The European Union of Private Higher Education (EUPHE) welcomes the opinion of the Advocate General at the European Court of Justice (ECJ) in the infringement proceedings against Hungary regarding discrimination against the private Central European University (“Soros University”).
If the ECJ follows the request, this will have far-reaching consequences beyond Hungary for private universities also in the other EU member-states.
The Advocate General’s comments state that the EU member-states have to observe the following rights of private universities in their university laws and that the EU Commission is obliged to ensure that these rights are respected:
1. The establishment and operation of private universities as an expression of the right of education in accordance with Article 14 (3) of the Charter of Fundamental Rights of the European Union must be guaranteed in all EU member states. Article 14 (3) also guarantees the existence of private universities in addition to the public universities and the variety and pluralism in higher education.
2. Entrepreneurial freedom to set up and operate private universities is to be guaranteed in all EU member states in accordance with Article 16 of the EU Charter. This means that also the “entrepreneurial side and the commercial aspects of the establishment and operation of the university are protected” and that the member states must adhere to the admission, supervision, and accreditation of private universities.
3. The GATS (General Agreement on Trade in Services of the WTO) applies to the establishment and operation of private universities in the EU. According to this, the EU member states must not discriminate against private universities from other countries in terms of admission and supervision.
The higher education law requirements for the approval and operation of private universities must be proportionate.
4. The EU Services Directive applies to the establishment and operation of private universities in the EU. According to Article 16 of this directive, the university laws of the member states must not impose disproportionate requirements for the establishment and operation of private universities.
5. The EU Commission can be called upon the violation of the rights of private universities according to the GATS since it is responsible for monitoring compliance with these provisions in the EU member states.
The advocate general’s opinion largely corresponds to the 5 demands of EUPHEs to the EU member states with regard to guaranteeing educational diversity, as well as the proportionate requirements for the admission, operation, and accreditation of private universities. If the ECJ follows the advocate general’s requests, this will significantly strengthen the rights and position of private universities in Europe.
Brussels, 06.03.2020
