Introduction
The rise of right-wing populism across Europe is a well-noted phenomenon. In countries where such populists have seen electoral victories, their commitment to democratic institutions and principles has been tenuous at best. Hungary has, by far, been the most drastic case of democratic backsliding in the European Union (EU), and this has certainly had an impact on higher education. The Fidesz government, led by Prime Minister Viktor Orbán and in power since 2010, has taken two main measures aiming to consolidate control over universities: Firstly, in 2017, the Hungarian government passed a law that placed numerous restrictions on foreign universities operating in the country. The specificity of the regulations quickly made it clear that the new law had been tailored to target one particular institution, namely the Central European University (CEU), earning it the name ‘Lex CEU’ (Ryder Reference Ryder2022). After a lengthy political and legal contestation over the status of the CEU in Hungary, the university was finally forced to relocate to a new campus in Vienna in 2019, transferring many of its educational programmes as well (CEU 2018).
Secondly, in 2021, the Orbán government effectively privatised over 30 public educational and cultural institutions by placing them under the control of public trust foundations (PTF); most of these institutions were (formerly) public universities, though other institutions, such as museums and cultural centres, were also targeted. The PTFs were newfound entities whose existence was engrained in the constitution, each controlled by a board of trustees that was, in most cases, composed of or headed by close allies of Fidesz, giving the party a large degree of control over university affairs.
The tightening grip of Fidesz over higher education institutions (HEI) – including the exile of one institution from the country altogether – has had profound implications for academic freedom in the country. Academic freedom, defined simply as the freedom of academics to produce and disseminate knowledge, is protected in the Charter of Fundamental Rights (CFR) and is frequently linked to other rights that are considered fundamental values of the EU, notably freedom of speech. The EU has at its disposal numerous tools that it may use to enforce respect of its fundamental values, including the withholding of EU funds, social pressure, and punitive measures such as Article 7 of the Treaty on European Union (TEU). However, although the EU has considered, attempted, or activated all such measures, the results have been underwhelming, as the EU has had little success in truly defending academic freedom, at least in the Hungarian case. In an institutional context where European law is supreme and where respect for fundamental values is obligatory, this raises the question: Why is the EU unable to protect academic freedom in its Member States?
In this paper, I analyse obstacles impeding the EU’s response to declining academic freedom in Hungary, reflecting on why the EU has thus far been largely ineffective in its protection of Hungarian HEIs. The first section provides a brief overview of the measures taken by Orbán’s government against universities and the EU’s response to these measures. In the rest of the paper, I adopt a rational choice institutionalist framework and analyse two main obstacles to the EU’s response to declining academic freedom in Hungary. I argue that partisan interests are a potential barrier to the EU’s response and, moreover, that the EU is institutionally ill-equipped to tackle this problem because of a lack of competence in higher education, resulting in an excessively delayed reaction time that may work to the advantage of illiberal political actors. To address these concerns, I argue that the EU should seek to acquire greater competences in higher education. I also argue that the question of partisan interests can be mitigated by institutionalising a clear and operational definition for academic freedom, the absence of which makes it more difficult to enforce as a right while making infractions less evident.
Hungarian academia: Lex CEU and PTFs
Although Fidesz has been in power since 2010, universities in Hungary enjoyed relative stability until 2017, when the Orbán government began taking a series of measures against university autonomy and academic freedom. The measures taken included the expulsion of the CEU and the de facto privatisation of state universities, two episodes which will be reviewed in continuation.
The tale of the CEU has been told and retold in recent literature, though a brief history of the institution will be reviewed here. The CEU is a US-chartered university founded in Budapest in 1991 by Hungarian billionaire and philanthropist George Soros. A Jewish survivor of the Holocaust, Soros aimed to foster the values of open society, summarised pithily as ‘free minds, free politics, and free institutions’, in post-communist Europe during its democratic and free market transition (Ignatieff Reference Ignatieff, Ignatieff and Roch2018: 1 – 2). Rising in prestige, the CEU began attracting students not only from across central and eastern Europe but also from regions all over the world; in 2020, numerous of its departments, including politics, philosophy, and sociology, were ranked among the top 100 in the world (Ryder Reference Ryder2022: 53).
