In a statement published on 26 of April 2017, the Commission concluded that the Hungarian Higher Education Law of 4 April may be incompatible with the fundamental internal market freedoms. Therefore, the Commission decided to take legal actions and sent a formal notice to the Hungarian government.
With regard to the recent development in Hungary the EU decided not only to discuss the Hungarian Higher Education Law but the overall situation in Hungary in two meetings that took place on 12 and 26 April 2017 in the European Parliament. The following text will discuss the events that took place in April as a response to the new law.
Hungarian education law
The issue concerns the Higher Education Law in Hungary, which might threaten fundamental European Union (EU) freedoms, i.e. freedom of establishment or/and freedom to provide services. Articles 49 and 56 of the Treaty on the functioning of the European Union (TFEU) lay down rules, which prohibit Member States to hinder the exercise of the latter freedoms by State measures that target intra-community services or the right of establishment. Paragraph 2 of Article 49 TFEU provides the right for legal and natural persons to set up and manage undertakings, while Articles 56 to 57 TFEU lay down the right to provide services on a temporary basis by a person established in one Member State to a recipient established in another.
The Central European University (CEU), established after the fall of communism in Hungary by an Hungarian-American philanthropist, offers US-accredited degrees – a crucial draw for foreign students. Firstly, the new Hungarian Higher Education Law requires foreign universities to have a campus both in Hungary and their home countries, which in fact is a measure aimed to restrict freedom of establishment. Secondly, it bans universities outside the EU from awarding Hungarian diplomas without an agreement between national governments – in this case, with the United States (US) (BBC news, 4 April 2017). While the CEU is not allowed to award US accredited diplomas, an issue for non-EU teachers to come to Hungary and teach there arises. It also restricts the CEU’s ability to choose its students, thus on the one hand hindering EU student’s right to receive services and one the other hand CEU’s freedom to provide services on regular or permanent basis to EU’s students (The Guardian, 12 April 2017).
The CEU argued that the amendments to the Hungarian Higher Education Law would make it impossible for the CEU to continue its work as an institution of higher education in Budapest. If the CEU can not continue it would damage the Hungarian academic life and furthermore, Hungary’s relations with its EU partners and with the US. The part of the amendment which constitute a clear discrimination against CEU is, according to the CEU itself, the part which prevents Hungarian universities from delivering programs or issuing degrees from non-European universities on behalf of CEU. Another example of discrimination in the proposed amendment is the rejection of a remission that grant academic staff from non-EU countries to work at the CEU without a work permit. The amendment would create a threshold towards the recruitment. Since the CEU recruits a high number of professors from outside the EU, the new amendment would put it in an unfavorable position (CEU, 28 March 2017).
According to Renáta Uitz, a professor at the CEU, it can be argued from a constitutional aspect, that Hungary is testing the limits of the European constitutional construct by leaning on the possibility for member states to defend their national identities under Article 4(2) of the Treaty of the European Union (TEU). It is no surprise, according to her, that the new Hungarian legal measures are put in terms of national security and counterterrorism. In an era of global terror, such measures will be recognized by both foreign observers and their governments will be sympathetic to such reasons. It is of great importance that European constitutional and political actors comprehends: “The carefully crafted new Hungarian laws use the cloak of national security to stab the rule of law, as understood in Europe, in the heart” (Renata Uitz, 5 April 2017).
The meeting of 12 April
The following text will present a press release from the European Commission released on 12 April 2017. A speech was held by first vice-president Frans Timmerman discussing legal issues relating to Hungary. Recently, there has been a development in Hungary which has resulted in worried reactions amongst stakeholders both in the EU and outside. The development mentioned above has raised questions regarding the shared values of the Union and Hungary’s compatibility with it. As mentioned above, Hungary has adopted a Higher Education Law which has raised concern in the academic community as well as amongst politicians of Europe. The newly adopted law is according to some an attempt to close the Central European University and in turn it can restrict the scientific and academic freedom of thought (Christopher Adam, ‘Hungary’s parliament votes to shut down Central European University’, in Hungarian Free Press, 4 April 2017). Furthermore, the university is one of the most important universities in higher education in Europe. The Commission stated that it will make a legal assessment to review compatibility with the free movement of services and the freedom of establishment.
Margrethe Vestager and Vera Jourova, Commissioners for competition and gender equality, have also expressed worries that the recent events in Hungary may result in issues regarding shared European values as set out in Article 2 TEU. Apart from the education law there are also reasons for concern when it comes to migration laws in Hungary and its compatibility with EU law. Therefore, the Commission will act if there is no positive progress soon. The press release concludes with the importance of a dialogue between the Hungarian authorities and Member States, as well as the Commission and the European Parliament.
