ have already been explicitly resolved in EU law, the first by EU legislators (Article 13 of the Charter) and the second by the Court of Justice (the CEU judgment). However, many others remain open. Therefore, before trying to uncover whether EU law embraces the democratic justification of academic freedom and to what extent, it is necessary to outline what it entails. Three interdependent dimensions of such justification have been previously conceptualised and discussed in the literature.Footnote ²⁶ First, academic freedom plays a role in education and fosters the democratic culture – alternatively ‘the culture of the rule of law’Footnote ²⁷ – or the development of ‘a democratic citizen’.Footnote ²⁸ Second, academic freedom – due to the sector’s focus on the discovery of truth – allows the verification of truth claims with the added benefit for the democratic marketplace of ideas.Footnote ²⁹ Lastly, but in relationship to this truth-seeking mission,Footnote ³⁰ academic freedom allows the sector to fulfil the role of a watchdog of governmental action, holding public authorities accountable.Footnote ³¹ It can be considered a ‘rebel right’Footnote ³² and its role ‘similar to the courts, the media and civil society organisations in that academia too acts as a check on unfettered power through scientific research and critical thinking’.Footnote ³³ This is exactly why Ramanujam and Wijenayake argue that, as both the rule of law and academic freedom have the objective to keep power in check, ‘[e]ach is a sine qua non for the existence of the other’ and they ‘must both be cultivated simultaneously’.Footnote ³⁴ Insofar as institutional academic freedom claims strongly rely on individual ones,Footnote ³⁵ arguments of this nature can be raised in both dimensions.

While potentially attractive, some authors not only question the premise on which this alliance is built but also highlight its perils. Conceptually, none of the three dimensions is said to be exclusive to academia – there are other ways to educate and inform citizens,Footnote ³⁶ or to hold governments accountable.Footnote ³⁷ Therefore, the role of academia should not be overstated when competing interests need to be weighed against each other.Footnote ³⁸ Others argue that the democratic justification does not replace the epistemological one (the pursuit of truth), but rather must depend on and be complementary to it.Footnote ³⁹ Many other objectives are also put forward for European research and education and might have repercussions for the understanding of freedoms granted to them, e.g. the realisation of a competitive EU economy.Footnote ⁴⁰ This is to be expected, as it is not particularly unusual for a freedom to protect various interests.Footnote ⁴¹ However, different justifications of academic freedom might pull in different directions. Fish, an author extensively discussing different ‘versions’ of academic freedom, 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’.Footnote ⁴² In other words, the democratic justification is external to academia and does not capture its main purpose.Footnote ⁴³ This is particularly relevant if one recognises that there are many possible academic freedom threats, also beyond the rule of law context (e.g. from the private sector).Footnote ⁴⁴

This brief overview already demonstrates the complexity of the picture. In some contexts, the democratic justification might support arguments for granting academia wider protection. It can arguably reinforce the institutional claims as both the educational and the watchdog role are supported by the organised (institutional) nature of the activities. On the other hand, the epistemological and democratic justifications may prompt different answers to questions about how accountable universities should be to the public, and to what extent they are entitled to public support (regarding the choice of research topics, funding, or other matters). Moreover, it seems justified to assume that the democratic justification, insofar as it builds on the truth-seeking mission of academia, depends on the epistemological one.Footnote ⁴⁵ Therefore, the protection of academic freedom and democracy or the rule of law, while it should be ‘simultaneous’,Footnote ⁴⁶ might not be synonymous in all contexts or in light of different types of threats. This is an important puzzle not only for theoretical accounts, but potentially also for the EU’s practice, as it will influence our understanding of what is acceptable vis-à-vis Article 13 of the Charter. Both the choice of type(s) of enforcement actions as well as the design of new instruments should therefore be a result of a conscious reflection on the nature of academic freedom in EU law. This article constitutes one step in this direction, focusing on the rule of law context, but also highlights how different visions of academic freedom might feed into such choices.

Academic freedom, democracy, and the rule of law under EU law

Historians of European education note that ‘without the idea of the university as an institution creating and diffusing knowledge and democratic values in a way which is intrinsically international, this policy history of [EU] higher education could not have existed’ (emphasis added).Footnote ⁴⁷ Indeed, similar pronouncements can be found in contemporary policy documents issued by all major EU institutions: the European Commission, the European Parliament, and the Council of the European Union.Footnote ⁴⁸ On the other hand, legal statements to that effect are harder to find and rarely direct. Recital 1 to the Erasmus+ Regulation references the value of EU investments in education for ‘a more democratic Union’. The role of academics in a democratic public discourse underpins their inclusion in the recent EU Directive on strategic lawsuits against public participation (the EU Anti-SLAPP Directive).Footnote ⁴⁹ The critical role of academia ‘in a given political system’ is also recognised by the European Court of Human Rights as constituting one of the rationales for guaranteeing academics’ freedom to disseminate their opinions.Footnote ⁵⁰ The Court of Justice in the Lex CEU case does not discuss academic freedom in the context of democracy as such, but makes a reference to the jurisprudence of the European Court of Human Rights and the Council of Europe Recommendation 1762(2006) that explicitly recognise such links. Therefore, while the democratic justification cannot be fully foreign to EU law either, in light of Article 52(3) of the Charter, the exact degree and dimensions of its relevance have not been scrutinised in more detail, be it in EU legislation or the Court of Justice’s jurisprudence. This can open questions as to whether the existing accounts of the democratic justification of academic freedom, rooted in the national democratic context, remain relevant for the EU. However, while the Union’s constitutional set-up is unique, democracy remains part of the EU’s political philosophy and legal vocabulary. As demonstrated by the statements of EU institutions, the EU also recognises the basic premises of the democratic justification (education of ‘democratic citizens’, verification of truth claims, and stronger accountability structures) as inherently valuable. Therefore, even if the Union context might prompt different answers to some specific questions, this vision of academic freedom can inform the interpretation of Article 13 of the Charter as well.