The open society values that the university sought to foster were in clear contradiction with the quest of Fidesz to consolidate power beyond the bounds of democratic contest. Consequently, as part of a larger smear campaign against George Soros, Fidesz took aim at the CEU in April 2017 with the introduction of legislation targeting foreign universities. Lex CEU introduced new requirements and regulations, notably that foreign universities could only operate in Hungary as the result of an international agreement between their home country and the Hungarian government. Further complicating matters, the Fidesz government insisted that an agreement with the US federal government would be necessary, whereas higher education in the USA is generally organised at the state level (Ryder Reference Ryder2022: 53 – 54).
Moreover, Lex CEU mandated that foreign universities maintain educational activities in their home country while also nixing exemptions for work permits for professors from abroad, in addition to other measures. Foreign universities also could not share the same legal name as universities already existing in Hungary; this measure was especially pointed, as the CEU exists in Hungary as an entity using the Hungarian translation of its English-language name under which it is registered in the USA. The law quickly earned the name ‘Lex CEU’ because the CEU was clearly the only institution in the country affected by the law’s content (Enyedi Reference Enyedi2018: 1067).
The deadline for the CEU to comply with the onslaught of new regulations was set on 1 January 2018, later pushed back to 1 January 2019. The Hungarian government responded to a series of diplomatic efforts by American and European governments by stalling and perpetuating the CEU’s legal limbo as the university awaited to see whether or when its license to operate in the country would be renewed (Enyedi Reference Enyedi2018: 1068). Following a year and a half of efforts to elicit the cooperation of the Hungarian government, the CEU finally announced in 2019 that it would relocate the vast majority of its operations to Vienna (Walker Reference Walker2019). In October 2020, the European Court of Justice (ECJ) ruled that Lex CEU violated EU law. Although this decision was welcomed by CEU officials, it came nearly a year after the CEU had already been forced to exit Hungary. The university continues to offer two courses in Budapest, but all other operations are now located in Vienna (Thorpe Reference Thorpe2020).
The second salvo against academia came in 2021, when the Orbán government began to transfer control of public universities to newly created entities known as PTFs.Footnote 1 Although the universities remain nominally public, the PTFs that manage them are privately owned entities managed by administrative councils that are, in most cases, headed by close allies and key figures of Fidesz, including numerous sitting ministers such as Judit Varga, then-Minister of Justice, and Péter Szijjártó, Minister of Foreign Affairs.
PTFs maintain a profound level of control over university activities and affairs, including budgetary decisions, human resources policy, institutional organisation, and executive officer appointments, and exercise control over the powers of other decision-making bodies such as university senates (Kováts, Derényi, Keczer et al. Reference Kováts, Derényi, Keczer and Rónay2024: 368). Despite such power, PTFs are subject to little to no transparency or accountability, largely owing to a lack of regulations surrounding board member eligibility, term limits, and conflicts of interest (Munkacsoport Reference Munkacsoport2023).
Moreover, the existence of PTFs and their ownership of public assets is engrained in the Hungarian constitution; this assures that, even if a rival party were to come to power, it would require a qualified majority of two-thirds in the Országgyűlés, the National Assembly of Hungary, to undo Fidesz’s control of public universities. In all, the creation of PTFs is understood as a move to transfer billions of euros’ worth of public assets to private ownership (Kádár Reference Kádár2021).
