Throughout this academic year, student protests and encampments on campuses over the war in Gaza took place in the United States and then spread to various European countries, including Germany. University authorities sought assistance from the police to disperse some student protests, and national governments questioned the constitutional loyalty of scholars who raised doubts about the dissolution of those protests. Some professors were even accused of expressing sympathy and showing support for Hamas following its October 7 attacks in Israel, as exemplified in the case of Prof Kate Sang in England and, in several instances, in Germany. The events have prompted a scholarly discussion on the limits of free speech on university campuses and the boundaries of academic freedom.

EU legal standards – and cases of violation

This piece seeks to explore whether there are EU legal standards regarding academic freedom. To begin with, Article 13 of the EU Charter of Fundamental Rights codified the freedom of scientific research and academic freedom for the first time within the European context. This article stipulates that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected.” How are these standards applied by the EU institutions? Are there any EU legal guidelines on academic freedom that institutions can follow in resolving the cases mentioned above?

The Court of Justice of the European Union (the Luxembourg Court) gave effect to Article 13 in 2020 with its judgment in Commission v Hungary. The case involved a Hungarian private university, the Central European University (CEU). In 2017, an amendment to the Hungarian law on higher education was adopted to require, among others, a prior international agreement between the foreign university’s home country and the host state and proof that the foreign university provided education in its home country. The public called the amendment ‘Lex CEU’ because the decisive criteria primarily affected the CEU.

The European Commission filed a lawsuit against the Hungarian government at the Luxembourg Court, arguing that the amendment violated Article 13 because it affected the ability of certain universities to conduct research freely in Hungary. The Hungarian government, by contrast, insisted that though the CEU was required to meet certain legal obligations, it would not affect the academic freedom of the institution or its staff.

What did the Luxembourg Court say? First, it took a closer look at the relevant case law on academic freedom according to the European Court of Human Rights (the Strasbourg Court). It did so because Article 52(3) of the just mentioned EU Charter requires that the EU Charter rights, which correspond to the rights of the European Convention on Human Rights, must be given the same meaning or, at the very least, the same scope as those laid down by the Strasbourg Court.

Free speech in the academic context

The Strasbourg Court treats academic freedom as a special concern of the freedom of expression and calls it the right to free speech in the academic context. This right includes not just the academic’s freedom of intramural expression—the freedom to criticise the institutional setting in which the academic works, but also extramural expression—the freedom to speak outside of academia. According to Strasbourg case law, academics can freely express even controversial or unpopular ideas on matters of public concern within their area of expertise without fear of repercussion. If their opinion is not a summary or a conclusion for the public sphere of sustained or concluded research, it may still be an exercise of free speech but not academic freedom. This judicial understanding may be relevant when scholars share their opinions on the Gaza war or student protests at universities.

The Luxembourg Court ‘incorporated’ this interpretation of free speech in the academic context into EU law. Yet it took a step further by interpreting Article 13 more comprehensively, recognising that a robust democracy with vibrant academic freedom presupposes both the individual rights of the researcher and the autonomy of the academic institution against unjust interference by both state and non-state actors.

Freedom of research and institutional autonomy as key 

In its judgment, the Luxembourg Court condemned Hungary for violating Article 13. Yet the judgment came late for the CEU. They could not return to Hungary. Nevertheless, the judgment is crucial as the Luxembourg Court not only acknowledged the individual’s freedom of research by incorporating the Strasbourg standards but also recognised institutional autonomy as a key component of academic freedom.

Recently, other EU institutions have joined the Luxembourg Court in promoting academic freedom. The European Parliament is particularly active in this field. In a 2023 motion for resolution, its Committee on Industry, Research and Energy recommended ensuring the freedom of scientific research as a right of individual researchers and the institutional autonomy of scientific research organisations. The motion proposed Europe-wide protection for free academic inquiry, outlining a broad understanding of academic freedom.

As a next step, this January, the European Parliament approved a resolution containing recommendations to the European Commission to promote the freedom of scientific research in the EU and asked the Commission to put forward a legally binding act across the EU. The primary aims of the act would be to provide a more detailed definition of what academic freedom entails and to make it easier for EU institutions to take action against Member States should they violate academic freedom. Advancing this project further and establishing robust legal protection within the EU will be the upcoming European Commission’s responsibility.

Balancing act

As it stands now, EU legal protection includes a significant precedent set by the Luxembourg Court regarding the individual rights of academics and university autonomy. By integrating the Strasbourg case law into EU law, the Luxembourg Court acknowledged the legal standards set by Strasbourg regarding the extramural speech of academics. For the critical academics mentioned at the beginning of this blog post, these standards could prove to be crucial.

Balancing free speech on university campuses with ensuring that every student can pursue education without facing discrimination by their fellow students or academics can be more challenging. For instance, there are no clear legal precedents in Europe regarding the right university management approach when dealing with an unlawful or seemingly unlawful student protest on university premises. This might be a reason why universities often struggle to make the right decisions. What further complicates the matter is that in such situations, universities should decide about their own affairs. Hence, resolving these disputes before impartial national and/or supranational courts would be advantageous. If this were to happen, it would mean that legal standards would be introduced to ensure that students can participate in lawful protests without fear and that academics can openly express their views on the protest and even the political event that triggered the protests without any fear.

 

Kriszta Kovács PhD, habil. is a WZB senior research fellow in the SCRIPTS project ‘Science Friction: Patterns, Causes and Effects of Academic Freedom Contestations’ and an associate professor at ELTE University Faculty of Social Sciences in Budapest. The outcome of the Science Friction SCRIPTS project will be published in July 2024 as a Global Constitutionalism special issue titled 'Academic Freedom: Global Variations in Norm Conceptualization, Diffusion, and Contestation'.