Against this background, the analysis of the relationship between academic freedom and democracy or the rule of law can arguably be grounded in the foundational provisions of the Treaties, specifically Article 2 TEU that outlines EU values.Footnote ⁵¹ 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 …’. Academic freedom is not explicitly mentioned in this provision. However, it falls within its scope as one of human rights – and specifically also one of the ‘freedoms’ – recognised by the EU Charter itself.Footnote ⁵² Moreover, as I have already argued in more detail elsewhere,Footnote ⁵³ the ‘thick’ understandings of democracy or the rule of law under Article 2 TEU, widely accepted in EU law,Footnote ⁵⁴ justify the inclusion of (certain aspects of) academic freedom also under these value-concepts. In a recent publication on ‘70 years of EU law’, the Legal Service of the European Commission included academic freedom among the Charter provisions which give expression to the EU value of democracy.Footnote ⁵⁵ While ‘not [to] be considered as representative of the European Commission’s official position’,Footnote ⁵⁶ this inclusion reflects the same sentiment that underlines many EU policy documents – but in the specific context of Article 2 TEU. A connection to Article 2 TEU values has been asserted also for Article 14 of the Charter (right to education),Footnote ⁵⁷ with its arguably close (but to be established in detail) relationship to academic freedom. Against this background, academic freedom can be seen as instrumental to the protection of democracy, with violations of the former potentially indicating a (risk of) breach of the latter. Whether this assessment gains broader acceptance beyond the realm of scholarly reflections is to be seen, but it opens a new door for Commission-led actions in this area.

The relationship between academic freedom and the rule of law under EU law is arguably less clear. However, the rule of law is generally considered to assume respect for the other values enshrined in Article 2 TEU.Footnote ⁵⁸ Such a view is accepted also in the broader European legal space. For example, the Venice Commission recognises that there is ‘a great deal of overlap’ between respect for the rule of law and respect for human rights.Footnote ⁵⁹ In the Commission’s view, ‘rule of law connotations’ can be ascribed to rights such as freedom of expression that ‘permits criticism of the government of the day’,Footnote ⁶⁰ a sentiment expressed arguably by the inclusion of media freedom in the EU Rule of Law Reports.Footnote ⁶¹ If one accepts the basic premises of the democratic justification of academic freedom set out above, this right should arguably be seen as having ‘rule of law connotations’ too. At the same time, the European Commission often conceptualises the value of the rule of law more narrowly, in reference to Articles 47 and 48 of the Charter, Article 19(1)(2) TEU, Article 7 TEU, and the Rule of Law Conditionality Regulation.Footnote ⁶² From this narrower perspective, neither primary nor secondary law would provide for a clear legal link between academic freedom and the rule of law. Nevertheless, their protection intersects in at least two dimensions. First, all the rule of law safeguards, such as independent judiciary, necessarily also reinforce academic freedom protection (as is the case with other fundamental rights).Footnote ⁶³ Second, some factual situations amounting to violations of academic freedom might simultaneously violate the rule of law, predominantly in cases involving institutional issues of a systemic nature. This is illustrated by recent changes to the governance of Hungarian higher education institutions, which have been placed under the management of ‘public interest trusts’. The change has prompted doubts about not only institutional autonomy, but also the non-application of public procurement and conflict-of-interest rules, and a lack of transparency in fund management – issues seen as threats to legal certainty and indicative of arbitrary executive power.Footnote ⁶⁴ Hence, notwithstanding the lack of clarity regarding this relationship on a conceptual level, protection of both academic freedom and the rule of law respectively can indeed be mutually reinforcing. It is, therefore, worthwhile exploring how they can be usefully mobilised together in the EU’s action.

The ‘soft law’ tools

Recent years have seen a gradual rise in EU developments that can be classified as academic freedom soft law.Footnote ⁶⁶ However, while they provide evidence of the EU’s commitment and might support the interpretation of academic freedom in EU law, none of such instruments is currently designed to provide for systematic reporting and preventive dialogue activities known from the EU rule of law toolbox.Footnote ⁶⁷ The effectiveness of these ‘soft law’ tools is often seen as limited in cases involving non-cooperative member states, as they do not have an enforcement or corrective nature as such.Footnote ⁶⁸ Nevertheless, dialogue via such tools might produce the desired effects, depending also on their exact profile.Footnote ⁶⁹ Even at the current stage of the EU’s legal development, one can argue that some aspects of academic freedom could be discussed more explicitly and extensively under the existing tools. For example, this could happen under the current key thematic areas of the Rule of Law Report such as media pluralism and freedom (e.g. in reference to how member states implement the Anti-SLAPP Directive, applicable also to academics)Footnote ⁷⁰ or other institutional issues related to checks and balances (e.g. regarding independence of authorities competent in academic matters).Footnote ⁷¹ It has also been tentatively suggested that the Charter could be applicable to national legal acts implementing EU soft law or recommendations issued under such tools,Footnote ⁷² opening new avenues for academic freedom action (e.g. via the infringement proceedings).