In December 2022, the European Council announced that it would cut off 34 Hungarian cultural institutions, including 21 universities, from Erasmus+ and Horizon Europe funds. The measure was taken because of a lack of transparency over the use of EU funds by institutions controlled by PTFs, which were perceived as being too closely aligned to the Fidesz government (Brent Reference Brent2023a). In response, in February 2023, the Hungarian government announced that numerous government officials, including seven sitting ministers, would step down from PTF boards. This, however, is considered insufficient by the EU, and Erasmus+ and Horizon Europe funds remain frozen (Brent Reference Brent2023b).
Most Hungarian institutions had agreements running until mid-2024, and so several institutions contested the freezing of EU funds. In May 2023, six Hungarian universities appealed the decision to the ECJ. The universities argue that the measures taken against them were disproportionate and lacked solid factual basis. Although the appeals were filed by the universities themselves, it is evident that their actions are driven by the prime minister’s political interests (Brent Reference Brent2023c). In January 2024, a small group of Members of European Parliament (MEPs) attempted to convince the European Commission to reinstitute Hungarian access to student mobility and research funds, though this was rejected by a large majority of MEPs (Brent Reference Brent2024). In December 2024, the Orbán government notified the European Commission that it had implemented higher education reforms to address the conflicts of interest, though the European Commission responded that these reforms were inadequate and continued to block the release of funds (Bortoletto Reference Bortoletto2024).
Theory: Rational choice institutionalism
Rational choice institutionalism (RCI) posits that actors behave instrumentally to maximise attainment of their preferences. As such, political outcomes are a result of the interaction between three factors: interests, information, and institutions (Schneider and Ershova Reference Schneider and Ershova2018). In EU studies, these variables have been studied to analyse legislative dynamics and conflicts (Tsebelis and Garrett Reference Tsebelis and Garrett2000; Bailer, Mattila, and Schneider Reference Bailer, Mattila and Schneider2015), legislative influence (Kreppel Reference Kreppel2002), oversight institutions (Winzen Reference Winzen2012), and the codecision procedure (Costello and Thomson Reference Costello and Thomson2013). In this paper, I focus on the legal and institutional capacity of the European Commission and of the ECJ in protecting academic freedom while considering barriers to their scopes of action, linking the literature on RCI to the literature on EU value compliance.
EU scholars have generally argued that material leverage coupled with favourable conditions are necessary to enforce compliance with EU treaties on the part of Member States (Sedelmeier Reference Sedelmeier2014; Iusmen Reference Iusmen2015; Kelemen Reference Kelemen2017). Material sanctions typically include withholding EU funds from recipient Member States, as well as infringement mechanisms outlined in the EU treaties, namely Articles 258 – 260 of the Treaty on the Functioning of the European Union (TFEU) and Article 7 of the TEU, the latter often labelled the EU’s ‘nuclear option’ (Kochenov and Pech Reference Kochenov and Pech2016). Sedelmeier (Reference Sedelmeier2014) analyses the Romanian constitutional crisis of 2012, finding that the EU was able to mobilise a combination of social pressure and material leverage to elicit cooperation owing to favourable circumstances. Similarly, Iusmen (Reference Iusmen2015) finds that domestic factors, including political miscalculations by Romanian politicians, facilitated the EU’s mobilisation of material leverage, which was ultimately effective in eliciting cooperation. Partisan interests and calculations at the national level have been highlighted as barriers to EU action (Merlingen, Mudde, and Sedelmeier Reference Merlingen, Mudde and Sedelmeier2001; Iusmen Reference Iusmen2015; Sedelmeier Reference Sedelmeier2016). Merlingen, Mudde, and Sedelmeier (Reference Merlingen, Mudde and Sedelmeier2001) highlight the role of norms in forcing Member State governments to act in defence of EU fundamental values, particularly when partisan interests disincentivise them from doing so.