The meeting of 26 April
When the second meeting took place on 26 April the Commission had reviewed the Hungarian Higher Education Law’s compatibility with the internal markets freedoms and the Charter of Fundamental Rights and it confirmed EU’s concern. As a result of the review, the Commission decided to take action and commencing an infringement proceeding against Hungary under Article 258 TFEU by sending a formal notice, expecting Hungarian authorities to respond within a month.
The Commission’s first vice-president, Frans Timmerman, also warned the Hungarian government that other laws that has recently been proposed or adopted will continue to be on the Commission’s radar. For example, the treatment of asylum seekers in Hungary and draft legislation on registration of NGOs have raised serious doubts about their compatibility with EU law. Furthermore, it was added that Hungary has not yet answered the EU’s concern regarding compliance with EU rules on the protection of pregnant working women and the Commission soon intents to decide on further action if Hungary does not comply with those rules (Press release – April infringement package). The same date as the meeting took place, the Commission decided to release a public answer in response to the Hungarian Government’s ‘Stop Brussels’ consultation. The Commission’s response had the intention to set the record straight with hard facts because the ‘Stop Brussels’ consultation had factually incorrect or misleading allegations. The Commission emphasized in its answers that EU is not about Brussels but ‘a project driven and designed by its Member States’.
Although, robust criticism was raised towards the Hungarian authorities in the meeting, Frans Timmerman concluded that the aim of the meeting was to seek clarification regarding the Hungarian government’s intentions and that dialogue is the European way to solve misunderstandings or disagreements. He also expressed gratitude to the Hungarian authorities that in the past always engage in dialogue with the EU and to Prime Minister Mr Orban who came to the meeting and debated the issues in the European Parliament.
According to the center-right group of the European Parliament, after the debate Mr Orban told them on 29 April that he would comply with EU demands on academic freedom. At the same time, Mr Orban has said, when speaking to the domestic media, that “nobody will set condition for Hungary” and he will negotiate with the Commission in the coming months for a final result (Reuters, 29 April 2017).
As a result of the recent events, it seems that Mr Orban is in a delicate situation both within the country but also within the European political community. Recently, the president of the center-right group of the European Parliament, Manfred Weber, spoke about the new Hungarian education law, saying that “we do not accept any attacks on academic freedom.” He added that it was the responsibility of the Hungarian head of government to “present solutions and change behavior” (La Libre, 29 April 2017).
It was the result of a confrontation between Mr Orban and Joseph Daul, leader of the EPP, as well as the Presidents of the Council, the Commission and the European Parliament, Donald Tusk, Jean-Claude Juncker and Antonio Tajani, Mr Orban had to comply with the demands expressed by the Commission in its letter to the Hungarian government. According to Siegfried Muresan, the European political family firmly intends to closely monitor the actions of the Hungarian Prime Minister. Mr. Orban has recently stated that this new law, despite appearances, did not represent a threat to the CEU. Manfred Weber says that Mr Orban is open to dialogue (BBC, 29 April 2017). The European People’s Party considered that the fact that Fidesz, the ruling party in Hungary, although it might be expelled over this issue, is still part of the group is an opportunity for the Hungarians to maintain the dialogue with Mr Orban and thus be able to push him “to commit to change the legislation on universities”, according to Mr. Muresan (La Libre, 29 April 2017).
The new law gave rise to a protest movement in Hungary on 1 May. The Momentum movement, led by Andras Fekete-Gyor, organized a demonstration of support for the European Union which brought together several thousand people chanting “Europa!” And brandishing starry banners to walk against the new law, considered “Europhobic” (Le Monde Europe, 2 May 2017).
Although the Hungarian Higher Education Law is the basis for the meetings that took place during April, there are more issues in Hungary relating to its compatibility with EU values. By raising concern on one aspects it also brings light towards other problems that in the future might lead to infringement proceedings. It is interesting to see how quickly the EU responded to the new law in Hungary and how that creates a chain reactions in the political community of the EU and creates discussions in the Member States. When reflecting over the above one can see that all we know for now is that the EU has decided to launch an infringement proceeding against Hungary due to the Hungarian Higher Education Law and if it may be incompatible with EU law.
Denice Wiklund, Ernestas Vaiciunas, Petra Giessbeck and Sherimane Abdoun