Infringement proceedings

Infringement proceedings (Articles 258-260 TFEU) are one of the classical tools of EU law enforcement, widely discussed also in the context of democratic backsliding. Practice has shown that they can be usefully mobilised for academic freedom. The only – but very prominent – example of such an action is the proceedings launched by the Commission against Hungary in 2018, resulting in the so-called Lex CEU judgment. Most of the 244 paragraphs of the judgment discuss trade, only 35 paragraphs discuss fundamental rights,Footnote ⁷³ and none the rule of law or democracy. However, as observed by commentators, ‘there is no doubt that the question of academic freedom and the wider issue of democratic backsliding in Hungary are at the heart of this case’.Footnote ⁷⁴ Finding a violation of Article 13 of the Charter, the Court strengthened the protection of academic freedom in a context that had been previously recognised as a rule of law issue by the Venice Commission.Footnote ⁷⁵ Against this background, there are several observations to be made regarding the mutual amplification of academic freedom and the EU values of democracy and rule of law in infringement proceedings.

First, if enforcement of academic freedom is seen as an indirect enforcement of EU values, then any infringement action in this context can be seen as having a wider aim. Article 13 of the Charter is not characterised by some of the shortcomings identified in reference to the enforcement of EU values via infringement proceedings, e.g. the fact that many structural issues cannot be framed as violations of individual rights.Footnote ⁷⁶ While arguably not all-encompassing in nature, Article 13 clearly covers an institutional dimension of academic freedomFootnote ⁷⁷ and might allow relevant threats of a more systemic nature to be addressed. On the other hand, it is often alleged that the scope of application of the Charter and the lack of explicit legislation on academic freedom obstruct enforcement action on EU level. However, the Lex CEU case demonstrates that Article 13 of the Charter as such can be invoked within the scope of various ‘traditional’ strands of EU law.Footnote ⁷⁸ Although academic freedom has no explicit basis in the Treaties or secondary law provisions, the proceedings can be grounded first and foremost in EU free movement law.Footnote ⁷⁹ Also, public procurement law or competition law can in some circumstances provide an anchor for such action,Footnote ⁸⁰ with the latter’s relevance as a rule of law tool discussed in the literature.Footnote ⁸¹ Some aspects of academic freedom are embedded in the newly adopted EU Anti-SLAPP Directive that protects academics against manifestly unfounded or abusive court proceedings on account of public participation.Footnote ⁸² Further, the literature puts forward arguments – so far untested in practice – for an extended reading of the scope of application of the Charter in general,Footnote ⁸³ or for deriving academic freedom protection directly from provisions on EU citizenship.Footnote ⁸⁴ It is true, however, that the link to EU law is not always easy to establish due to the limited EU competence and the predominantly public character of higher education and research institutions in Europe.Footnote ⁸⁵ For example, changes in the governance structures of higher education institutions, an academic freedom matter that might accompany broader processes of democratic backsliding, do not have an obvious connection to EU law. Further, much of EU law is rooted in economic activity.Footnote ⁸⁶ In such circumstances, assessments of whether the conditions for EU law to apply are met might require a detailed case-by-case analysis of the funding and operational structures of the institution(s).Footnote ⁸⁷ It is outside of the scope of this article to discuss such matters in detail. Nevertheless, higher education might indeed fall within the scope of EU law more frequently than initially alleged,Footnote ⁸⁸ with consequences for the protection of other EU values as well. Their mutual relationships might also, however, become relevant beyond that.

Some authors have suggested that Article 2 could be enforced autonomously, also where it is not ‘directly linked with the competences and policy areas of the Union’.Footnote ⁸⁹ Whether this is the case is currently an open question.Footnote ⁹⁰ However, if accepted, it could clearly – as discussed above – have consequences for academic freedom protection. Further, it has been argued (in reference to the existing jurisprudence on Article 19 TEU) that a combined reading of Article 2 TEU and a specific provision concretising the values leads to a ‘mutual amplification’, as ‘the specific provision of EU law … translates Article 2 TEU into a specific legal obligation, [and] the operationalized Article 2 TEU triggers and determines the scope of application of the specific provision’.Footnote ⁹¹ This has been suggested to be possible for EU Charter rights in some exceptional circumstances as well,Footnote ⁹² and therefore could lead to a circumvention of the consistently alleged limited scope of application of Article 13 of the Charter. Nevertheless, some (non-authoritative) publications from the Commission suggest that ‘for any value that finds its concrete expression solely in fundamental rights granted by the Charter, Article 51(1) thereof must prevail’.Footnote ⁹³ However, were there any other rules of primary or secondary EU law that express the value in question, it could ‘be argued that the specific value establishes a general conditio sine qua non (essential condition) for a Member State’s participation in EU policies in a similar way to that of effective judicial control [Article 19 TEU]’.Footnote ⁹⁴ The Court of Justice confirmed that Article 19(1) TEU is applicable ‘independent of whether or not, in the individual case, the national authorities and hence, in judicial review, the judiciary are implementing EU law’.Footnote ⁹⁵ Perhaps this could be prospectively said also about academic freedom as an essential condition for a member state’s participation in EU research and educational programmes. Such an argument will be applicable if academic freedom gets embedded into the primary or secondary EU law more strongly, but the interplay of the existing EU law provisions (including recitals) on research and higher education and Article 2 TEU values could also be explored further in this context.