Given the salience of legal remedies in the EU, the RCI approach is often applied to cases which require fairly thorough analysis of legal frameworks, concepts, and mechanisms. As such, many studies of EU democratic backsliding adopt a somewhat interdisciplinary nature (Sadurski Reference Sadurski2010; Gyulavári and Hős Reference Gyulavári and Hős2013; Blauberger and Kelemen Reference Blauberger and Kelemen2017; Halmai Reference Halmai, Davies and Nicola2017; Kelemen Reference Kelemen2017). Similarly, I construe the question of Hungarian academic freedom as a political and legal conflict in which political interests are pursued primarily through legalistic institutional means, that is, the application of treaty articles and statutes, including fundamental values, by the EU to its Member States. On one hand, the EU has an interest in upholding its fundamental values to preserve its relevance and its legitimacy. On the other hand, illiberal political actors at the national level may seek to balance their relationship with the EU with their drive to consolidate power at home, a dimension of which involves tightening control over academia. European-level partisan actors have also found themselves in a delicate position requiring such balancing of interests (Brzozowski and Makszimov Reference Brzozowski and Makszimov2021).
To enforce compliance with its values, the EU relies on the rule of law and the EU treaties, which afford it the legal means and legitimacy to act against noncompliant Member States. Below, I argue that a lack of competence in higher education and an insufficient definition of academic freedom hold the EU back from reacting effectively. As a result, I argue that the EU would be legally and institutionally better equipped to protect HEIs with enhanced competences in higher education as well as with a clearer and enhanced definition of academic freedom in its treaties.
Analysis: EU competences
Article 13 of the CFR states that academic freedom is a fundamental right and thus must be respected. However, CFR provisions may only be applied to Member States when the Member States are implementing EU law, as per Article 51 of the CFR. This means that the provision on academic freedom may only be invoked in a policy area that falls within the competences of the EU. This complicates the application of the CFR, as EU competences in education are largely limited to a supporting role.
Education, with no explicit distinction between primary, secondary, and postsecondary levels, is classified as a supporting competence as per Article 6 of the TFEU. This article allows the EU to ‘carry out actions that support, coordinate or supplement the actions of the Member States’, though competence in education is otherwise reserved for the Member States. Article 165 of the TFEU outlines the EU’s role in education as that of fostering cooperation, mobility, and exchanges, though such goals are to be pursued while ‘fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems’. As such, EU action is limited to incentive measures, while any harmonisation of Member State laws or regulations is prohibited.
Moreover, Article 5(3) of the TEU further confirms the lack of EU competence in education. This article outlines the principle of subsidiarity, stating that the Member States retain any competences not conferred to the EU by the treaties; in other words, the EU is prohibited from acting in areas beyond the competences conferred to it by the treaties. With its competence in higher education restricted, the EU may only apply and enforce Article 13 of the CFR in conjunction with another provision when another violation is committed in an area of EU competence.
The EU’s relative lack of authority in educational matters ultimately structures its response to declining academic freedom, forcing it to operate with a diminished scope of action. While challenging, this task is not impossible. Article 179 of the TFEU gives the EU the mandate of encouraging cooperation and common undertakings between research centres and universities in different Member States in the field of scientific and technological development. Thus, if measures taken by illiberal governments affect the research activities of universities, then Article 13 may theoretically be invoked in conjunction with Article 179. However, such infractions would likely have to occur within the scope of a research initiative fostered by the EU.
In 2020, the ECJ in part succeeded in finding such a link that would allow the enforcement of the Charter. In April 2017, shortly after the introduction of Lex CEU, the European Commission sent a letter to Hungary outlining its concerns regarding the impact of Lex CEU on academic freedom. In July of that year, the European Commission referred Hungary to the ECJ, as per Article 258 of the TFEU. The argument of the European Commission was that Lex CEU infringed the freedom of establishment of nationals between Member States, as stated in Article 49 of the TFEU, as well as the freedom to provide services within the EU as per Article 56 of the TFEU.
