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Rule of Law and Academic Freedom (?): Reflections on Hungary’s Case with the Planned Suspension of Erasmus+ and Horizon Europe Funds

In January 2023, the European Commission announced the potential suspension of Erasmus+ and Horizon Europe funds for 21 Hungarian universities. While the discussion is still ongoing, some early conclusions could be drawn on whether this measure complies with the rule of law as a fundamental value of the Union.

Academic Freedom in the European Union: A Short Overview

Academic freedom is a cross-cutting human right that primarily stems from freedom of thought and freedom of expression, serving as a basis for the effective realization of the right to education. In this regard, the development of fundamental rights protection within the European Union is particularly outstanding, as—contrary to several major international human rights conventions—the EU Charter for Fundamental Rights explicitly provides for the freedom of the arts and sciences in Article 13, by stating that “[t]he arts and scientific research shall be free of constraint. Academic freedom shall be respected.” Although the Charter is only applicable to Member States when they are implementing Union law, and academic freedom has traditionally been considered under the education portfolio which is a competence of the Member States, Article 179 TFEU grants competence to the EU in the field of scientific research. Furthermore, its provisions are primarily addressed to the institutions and bodies of the Union with due regard for the principle of sovereignty. Thus, it could be concluded that the requirements of academic freedom are binding upon the Union, and it has a leading role in implementing cross-border higher education programs and research projects.

Among the EU-funded education projects, the success and impact of the Erasmus+ program certainly exceeded any expectation that could have been imagined at the time of its development. The project provides mobility opportunities for students and teaching staff from various backgrounds (including higher education, vocational training, school education, and adult education) to foster cooperation between educational institutions, particularly universities and higher education institutions across and even beyond Europe. Numbers also indicate the undoubted success of the program. Between 2014 and 2021, over 13 million people participated in the mobility program, and the budget for the new cycle of 2021-2027 has nearly doubled compared to the previous one. In addition, another voluminous EU research program is Horizon Europe, which significantly contributes to developing high-quality scientific research in the EU, boosting European industrial competitiveness, and fostering innovation in the EU while supporting achieving global goals, such as combatting climate change. These two projects were at the center of attention in January 2023, when the European Commission announced their suspension for the majority of Hungarian universities. The announcement is particularly topical, as it came in the middle of the rule of law debates between the EU and Hungary, presumably connected to the ongoing Article 7 TEU procedure and the implementation of the 2020/2092 Regulation on a general regime of conditionality. (The so-called conditionality mechanism will be addressed in detail in the next section.)

The Suspension of Erasmus+ and Horizon Europe Funds in the Context of the Rule of Law Debates with Hungary

In January 2023, the European Commission announced that it would block Hungary’s participation in the Erasmus+ and the Horizon Europe programs retroactively to December 2022. The decision affected 21 Hungarian universities that are maintained by public trust foundations (as established in Act IX of 2021 on Public Interest Asset Management Foundations Performing Public Duty and its Annex I) which, according to the Commission, poses a risk to academic freedom. Unfortunately, such a decision was already expectable as the conflict was already embedded in the several-years long rule of law debate between Hungary and the EU, which, in 2018, culminated in the European Parliament’s proposal to determine, pursuant to Article 7(1) of the TEU, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded.

Parallel to the ongoing Article 7 TEU procedure, in April 2022, the European Commission also triggered the so-called conditionality mechanism against Hungary. The abovementioned Regulation 2020/2092 aims to protect the Union budget by suspending EU funds to a Member State in case there are systemic breaches of the principles of the rule of law. Interestingly, the CJEU did not see a problem in establishing other procedures relating to the respect for values contained in Article 2 TEU parallel to the procedure set out in Article 7 TEU, provided that those procedures are different in terms of their aim and subject matter. However, the discretionary power of the Commission in determining whether the breaches of the principles of the rule of law in a Member State affect or seriously risk affecting the sound financial management of the Union budget may be too wide, considering that the clear risk of a serious breach of the rule of law may only be established during the Article 7 TEU procedure. Concerns about the Regulation 2020/2092 granting the Commission too much discretion were also expressed by the Court of Auditors, the Committee of the Regions, and the Economic and Social Committee in their opinions during the legislative procedure. Nevertheless, in September 2022, the Commission proposed a Council implementing decision on measures for the protection of the Union budget in connection with Hungary.