Lastly, the effectiveness of infringement proceedings should be assessed in reference to the consequences they bring and other tools available. In the rule of law context, they have often been seen as suboptimal for addressing broader systemic issues due to the focus on individual violations of EU law.Footnote ⁹⁶ As discussed above, this might be less of an issue in academic freedom cases. What could naturally be explored further in this context are ‘systemic’ infringement procedures.Footnote ⁹⁷ A judgment of the Court of Justice finding a violation of EU law obliges a member state to take the necessary measures to rectify the situation, has a clear signalling value, and contributes to the development of EU law. At the same time, the Court can also impose financial penalties in circumstances indicated in Article 260(2) and 260(3). While the EU does not have the power to collect unpaid penalties by force, the Commission can offset penalties against various payments owed by the EU to the member state in question,Footnote ⁹⁸ adding to the coercive power of this EU enforcement action. Such features of infringement proceedings should, therefore, be considered when they are compared with other available tools.

Article 7 TEU

Article 7 TEU contains a three-dimensional enforcement procedure for cases where there is a (risk of) ‘serious and persistent breach’ by a member state of the values referred to in Article 2 TEU specifically. The problems of its application, owing to its political nature, are widely known and have been discussed in various contexts.Footnote ⁹⁹ While the procedures under Article 7(1) TEU have been initiated a few times, Article 7(3) TEU has never been triggered to impose sanctions on a member state due to the high threshold of existence of a serious breach under Article 7(2) TEU. However, academic freedom was raised in the context of application of this provision in 2018 and in 2022 when the European Parliament called the Council to trigger Article 7(1) TEU against Hungary.Footnote ¹⁰⁰ Academic freedom was one of the issues behind the alleged clear risk of a serious breach of the EU founding values (Article 2 TEU), described as ‘the fundamental democratic principle of educational freedom’. Therefore, despite the broadly discussed shortcomings, a brief comment on the relevance of this provision for the scope of action on academic freedom – should the political will ever arise – is warranted.

As Article 7 TEU applies to all values encompassed by Article 2 TEU, its application could clearly extend to academic freedom (see ‘Academic freedom and its place among EU values’ above). The strength of Article 7 TEU in the context of academic freedom is that it is accepted to extend beyond the scope of application of the Charter, or even the principle of conferral, and hence offers a unique opportunity to exert academic freedom pressures outside the traditional confines of the Treaties.Footnote ¹⁰¹ Its relationships with democracy or the rule of law might also have consequences for the substantive conditions for the application of Article 7 TEU, as the criterion of seriousness of the breach depends on its purpose and result. The Commission recognises that the breach might concern groups that are vulnerable due to their status, e.g. minorities or immigrants,Footnote ¹⁰² but one could also argue that this particular attention should be given to groups that are vulnerable due to their role/position versus other EU values such as democracy, e.g. journalists or academics. While it is enough for one of the values to be at risk, a simultaneous breach of several values embedded in Article 2 TEU could be evidence of the seriousness of the breach, and at least some categories of academic freedom threats could be framed in reference to other values as well. Procedurally, Article 7(1) TEU allows the Council to issue recommendations to the member state in question, potentially becoming part of the dialogue on academic freedom in the EU (see the comments on the EU soft law tools above). Different types of sanctions can be imposed under Article 7(3) TEU (economic or non-economic, sector-specific or not) and the choice is left to the discretion of the Council.Footnote ¹⁰³ This allows the Council to select sanctions following a strategic balancing of various interests, including the internal balancing of institutional and individual rights protected by academic freedom.

EU funding and the economic leverage of the EU

Funding plays an important role in the promotion and enforcement of EU values and fundamental rights. What illustrates the increased attention paid to this aspect of EU action is, for example, the most recent annual report on the application of the EU Charter of Fundamental Rights – dedicated (for the first time) directly to this topic.Footnote ¹⁰⁴ The Report also mentions funding contributing to promoting respect for Article 13 of the Charter, such as that distributed under the Erasmus+ and Horizon Europe Regulations or some projects under the European Social Fund+.Footnote ¹⁰⁵ The use of such EU funding must respect the general rules on the implementation of the EU budget. Fundamentally, Article 6(3) of the new Financial RegulationFootnote ¹⁰⁶ provides that ‘Member States and the Commission shall ensure compliance with the Charter of Fundamental Rights of the European Union … and shall respect the Union values enshrined in Article 2 TEU relevant in the implementation of the budget’. To ensure this compliance, the EU has established several conditionality regimes, two of which are particularly interesting in the context of this article: the Common Provisions Regulation, referencing fundamental rights, and the Rule of Law Conditionality Regulation, centred on this EU value specifically.Footnote ¹⁰⁷ The Regulations represent two different types of conditionality and their detailed analyses can be found elsewhere.Footnote ¹⁰⁸ This discussion will, therefore, highlight only some of their respective characteristics that reveal interesting questions about the implications of EU conditionality in the context of academic freedom specifically.