In October 2020, the ECJ delivered its judgment, stating that certain provisions of Lex CEU violated Hungary’s obligations regarding national treatment as per the General Agreement on Trade in Services (GATS). The provisions concerned were those requiring foreign universities to be the product of an international agreement between Hungary and the institution’s country of origin as well as to conduct educational activities in their country of origin. The ECJ found that these two provisions put foreign educational institutions at a disadvantage vis-à-vis Hungarian institutions, thus violating the principle of national treatment to which Hungary, and the EU, are held in the GATS.
The ECJ ruling against Lex CEU was hailed by the CEU and by civil society actors as a success for academic freedom. Indeed, the ruling showcased clever legal navigation on the part of the ECJ; the ECJ found itself in a delicate position when it attempted to claim authority to force compliance with an international trade agreement without giving the treaty direct effect in its internal legal sphere, which would disadvantage the EU vis-à-vis its trading partners (Vranes Reference Vranes2021: 702). Firstly, the ECJ argued that, because any international agreement signed by the EU becomes an integral part of EU law, then an EU Member State, in observing its treaty obligations, would be implementing EU law. Moreover, it found that, because commercial policy is an exclusive competence of the EU, the EU can be held liable not only for its own infractions of treaty terms but also for those of its Member States. Thus, the European Commission had authority to force compliance among Member States (Nagy Reference Nagy2021). Therefore, by violating its treaty obligations under the GATS, Hungary is violating EU law and exposing the EU to sanction mechanisms of the GATS, giving the European Commission authority to impose compliance with GATS provisions. Having asserted its competence, the ECJ then invoked Articles 10 and 13 of the CFR, finding that, in implementing EU law, Hungary had infringed freedom of thought and academic freedom.
This novel interpretation allowed the EU to impose compliance with fundamental values when complying with international treaty agreements, considered to be part of EU law. The ECJ deliberately delivered this interpretation without according the GATS direct effect and while circumventing its lack of competence in higher education, signalling a novel approach to enforcing academic freedom (Nagy Reference Nagy2020; Vranes Reference Vranes2021).
Despite this crafty legal interpretation, the ruling fell short of truly protecting academic freedom in Hungary. Firstly, while the mobilisation of the GATS was cleverly construed by the ECJ and linked to the CFR, it is limited in its scope. International treaties and trade agreements may likely only be mobilised to protect foreign HEIs. Hungarian universities, however, generally remain beyond the jurisdiction of international agreements. As such, the EU has yet to find a remedy to release over 20 Hungarian universities from the grips of PTFs.
Moreover, despite the hopeful ECJ ruling, foreign universities remain vulnerable as well. Lex CEU is a highly specific and targeted piece of legislation, and while the GATS was successfully invoked to strike it down, Hungarian legislators may find ways to produce targeted legislation that tiptoes around Hungary’s obligations under international and European agreements. While obligations at the European and international level may slow Orbán’s government down, Hungarian legislators may well find innovative ways to target HEIs, Hungarian or foreign, that circumvent such obligations, forcing European actors once again to innovate solutions.
Finally, the ruling came far too late to realise any sort of success that was not purely symbolic. At a cost of approximately €200m, the CEU had already transferred nearly all its operations to Vienna, announcing that it had no intention to return to Budapest despite the ECJ ruling (Zubașcu Reference Zubașcu2020). Thus, while the ECJ ruling was a symbolic success, it came too late to concretely protect the CEU, signalling an Orbán victory. Through this episode, the EU failed to demonstrate that it could respond quickly and effectively to declining academic freedom (Ryder Reference Ryder2022).