Against this background, the Commission excluded the majority of Hungarian universities from participating in these educational programs. While the Commission did not legally justify the exclusion—as its basis is also questionable—, it is inextricably linked to the application of the conditionality mechanism, which could be concluded if one takes a closer look at the preparatory documents of the adopted Regulation 2020/2092.

First, it should be noted that the Regulation tries to protect non-state or non-governmental final beneficiaries by providing that the imposition of the measures shall not affect the obligations of government entities or Member States to implement the program or fund affected by the measure. In particular, the obligations towards final recipients or beneficiaries include the obligation to make payments (Article 5(2)). The Regulation does not dedicate particular weight to the disadvantage posed by its measures to the final beneficiaries of the funds, yet it briefly provides that the Commission shall provide information and guidance for the benefit of the final recipients or beneficiaries via a website or an internet portal, as well as adequate tools for them to inform the Commission about any breach of the government’s obligations directly affecting them (Article 5(2)). In other words, the government is still obliged to perform its duties toward the beneficiaries even in the event of the suspension of EU funds established on the basis of the Regulation. To this end, the Commission finds providing information online to the beneficiaries sufficient.

The adequacy and proportionality of such a requirement from the Commission also raises questions from the perspective of the students and researchers benefiting from the funds, however, this obligation was included in the Regulation only upon the European Parliament’s proposal during the first reading of the draft Regulation. Furthermore, the draft proposal, as submitted by the Commission in 2018, explicitly mentions the beneficiaries of these programs in its Explanatory Memorandum by stating that

“[m]easures need to be adopted in full respect of the principles of transparency and proportionality. It is also important to ensure that the consequences of measures have a sufficient connection with the aim of the funding. This also points to the need to ensure that the consequences fall on those responsible for identified shortcomings. It should therefore reflect the fact the individual beneficiaries of EU funding, such as Erasmus students, researchers or civil society organisations, cannot be considered responsible for such breaches.”

Regrettably, this section did not, in any form, appear in the adopted version of the Regulation. In light of the fact that the Explanatory Memorandum explicitly refers to Erasmus students and researchers who are the individual beneficiaries of the two suspended funds, the Commission’s decision of suspension raises serious concerns, also from the perspective of respecting the values upon which the Union is founded, including the respect for the rule of law.

The first concern arises in connection with the equality of Member States as provided in Article 4(1) TEU. While the Erasmus+ program is expanding in all terms—including its geographical scope, budget, and material dimension—, reducing the possibilities of one Member State is a worrying prospect. Candidate states like North Macedonia, Serbia, or Türkiye—in case of which the accession negotiations are currently at a standstill—can participate in most opportunities provided by the Erasmus+ program, while the majority of Hungarian universities are blocked from benefiting from them, clearly as a result of the rule of law debate with the government. Notwithstanding the Commission’s (seemingly minimal) concern about the non-governmental final recipients of the funds, it could be concluded that this step certainly goes beyond the principle of proportionality required by the Regulation, and the principle of transparency, which was regrettably not included in the Regulation.

Second, the possible suspension of the Erasmus+ and the Horizon Europe funds raises concerns about its compatibility with the rule of law. Rule of law is a fundamental value upon which the Union is founded, along with the values of respect for human dignity, freedom, democracy, equality, and respect for human rights, as laid down in Article 2 TEU. These values are at the center of concern in the Article 7 TEU procedure and various other procedures and mechanisms in the EU’s rule of law toolbox. While the EU carefully monitors the respect for the rule of law in the Member States through various tools, including the rule of law framework, the rule of law mechanism, the EU Justice Scoreboard, and, to some extent the European Semester; the values referred to in Article 2 TEU also bind the Union itself, primarily because these values were not developed in the context of the European integration but in the domestic legal systems of the Member States (see: the Internationale Handelsgesellschaft ruling). However, contrary to monitoring the rule of law situation in the Member States, there are fewer tools to assess the implementation of the rule of law at the Union level.