The Common Provisions Regulation applies to specific funds, including the European Social Fund+ mentioned above. It determines, among others, the horizontal requirements applicable to such funds, including compliance with the EU Charter throughout the whole cycle of the implementation of the funds.Footnote ¹⁰⁹ The Commission oversees implementation and reimburses expenditure, unless decided otherwise due to insufficient fulfilment of the conditions (see Article 15 of the Regulation). On the other hand, the objective of the Rule of Law Conditionality Regulation is the protection of the EU budget in the context of rule of law deficiencies, as defined in Article 2(a) of the Regulation. The reach of the Rule of Law Conditionality Regulation is broader, encompassing also the Horizon Europe and Erasmus+ funds (not covered by the Common Provisions Regulation). That the two conditionality regimes might also come together in the academic freedom context has been confirmed by the application of the Regulations to Hungary. The suspension of funds under both Regulations was based on substantively overlapping factual circumstances regarding the governance model of research and higher education institutions: in reference to Article 13 of the Charter explicitly under the Common Provisions RegulationFootnote ¹¹⁰ and in reference to the rule of law due to ‘concerns regarding the non-application of public procurement and conflict of interest rules to “public interest trusts” and the entities managed by them, and the lack of transparency with regard to the management of funds by those trusts’ under the Rule of Law Conditionality Regulation.Footnote ¹¹¹ Several comments can, therefore, be made about the use and interplay of these tools in cases of academic freedom concerns.

First, compliance with Article 13 of the Charter under the Common Provisions Regulation can be incentivised directly, within its scope, supporting other EU values as well.Footnote ¹¹² This is rather straightforward, with the interpretation of the Common Provisions Regulation horizontal enabling conditions closely tied to the understanding of the scope and nature of academic freedom – prospectively drawing from its democratic justification as well. Second, while the relationship between academic freedom and the rule of law is not entirely clear, one can argue that the Rule of Law Conditionality Regulation could be further infused with academic freedom considerations. The Regulation itself recognises that ‘the rule of law shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU’ (Article 2(a)). The Court of Justice stated that:

It remains a somehow open question which values are sufficiently closely linked to the rule of law to influence the interpretation of the Regulation. In reference to the Court’s judgmentFootnote ¹¹⁴ and guidelines from the Commission,Footnote ¹¹⁵ fundamental rights do not seem to constitute part of the Regulation’s definition of the rule of law. However, it is not excluded that the scope of the Regulation could be extended by recognising these close links in some circumstances.

This suggestion might prove controversial from the point of view of legal certainty regarding the scope of situations that qualify as breaches of the rule of law (Article 4(2) of the Regulation). The Court of Justice indeed argued that Article 4(2) is of an exhaustive nature.Footnote ¹¹⁶ However, the argument does not suggest extending the scope of application to some undefined ‘other’ situations with only opaque relevance to the EU budget. Rather, it is directly related to the more defined notions included in Article 4, such as the ‘proper functioning of effective and transparent financial management and accountability system’. For example, the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel and the CoE Recommendation Cm/Rec(2012)7 – both previously referenced in the Lex CEU judgment – emphasise financial accountability of academic institutions, requiring an adequate balance between the degree of self-governance and funding accountability.Footnote ¹¹⁷ The ‘proper functioning … of accountability system’ could therefore be interpreted in light of such provisions. The interpretation of such a standard in light of a fundamental right would not be unusual, given that the same has been said about ‘effective judicial review’ and Article 47 of the Charter.Footnote ¹¹⁸ Additionally, this might help to address some challenges resulting from the limited scope of application of the Charter as the Court of Justice considers all situations covered by the Regulation to ‘relate to the implementation of the budget and thus fall within the scope of EU law’.Footnote ¹¹⁹ Further, the ‘sound financial management of the Union budget’ protected by the Regulation encompasses the principle of effectiveness ‘which concerns the extent to which the objectives pursued are achieved through the activities undertaken’ (Article 33(1)(c) of the Financial Regulation). One can plausibly argue that many EU objectives pursued via relevant funding (research excellence, quality education, etc.) cannot be achieved without a sufficient degree of academic freedom. Until such issues are addressed, the sound financial management of the budget remains affected. The suggested understandings of the breaches of the rule of law and the sound financial management of the EU budget might therefore support the effective application of the Regulation in academic contexts – and complement the measures that can be taken under the Common Provisions Regulation in relation to other funds.

At the same time, the Union’s economic leverage has been the most controversial aspect of its action for the protection of the rule of law, democracy, and fundamental rights. While it carries significant political power, it also implies what some have labelled as ‘trading’ values for EU funds.Footnote ¹²⁰ It might also lead to an unequal distribution of rights among EU citizens, raising questions about its relationship with solidarity – yet another EU value.Footnote ¹²¹ This is no less true in the academic context. Conditionality is inherently tied to funding, and funding is a powerful tool to both empower and disempower academics and academic institutions that remain predominantly state-funded in most (if not all) member states. This has been often observed in the context of democratic struggles.Footnote ¹²² Various soft law and policy documents draw attention to this challenge and/or the need to use public funding as a tool of support, including the CoE Recommendation Cm/Rec(2012)7 previously referenced in the Lex CEU case.Footnote ¹²³ This is relevant to preserving both the democratic and the epistemological missions of academia, as neither can be realised without sufficient funding that respects the autonomy of the sector. In the EU context, the European Parliament’s Recommendation of 29 November 2018 on Defence of academic freedom in the EU’s external actionFootnote ¹²⁴ observed that ‘cuts in public funding … and the subsequent need for alternative sources of income puts academic freedom at risk, particularly when such external funding originates from autocratic regimes abroad’ (Point L), and hence EU funding should aid institutions that support students and scholars at risk (Point T). Whether Article 13 of the Charter can be said to impose positive obligations in this regard remains to be seen, but the answer notwithstanding, the multi-level EU context creates new structures to incentivise member states’ compliance as well as to offer relevant support to holders of academic freedom rights.