Such late judgments not only fail to stop illiberal measures against academic institutions but may also retroactively legitimise the government that realised such measures in the first place. In 2012, for instance, the Orbán government lowered the compulsory retirement age for judges in Hungary from 70 to 62 years with minimal notice, forcing nearly 10% of judges across the country into premature retirement. This allowed the Hungarian government to replace these judges, most of whom were experienced judges in leading administrative positions, with judges that have close ties to Fidesz. In response, the ECJ ruled that this measure constituted age discrimination, prompting the Orbán government to provide financial compensation to the dismissed judges and to offer reinstatement to judges whose positions had not yet been filled. However, because most positions had already been filled, Fidesz succeeded in keeping most of its judges in power. The result of this ostensibly corrective action was that the Hungarian government succeeded in replacing nearly 300 judges across the country, severely undermining judicial independence and consolidating its power, all while appearing to respect and comply with the ECJ ruling (Gyulavári and Hős Reference Gyulavári and Hős2013; Halmai Reference Halmai, Davies and Nicola2017).
Similarly, the Hungarian legislature presented an amendment to Lex CEU to ostensibly comply with the ECJ order, though there is little hope that this amendment will bring about any meaningful change. In fact, with the CEU already expelled and unwilling to return, Orbán’s government could, in theory, repeal Lex CEU entirely, thus appearing to comply with the ECJ ruling, all while having made sufficient use of institutional means to realise its interest in consolidating its control over higher education.
This case illustrates how the EU’s lack of competence in higher education structured its response by forcing it to look for alternative and indirect ways to prosecute the Hungarian government. Consequently, its response was too delayed to have any meaningful effect and did not halt the intentions of the Hungarian government in any meaningful way. By pushing for greater competences in higher education, the EU can ensure that, in future cases, it will be better prepared and quicker to react to such hostile measures taken against HEIs.
Analysis: Defining academic freedom
The EU’s scope of action is further diminished by the lack of a clear definition of academic freedom. How does the EU know when academic freedom is at risk in one of its Member States? The only mention of academic freedom in the EU treaties is in Article 13 of the CFR, which states that, ‘The arts and scientific research shall be free of constraint. Academic freedom shall be respected’. The phrasing ends abruptly and omits any definition.
A clear definition is necessary, firstly, because it would facilitate the enforcement of academic freedom by bringing it closer to having vertical direct effect – the principle allowing individuals to evoke their rights before a national or European court vis-à-vis a Member State. Following the 1963 case Van Gend en Loos (Case 26/62), the ECJ ruled that EU primary law may have direct effect, though it must bestow a negative obligation upon a Member State in a clear, precise, and unconditional manner.
The wording of Article 13, while producing a negative obligation, is not sufficiently clear to be conducive to direct effect; the EU must thus institutionalise a clearer and more precise definition that allows for operationalisation of this right. While the CFR would still be unable to protect academic freedom directly, producing and institutionalising a more precise definition of academic freedom would nevertheless make it easier to enforce in cases where the EU can establish its authority, as it did with the GATS-related ruling.
Moreover, a clearer definition of academic freedom would be conducive to involving national-level political actors in the protection of HEIs. Political actors in Member States may look for opportunities to avoid the burden of taking action to defend European values (Blauberger and Kelemen Reference Blauberger and Kelemen2017). Foggy and vague definitions of academic freedom may facilitate this, providing cover for reluctant political leaders to avoid taking action; this is particularly problematic given that the EU clearly expects cooperation from Member States in protecting academic freedom (Parliamentary Assembly [PA] 2020). By institutionalising a clear definition, the EU would render breaches of academic freedom more visible and harder to turn a blind eye to. Consequently, liberal actors would be more empowered to defend academic freedom, while bystanders would also feel greater pressure to act.
Finally, an operationalised definition would facilitate monitoring of academic freedom and provide clearer and more solid benchmarks to measure compliance. With clearer benchmarks, EU actors will more readily monitor infractions or threats to academic freedom when they occur. This is particularly important in the Hungarian case, as the Orbán government has demonstrated a capacity for ‘illiberal learning’; while the EU has attempted to leverage funding to obtain liberal reforms, the Orbán government has devised new tactics to undermine these mechanisms, notably by presenting Potemkin solutions to EU concerns and by exchanging cooperation on issues that require unanimity for EU funds (Scheppele and Morijn Reference Scheppele and Morijn2024). With a clearer definition of academic freedom that provides solid benchmarks for compliance, the EU can better see through superficial solutions and address the problem of academic freedom at the root.