Consequently, the question arises whether the exclusion of many universities in a Member State complies with the requirement to respect the rule of law, even in the absence of a decision establishing the existence of a clear risk of a serious breach by the Member State of the rule of law as provided in Article 7 TEU. Considering that the negotiation between the Commission and Hungary on the matter is still ongoing, and that the final decisions in the Article 7 TEU procedure and the conditionality mechanism are also yet to be seen, it would be too early to draw definitive conclusions. However, the announcement itself, and the fact that over two years after its publication there is still a lot of insecurity about the participation of these universities in the two educational programs certainly raises serious concerns. Although the planned suspension of the funds is strongly connected to Hungary’s long-standing conflict with the EU about the situation of the rule of law in the country, its analysis exceeds the scope of this article. The author believes that political discussions cannot, in any case, result in a situation that is significantly disadvantageous for individuals, even in a paradoxical comparison with non-EU citizens, whose countries do not have the intention to join the EU in the near future (such as Iceland, Liechtenstein, or Norway) or do not seem to join the EU in the upcoming years (North Macedonia, Serbia, or Türkiye), let alone the comparison with other EU citizens.

Therefore, it could be concluded that the planned suspension of the mentioned EU funds raises serious concerns that are yet to be answered. From a legal point of view, the question of legitimacy is at the center of concern, as the Commission’s justification for excluding Hungarian universities from the two programs—with respect to their academic freedom—seems somewhat arbitrary and is not sufficiently established in any procedure that would justify the disadvantageous result for non-governmental beneficiaries. Furthermore, such a measure would also question the EU’s respect for the rule of law and respect for academic freedom, particularly in research projects, as laid down in the Charter and the TFEU.

Any Prospects for the Future?

Notwithstanding the insecurities concerning the potential suspension of the Erasmus+ and the Horizon Europe projects, Hungarian government entities are obliged to implement the programs or funds affected by the measures adopted in the conditionality mechanism. Consequently, the Hungarian government recently announced the launch of two programs: the Pannonia Scholarship program and the HU-rizont research program. The first program aims to help Hungarian students studying at various universities around the world, including American, British, South Korean, Japanese, and Singaporean universities, thus providing an alternative to the Erasmus+ program for Hungarians. The HU-rizont program is addressed to researchers who may be excluded from the Horizon Europe funds aiming to foster cooperation between Hungarian and foreign universities to carry out joint research projects.

Therefore, it could be observed that the Hungarian government seeks to find ways to perform its commitments, as required by the Regulation, to provide opportunities for Hungarian students and researchers to continue participating in international educational and academic programs. While this development gives hope for the discriminated students and researchers, it shall be seen that a final solution has to be provided by the Commission to put an end to this unworthy situation. The launch of the two government-funded programs rather addresses the consequences, not the root of the problem, as it does not solve the disadvantageous situation in which Hungarian students and researchers found themselves. Thus, the author believes that respect for the rule of law and academic freedoms, particularly the freedom of scientific research cannot be at stake in the political disputes.

Enikő KRAJNYÁK is an Assistant Lecturer and PhD Candidate in Human Rights Law at the Department of Public International and Comparative Law at the University of Miskolc, and a Scientific Researcher at the Central European Academy in Budapest, Hungary. In 2023, she received the Diploma of Excellence in International and Comparative Human Rights Law from the René Cassin Foundation in Strasbourg, France. Currently, she is also an LLM Candidate in European Human Rights Law at the Eötvös Loránd University in Budapest.

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