Naturally, the significance of EU funding in the academic sector should not be overestimated. The EU is not responsible for structural funding of research or higher education to the extent of allowing it to determine the fate of national academies at large. At the same time, however, EU funding has by now evolved into a ‘parallel system’Footnote ¹²⁵ deeply intertwined with national ones. It facilitates research and educational mobility, might be tied to national evaluation schemes, and carries a significant symbolic value as well. Because of that, refusals or suspensions of funds might have important – even if financially marginal – consequences for the sector, the nature of which will also depend on the type of conditionality and the funds involved. Such decisions might limit the available funding base of those potentially already subjected to (or at risk of) financial coercion from the member state, limiting the available scopes of freedom and autonomy. It might not be a coincidence that in its proposal on Rule of Law Conditionality Regulation,Footnote ¹²⁶ the Commission named Erasmus students and researchers as first two examples of individual beneficiaries of EU funding that should not bear the consequences of funding suspensions. This is also why member states remain responsible for the implementation of the affected EU funds and should cover any obligations from their own budgets (Article 5(2)). However, as recent Hungarian developments demonstrate, this becomes less straightforward when non-cooperative member states are involved, potentially leading to prolonged periods of uncertainty for institutions and individuals alike. Such alternative funding: might not arrive in a timely manner – thereby forcing a factual opt-out from EU programmes; might come with its own constraints; or might be welcomed with suspicion by external partners.Footnote ¹²⁷ These situations echo some of the concerns voiced by the European Parliament Recommendation of 29 November 2018 on Defence of academic freedom in the EU’s external actionFootnote ¹²⁸ and can have both a short- and a long-term chilling effect,Footnote ¹²⁹ potentially beyond the immediate scope and objectives of such decisions.

None of the above is to invalidate the application of EU conditionality mechanisms to the academic sector as such. They are necessary for the protection of the EU budget and, as already recognised, its implementation must respect EU values also in this context.Footnote ¹³⁰ Where academic institutions are compromised, channelling EU funding into them might also both perpetuate detriments to institutional autonomy and be misused for violations of individual academic freedoms. However, when conditionality measures are considered and implemented, the interplay of risks and benefits for academic freedom in reference to both its institutional and individual dimensions is complex and dependent on circumstances. In practice, an incentivising action directed at a Member State (or specific institutions) might have significant consequences for the situation of individuals. The European Court of Auditors observed that application of conditionality to the Erasmus+ exchange is as an example of potential negative effects on EU citizens ‘in the short term’. The Court did not elaborate how to deal with such risks, but recommended the Commission to regularly ‘monitor the impact of the rule-of-law-related measures’.Footnote ¹³¹ Whether all such effects will always be short-term and whether they can be managed efficiently within the existing frameworks remains to be seen. With trade-offs inherent in any such action,Footnote ¹³² there may be good reasons to prioritise actions focusing on systemic or institutional issues, often overlapping with rule of law problems, over other concerns. However, blocking EU funds to protect EU values might in some cases raise fundamental rights questions in itself and, as a complementary consideration, involve issues relating to the EU’s own academia-related policy objectives. Proportionality of such measures will not always be a given and its assessment might require engagement with the various dimensions of academic freedom.Footnote ¹³³ Such issues should therefore be considered in the process of selecting and implementing the available tools, within the broad discretion enjoyed by the Commission.

Preventive measures and ‘soft law’ tools

The existing EU rule of law toolbox can be mobilised for the protection of academic freedom. However, little attention has been given to the explicit embedding of academic freedom within the toolbox. This is perhaps understandable as its revision is unlikely to happen in the nearest future.Footnote ¹³⁵ Nevertheless, the inclusion of academic freedom in the Rule of Law Reports, suggested by some stakeholders, could prove to be an exception.Footnote ¹³⁶ The rationale behind it is rooted in the democratic justification of academic freedom and analogical to that underlying the presence of media pluralism and freedom in the reports: sustaining pluralism and overseeing governmental action. Interestingly, if the reports were extended to cover the EU’s own rule of law (as advocated for),Footnote ¹³⁷ they could also engage with some questions about the consequences of the EU’s own actions regarding academic freedom.Footnote ¹³⁸ The use of this tool should also be explored in coordination with general EU ‘soft law’-making tools available under Article 288 TFEU or, within the educational field specifically, under Article 165(4) TFEU.Footnote ¹³⁹ Work on guiding principles for fundamental academic values is reported to be already ongoing at the EU Commission’s Directorate General for Education and Culture.Footnote ¹⁴⁰ The European Parliament has commissioned various monitoring reports as part of its work on the academic freedom portfolio.Footnote ¹⁴¹ The EU Commission is said to be currently working on a monitoring mechanism for the European Research Area specifically, to assess how EU member states are fulfilling the obligations arising from the Bonn Declaration on Freedom of Scientific Research.Footnote ¹⁴² A new monitoring mechanism is also being developed as part of the Bologna Process in the broader European Higher Education Area.Footnote ¹⁴³ The exact nature and content of these new mechanisms are unknown at the moment, but the rule of law reporting could rely on such sources and draw from the results of various monitoring initiatives. It can be suggested, however, that the EU mandate to discuss academic freedom and issue recommendations under the Rule of Law Reports – in reference to its democratic justification – is broader than that provided by the Treaty provisions on research or education. All soft law and proposals on monitoring should, in any case, be assessed in reference and comparison to each other.

