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The likelihood that the Budapest-born U.S. investor and philanthropist George Soros and the Budapest-centred head of the current Hungarian government Viktor Orban will become best friends is quite small. Quite big will be the satisfaction of the Central European University founded by Soros himself in the face of today´s EU Court of Justice´s judgment which basically states that it was illegal to force the university – founded after the fall of the Iron Curtain to promote liberal democratic values and open societies – out of the country.
The Court came to the conclusion that Hungary amongst others has failed to comply with the provisions of the Charter, especially its Article 14 (3) that lays down a freedom to found educational establishments. The Court underlines that “academic freedom also includes an institutional and organizational dimension” and stresses that for an educational establishment the connection to an infrastructure is “a condition essential for the exercise of teaching and research activities.”
The Charter right in action
The Charter in Article 14 states three things. It stresses that “everyone has the right to education”, adds that this includes “access to vocational and continuing training” and “the possibility to receive free compulsory education” and finally establishes in its third paragraph a “freedom to found educational establishments”.
|Two examples how EU legislation refers to education
What do the constitutions of Member States say?
All of the Member States have provisions on education and the Charter in a way summarises these constitutional traditions. The majority of constitutions do explicitly provide for free compulsory education as is laid down in the Charter. However, this is often limited to primary education only, other constitutions provide an age limit (16 in Bulgaria and Lithuania, 18 in Poland) or delegate the details to national legislation as is the case in the constitutions of Slovakia and Cyprus. In addition, the freedom to found educational establishments is specified in most of the constitutions. This is often phrased as a possibility and only sometimes as a proper right. Whereas the Charter prominently refers to vocational training, this is the case for just a handful of national constitutions which also provide in this regard a right to “choose his vocation and to train for it how and where he wishes”.
The autonomy of universities is established in the constitutions of Bulgaria, Croatia, Greece, Portugal, Slovenia and Spain. The Greek constitution even protects university professors against dismissal. At least ten constitutions refer to parents rights in the context of education. Often this is put – as in the Charter – in the context of their religious or philosophical convictions. But there are also more far reaching statements with for instance the constitution of Ireland acknowledging that the “primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children”. On the other side of the spectrum is a far reaching reading of the States` mission as laid down in Art 16 (2) of the Greek constitution: ”Education constitutes a basic mission for the State and shall aim at the moral, intellectual, professional and physical training of Greeks, the development of national and religious consciousness and at their formation as free and responsible citizens”.
Talented students receive special attention in the constitutions of Italy, Lithuana (limited to citizens) and Malta – they committ the State to proactively promote these pupils. Disabled persons find recognition in the constitutions of Malta and Portugal. The Portuguese constitution charges the State with “protecting and developing Portuguese sign language, as an expression of culture and an instrument for access to education and equal opportunities”. The status of national and/or minority languages is addressed in provisions on education within the constitutions of Estonia, Portugal and Romania.
While the EU Member States have signed the EU treaties in the determination to “promote the development of the highest possible level of knowledge for their peoples through a wide access to education”, the EU´s respective competences remained limited with the EU held to “fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity”. But still: as the case judgment quoted at the beginning of the article elucidates, the right to education kicks in wherever EU Member States act within the scope of EU law.
Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!
|Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.|
 The Court refers here to the recommendation “Academic freedom and autonomy of universities” as adopted by the Parliamentary Assembly of the Council of Europe on 30 June 2006. The Court also refers to point 18 of the recommendation concerning the status of higher education teaching staff, adopted on 11 November 1997 by the General Conference of the United Nations Educational, Scientific and Cultural Organization (Unesco), meeting in Paris from October 21 to November 12, 1997 in its 29th session, according to which “[l] autonomy is the institutional expression of academic freedom and a necessary condition for teachers and higher education establishments to be able to perform the duties incumbent upon them ”. Point 19 of this recommendation states that “[i] t is the duty of Member States to protect the autonomy of higher education institutions against any threat, wherever it may come from“. These references show that the interpretation of the Charter strongly builds on the international human rights aquis as it develops also in fora outside the ‘EU-machinery` thereby taking not only national law but also the law and politics of the Council of Europe and the United Nations into account.
 This latter aspect however needs to take “due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.”
 Art. 23 of the Bulgarian and Art 41 of the Lithuanian constitution, Art. 70 of the Polish constitution.
 Art. 42 (1) of the Slovak and Art. 20 (3) of the Cypriot constitution.
 Compare in this regard for instance Art. 42(3) of the Slovak constitution (schools other than state schools may be established) with Art. 23 (2) (6) (7) of the Dutch constitution stating that everyone is “free to provide education” and providing respective details on public oversight.
 Art. 18 of the Austrian Basic Law on the General Rights of Nationals, compare also Art. 26 (1) of the Czech constitution.
 Art.16 (6) of the Greek constitution,
 By the way: The provision of home schooling is referred to in the constitutions of Austria, Denmark and Ireland. Section 76 of the Danish constitutions, Art 17 (3) of the Austrian Basic Law on the General Rights of Nationals, Article 42.2. of the Irish constitution.
 Art. 42.1. of the Irish constitution.
 The Portuguese constitution also offers a very ambitious mission statement in this regard (see Articles 43 and 74 of the Portuguese constitution).
 Art. 34 of the Italian constitution, Art. 41 of the Lithuanian constitution, Art. 11(1) of the Maltese constitution.
 Art. 17 (3) of the Maltese constitution and Art. 74 (2) lit g) of the Portuguese constitution.
 Art. 74 (2) lit h) of the Portuguese constitution.
 Art. 37 of the Estonian constitution, Art. 32 (3) of the Romanian constitution, Art. Art. 74 (2) lit i) of the Portuguese constitution.
 See the preamble and Art. 9 of the TFEU.
 See Artt. 165 and 166 TFEU.