In the USA, for example, the practice of academic freedom is generally based on the Association of American University Professors’s 1940 Statement of Principles on Academic Freedom and Tenure (Assocation of American University Professors 1940) and is buttressed by precedents set in several key Supreme Court of the US (SCOTUS) cases. In 1957, SCOTUS defended for the first time the thoughts and actions of academics from political interferenceFootnote 2 and, in 1967, linked academic freedom to the First Amendment of the Constitution,Footnote 3 considering it protected as a ‘special interest’ of freedom of speech. In 1978 and in 2003, SCOTUS affirmed university autonomy in matters concerning admission decisionsFootnote 4 and in 2006 affirmed the state’s capacity to regulate the speech of government employees while refraining from applying this decision to academics.Footnote 5 As precedents, these rulings are binding, violating them would be difficult to ignore, and they are quite specific in their content. Codified into US jurisprudence, these rulings afford clear and firm protections to academics. Notwithstanding the common law setting of the USA, European statutes and treaty articles could codify certain practices that have been established by case law across the pond.
While a US/EU comparison may seem out of place, the two contexts share more than meets the eye: In the USA, education is also largely a state issue, with the 10th Amendment of the US Constitution being essentially equivalent to Article 5(3) of the TEU – which outlines the principle of subsidiarity – in protecting state competences from federal overreach. While the difficulty of violating academic freedom in the USA is largely owing to the binding authority of federal courts over the states, the protection of academic freedom is greatly facilitated by this conceptual clarity established through precedents, the absence of which made academics frequent targets for their political and religious beliefs prior to the 1950s (Hertzog Reference Hertzog2017: 181).
A European definition of academic freedom that would serve as an institutional tool would need to explicitly acknowledge the various dimensions of academic freedom. Moreover, I argue that the link between academic freedom and faculty tenure is vital and that the institutionalisation of the latter is a critical step towards protecting academic freedom. In its judgment in the case C-66/18, the ECJ states that, ‘academic freedom did not only have an individual dimension in so far as it is associated with freedom of expression and, specifically in the field of research, the freedoms of communication, of research and of dissemination of results thus obtained, but also an institutional and organisational dimension reflected in the autonomy of those institutions’ (Court of Justice of the European Union 2020), effectively recognising both dimensions of academic freedom as pertaining to the faculty within the university and to the university as an institution. The language used in the judgment of the ECJ is essentially paraphrased from Recommendation (Rec.) 1762 of the PA of the Council of Europe, adopted in 2006. In its recommendation, entitled Academic Freedom and University Autonomy (2006), the PA associates academic freedom to ‘the freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction’.
While Rec. 1762 somewhat elaborates institutional autonomy, it alludes to general values; it is defined as an ‘independent commitment to the traditional and still essential cultural and social mission of the university’ and is related to ‘intellectually beneficial policy, good governance and efficient management’. This language is a good start, notably by acknowledging that academic freedom has more than one dimension (individual and institutional) and must be protected at various steps (freedom to produce and to disseminate knowledge).
In February 2025, the European University Association (EUA) published a report on academic freedom in which it provided a far more thorough definition and outlined practices and guidelines that would facilitate a culture of academic freedom (European University Association 2025). While this report is a key step in deepening the European understanding of academic freedom, the concept of tenure is notably absent. European definitions tend to link academic freedom to institutional autonomy – which is, of course, vital – whereas American definitions emphasise the link between academic freedom and tenure. European definitions are right to highlight the importance of institutional autonomy, though EU actors would be in a far stronger position to ensure freedoms to academics if the principle of tenure were codified into EU law.