Another related strand of potential EU action concerns the creation of enabling frameworks for academic freedom stakeholders, building on the experiences concerning civil society organisations. The important role played by such organisations in the protection of Article 2 TEU values has been recognised by the Commission.Footnote ¹⁴⁴ However, outside of the consultations in the preparation of the Rule of Law Reports, such organisations have limited pathways to a meaningful participation in the relevant proceedings, e.g. under Article 7 TEU.Footnote ¹⁴⁵ This is equally true – if not more so – for academia. While a lot of attention and financial resources have in recent years been devoted by EU institutions to empowering civil society – in other words ‘supporting the social pillar of the rule of law’Footnote ¹⁴⁶ – initiatives with such explicit aims do not exist in the academic sector. This could be remedied in various ways. For example, the legal and administrative infrastructure that exists within the European Research Area and the European Higher Education Area might provide natural channels for some capacity-building activities via information and technical assistance in case of threats. Further, the Academic Freedom Monitor 2023, commissioned by the European Parliament, advocates for a European Platform for Academic Freedom. This body could ‘support further exchange, awareness, and mutual understanding on what academic freedom implies, and … function as a forum and clearing house for good practices of protecting and securing academic freedom’.Footnote ¹⁴⁷

From this perspective, more attention could also be paid to the Fundamental Rights Agency. While the Agency’s focus is assistance and expertise relating to fundamental rights,Footnote ¹⁴⁸ these clearly embed or relate to the values mentioned in Article 2 TEU. Many scholars have therefore argued for a stronger mandate or engagement of the Agency in the application of the rule of law toolbox.Footnote ¹⁴⁹ Its materials are already used in the preparation of the Rule of Law Reports.Footnote ¹⁵⁰ However, the Agency has so far directly engaged with academic freedom to an extremely limited extent.Footnote ¹⁵¹ Against this background, the Report from the Our Rule of Law Academy suggests that the Fundamental Rights Agency and its Fundamental Rights Platform – a civil society network for exchange and collaboration on fundamental rights issues – could explicitly include academic stakeholders and facilitate coordination between different monitoring and policy initiatives within the Union and beyond.Footnote ¹⁵² The direct embedding of these stakeholders in the activities of the Agency, feeding into its reporting, could also prospectively lessen the administrative burden on both the Commission and the member states in the preparation of the Rule of Law Reports, limiting the number of stakeholders to be consulted separately. The organisational framework of the Agency already allows for thematic consultations, expert meetings, or ad hoc working groupsFootnote ¹⁵³ that could accommodate ‘a European Platform for Academic Freedom’ in a functional sense.

Better integration of academic freedom in the existing research and higher education (funding) instruments

The embedding of academic freedom in the EU flagship instruments on research and education, the Horizon and Erasmus+ Regulations, is another potential avenue to strengthen academic freedom.Footnote ¹⁵⁴ This is due to the key role that these framework programmes play in European research and higher education. As already mentioned, both Regulations make a reference to academic freedom in their recitals, but these have not so far resulted in concrete action in defence of academic freedom. It has, therefore, been argued that academic freedom should be included in the Regulations’ enacting terms more strongly.Footnote ¹⁵⁵ However, it can be noted that the Regulations set out the framework programmes first and foremost – they do not regulate substantive conditions in which institutions and individuals operate. Nevertheless, as they elaborate on eligibility and participation in the (funding) programmes, as well as set out their priorities, they can incentivise academic freedom action. This incentivising power can be conceived in three dimensions, encompassing proposals by various stakeholders. First, the EU could decide to introduce specific funding streams for projects on academic freedom, strengthening awareness and complementing the EU-wide knowledge base.Footnote ¹⁵⁶ Second, it could incentivise strengthening of institutional structures and policies.Footnote ¹⁵⁷ Several different ways to embed academic freedom more strongly within the Horizon activities have recently been explored in a report commissioned by the European Parliament, e.g. an introduction of institutional ‘academic freedom plans’ as an eligibility criterion.Footnote ¹⁵⁸ These suggestions require further fine-tuning,Footnote ¹⁵⁹ but they can become a tool to draw attention to the core relevance of academic freedoms to the respective programmes’ objectives, such as scientific excellence or quality education. They could also support capacity-building, as discussed above. Nevertheless, they will likely fall short where systemic issues resulting from a broader democratic crisis in a member state are involved.