By providing firm employment security, the principle of tenure reinforces academic freedom by shielding faculty from external or internal reprisal, including from the institution itself. This protection is critical in cases such as Hungary, where the government has consolidated control over university administrations. In such cases, it becomes unclear where the will of the government ends and that of the university begins. For instance, when numerous Hungarian universities challenged the blocking of European student mobility and research funds in the ECJ in 2023, the role of the Hungarian government as the main force driving the appeal could not be ignored (Brent Reference Brent2023b). Tenure, however, offers protection to faculty even in cases where government breaches universities’ autonomy.
Article 13 of the CFR is overly vague, omitting any mention of either institutional autonomy or tenure. While the ECJ acknowledges both dimensions of academic freedom in its ruling, this could be better enforced if explicitly associated with academic freedom in the treaties. Moreover, a complete definition of academic freedom that underscores the importance of institutional autonomy and faculty tenure would empower and place more tools at the hands of liberal actors defending academic freedom at the European and national levels.
Results and discussion
The decline of academic freedom in EU Member States signals the decline of respect for EU fundamental values. As such, the EU has a vested interest in upholding the values outlined in the European treaties. In regard to academic freedom, the EU’s response is held back by several institutional factors, namely the lack of competence in higher education and the lack of a strong definition of academic freedom. It is critical to address these shortcomings, as the withdrawal of the CEU from Hungary was the first time that a university in Europe was made to leave a country for political reasons since the end of the Cold War and public universities around the country have become extensions of a party that has consolidated its control over all levers of state power.
The EU’s response is hindered, firstly, by its lack of competence in higher education. Consequently, the EU might explore avenues to expand or renegotiate its authority with its Member States. If it can acquire any increased competence in higher education, then it will have far more reach to defend against repression of academia. This limitation has pushed EU actors to look for alternative strategies to protect academic freedom, such as the ECJ ruling of October 2020, which gives a glimmer of hope for European academics. While the ECJ ultimately failed to protect the CEU in time, it demonstrated that it is not totally unable to find areas of competence to which it can link academic freedom. If it is unrealistic to expect Member States to cede competence in (higher) education to the EU, then the EU may continue to search for alternative ways to reconcile its commitment to academic freedom with its lack of competence in higher education. This is critical to reducing reaction delays so that, unlike in the case of the CEU, ECJ rulings can have a tangible effect. The ECJ will thus need to have its legal tools ready so that future infractions may be dealt with swiftly before having virtually irreversible effects.
Secondly, academic freedom as a fundamental value lacks sufficient definition in EU law. This definition would need to account for the various dimensions of academic freedom while codifying its link to institutional autonomy and faculty tenure. The EUA report is a strong starting point; however, in deepening its definition of academic freedom, the EU can draw on existing definitions elsewhere. The USA generally demonstrates a strong culture of academic freedom with faculty tenure as a cornerstone of its doctrine. By adopting and strengthening tenure procedures as well, the EU can provide an extra line of defence for professors when university autonomy is undermined, as in the Hungarian case. Finally, a European framework for academic freedom will in any case have little effect if not codified into EU law. The EU’s definition of academic freedom should, thus, be deepened and codified into the treaties. This will make academic freedom a bolder issue by making infractions more visible and thus harder to ignore, putting pressure on Member States and partisan actors, European and national, to further commit to the protection of this value. This participation is crucial, as the EU should not work alone in protecting academic freedom; Member States and partisan actors also have an obligation to participate in the protection of fundamental values and should not be allowed to sit out as bystanders.
The barriers discussed above frustrate EU efforts to protect academic freedom. As such, the EU has been forced to find innovative ways to protect free scholarship in its Member States that circumvent its lack of competence in higher education and that overcome the absence of a strong definition of academic freedom in EU law. If the EU succeeds in overcoming these challenges and mobilises sufficient Member State support, then it may succeed in assuring that European universities are sufficiently shielded and supported to engage freely in knowledge production and dissemination.
Competing interests
The author states that there is no conflict of interest.
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