The third pathway to be explored in the context of the programmes is also a specific academic freedom conditionality.Footnote ¹⁶⁰ Such conditionality – be it included in these Regulations or in a separate instrument related to them – could draw from the monitoring and reporting activities discussed above. It could complement the existing EU financial conditionality tools, in particular outside their scope of application. Despite the EU’s constrained competences, such a mechanism could be grounded in financial provisions of the Treaties, similarly to the Rule of Law Conditionality Regulation. This suggestion is supported by the interpretation of the ‘sound financial management of the Union budget’ introduced above and draws from both the democratic and the epistemological justification of academic freedom in the context of the programmes’ objectives. However, conditions in such a mechanism would have to be clearly defined, directly connected, and limited to the actions and funds encompassed by the programmes. Such a mechanism will arguably be difficult to design considering the many different systems across the Union and the highly contextual nature of many academic freedom issues – but might not be impossible. At the same time, while the use of this new type of conditionality could support the protection of the budget and other EU objectives, it would not be free of the challenges discussed in the context of the other funding conditionalities. Therefore, it can be argued that implementation of conditionality measures in this sector – targeted at a member state – should be preceded by a detailed contextual assessment, identifying the exact source and nature of violations, and potentially accompanied by mitigating measures accounting for situations of various academic freedom rights-holders. Such mitigating measures might be seen as an example of a ‘solidarity mechanism to support European researchers’, mentioned in the recent proposal of the European Parliament (see below).Footnote ¹⁶¹ Applicable in principle to all conditionality frameworks, they could also provide a framework to fully synchronise the democratic EU action with the more epistemological – albeit functional to its democratic mission – needs of the academic sector.

New legislative proposals on academic freedom matters

The idea of the EU introducing separate legislation on academic freedom is hardly new. Different substantive provisions,Footnote ¹⁶² drafting methods,Footnote ¹⁶³ or legal basesFootnote ¹⁶⁴ for such an instrument have been discussed. The proposals are always constrained by the EU competence – shared in research and limited in educationFootnote ¹⁶⁵ – with different suggestions put forward for different types of frameworks. The recent European Parliament recommendations suggest grounding a future proposal in Article 182(5) in conjunction with Article 179(1) TFEU (on research).Footnote ¹⁶⁶ As argued elsewhere,Footnote ¹⁶⁷ the proposal will have to carefully navigate between the limited competences but has a potential to significantly strengthen the protection of many aspects of academic freedom in the EU. However, the interdependent nature of research work and other academic activities within the frameworks of most contemporary higher education institutes must lead to some spill-over into some educational matters.Footnote ¹⁶⁸ The recommendations also contain other normative suggestions that may prove controversial, but decisions on which will likely prove crucial for the EU’s vision of academic freedom – and for the future framework’s suitability to contribute to the protection of broader EU values.

Among many other points, the recommendations discuss governmental obligations – including the EU levels of government. Interestingly, the European Parliament emphasises that ‘ensuring freedom of scientific research means that governmental bodies have to actively create all the preconditions needed for the exercise [of] all aspects of the freedom … as well as long term, reliable and stable institutional financing’.Footnote ¹⁶⁹ In these recommendations, scientific freedom is conceived to consist not only of a negative freedom (‘freedom from’) but also has a positive side, requiring ‘enabling framework conditions’ to be put in place.Footnote ¹⁷⁰ These paragraphs clearly hint at positive obligations of not only member states, but also the EU itself. While their nature must necessarily vary between the different levels of government, such normative choices at the EU level should reflect both the essence of freedoms protected by Article 13 of the Charter as well as the nature of the broader EU legal apparatus. The exact content of any future legislative proposal is of course unknown at this moment, but the drafters could draw from the debates surrounding the EU rule of law action – hopefully allowing for the different instruments to complement each other in realisation of the academic freedom objectives. Additionally, some legislation aimed at the protection of academic freedom could also be introduced in reference to freedom of establishment or freedom to provide services,Footnote ¹⁷¹ e.g. drawing from the experiences around the European Media Freedom Act. Due to the prohibition of harmonisation of education (Article 165(4) TFEU), it would need to be more limited in comparison and likely focus on private institutions. However, a stronger protection of the private sector may also contribute to the safeguarding of academic pluralism, given the structural vulnerability of the public sector.

Lastly, as already mentioned, the proposal includes a reference to a ‘solidarity mechanism to support European researchers’.Footnote ¹⁷² The mechanism could be envisaged either in a self-standing way or in combination with other tools at the EU’s disposal, in particular conditionality measures. In the latter case, it could provide a framework for mitigating some of the challenges discussed above. Such a framework should be flexible – accounting for different scopes, objectives, natures, or scales of different funding strands – and leave a significant margin of discretion to EU institutions. Some of the funds have a stronger individual dimension and might potentially be easier to decouple from the compromised institutional structures.Footnote ¹⁷³ Alternatively, in cases where specific institutions remain autonomous despite governmental attacks, some funding could bypass national intermediaries, as advocated for in the context of the rule of law measures and the capacity-building of civil society organisations.Footnote ¹⁷⁴ It has previously been observed that ‘[f]unding organisations can also establish principles and procedures recognising their own responsibility for academic freedom, similarly to do-no-harm approaches in development cooperation’.Footnote ¹⁷⁵ Such approaches generally require the assessment of the intended and unintended impact of funding (or any other) decisions on the existing issues, in order to limit or avoid further negative effects. While so far these suggestions have not been framed with the EU system in mind, the EU clearly creates various opportunities for exerting pressure and providing support that might be relevant in this context. The experiences with existing solidarity frameworks for scholars at risk from third countries can help in understanding and addressing the tensions within the EU,Footnote ¹⁷⁶ as can the broader debates surrounding developments involving Hungary.