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Interview with Prof. Kurt Deketelaere on academic freedom

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Kurt Deketelaere profile

“Academic freedom, like freedom of any kind, is not a spontaneous state of affairs. The public authorities must respect, protect, ensure and promote it”, says Kurt Deketelaere, Professor of Law and Secretary-General of the League of European Research Universities (LERU). He will speak at the European Parliament’s STOA conference How to provide enforceable protection for academic freedom at EU level? on 28 November 2022.

What does academic freedom mean to you?

Kurt Deketelaere: I refer to our (just updated) LERU paper Academic freedom as a fundamental right. There we state that academic freedom can be considered to comprise the following three aspects:

    1. Far-reaching individual rights to expressive freedom for members of the academic community (both staff and students) mainly as free enquirers, including the freedom to study, the freedom to teach, the freedom of research and information, the freedom of expression and publication (including the ‘right to err’), and the right to undertake professional activities outside of academic employment;
    2. Collective or institutional autonomy for the academy. This implies that departments, faculties and universities as a whole have the right (and obligation) to preserve and promote the principles of academic freedom in the conduct of their internal and external affairs, while they are also protected against undue interferences;
    3. An obligation for the public authorities to respect and protect academic freedom and to take measures in order to ensure an effective enjoyment of this right and to promote it.

These three dimensions of academic freedom are not mutually exclusive, but on the contrary, they mutually reinforce one another.

In case of conflict between the individual and the institutional rights, you might need to balance all rights and interests carefully, and give special consideration to the aspects I just mentioned – institutional autonomy should not be used by higher education institutions as a pretext to limit the individual rights of higher-education teaching personnel.

If restrictions on individual academic freedom are unavoidable, they should not go any further than necessary in order to achieve legitimate institutional academic aims, with means being proportionate to these aims.

Why is academic freedom so important and why should it be protected?

Kurt Deketelaere: Academic freedom is of paramount importance for current and future research as well as for teaching at universities, in Europe and worldwide. It makes it possible for universities to serve the common good of society through searching for and disseminating knowledge and understanding, and through fostering independent thinking and expression in academic staff and students.

Furthermore, academic freedom can be ensured only by means of a careful case-by-case implementation, supported by institutions to make this freedom a reality. This does not take away the need for European and national policymakers and legislators to take measures of a more general nature to effectively protect, facilitate, strengthen and optimise academic freedom.

Can you give some concrete examples of threats to academic freedom? Does this occur often?

Kurt Deketelaere: Just have a look at Free to Think, 2022, the annual report by Scholars at Risk’s Academic Freedom Monitoring Project. Aiming to raise awareness and urge people to protect and promote academic freedom, the report explores concerning trends in attacks on higher education communities around the world.

The 2022 Report indicates that attacks on academic freedom and higher education are frequent, pervasive, and have wide-ranging – at times deadly – consequences for scholars, students, and society at large. These attacks occur mostly in closed societies, where the right to think and speak freely is routinely oppressed, and amid political and economic crises and armed conflicts. But they also occur in more open, democratic, and stable societies, leaving no country immune from their threat.

The report indicates that state and non-state actors, including armed militant and extremist groups, police and military forces, government authorities, off-campus groups, and even members of higher education communities, among others, carry out these attacks, which often result in deaths, injuries, deprivations of liberty, and the upending of scholars’ and students’ academic careers.

Beyond their harm to the individuals and institutions directly targeted, these attacks, according to the report, undermine entire higher education systems, by impairing the quality of teaching, research, and discourse on campus and constricting society’s space to think, question, and share ideas. Ultimately, they impact all of us, by damaging higher education’s unique capacity to drive the social, political, cultural, and economic development from which we all benefit.​

The best-known recent example in Europe is the case of the Central European University in Budapest, which had to close doors under Hungarian Law and had to move to Vienna. This led to an interesting infringement procedure initiated by the European Commission. The European Court of Justice’s judgement of 6 October 2020 was path breaking as it was the first case in which the Court clearly concluded to a violation of Article 13 of the EU Charter of Fundamental Rights (“The arts and scientific research shall be free of constraint. Academic freedom shall be respected.”), next to a violation of the General Agreement on Trade in Services (GATS).

Specifically, which governmental institutions and organisations have roles to play in protecting academic freedom?

Kurt Deketelaere: We need to realise that freedom of any kind is not a spontaneous state of affairs. For academic freedom to exist in any meaningful sense, the public authorities must respect, protect, ensure and promote it. A state has legal obligations with respect to academic freedom, and any failure to fulfil its obligations amounts to a violation of academic freedom.

It is clear that ministers for education, research, justice, etc play an important role. They need to develop clear policies and sanctions in case of violation. Violations which must be sanctioned by courts.

Obviously, on the working floor, institutions of higher education themselves have an important role to play: clear institutional policies protecting academic freedom are a must.

Are there any legal implications?

Kurt Deketelaere: Academic freedom is protected, directly or indirectly, by legal frameworks at national level (constitutions), European level (e.g. the EU Charter of Fundamental Rights; European Convention on Human Rights) and international level (e.g. the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights).

At all those levels, there is a significant amount of cases in which competent authorities decide upon claimed violations of academic freedom. Of course, for us, the European Court of Human Rights in Strasbourg remains the most important point of reference in this matter. We will have to see if more cases will be submitted to and decided by the European Court of Justice.

Do you think the EU is sufficiently equipped to protect the university, its institutional autonomy, and in particular academic freedom?​

Kurt Deketelaere: Well, it is sometimes argued that the weakness of Article 13 is the lack of competence of the EU in the field of (higher) education. Pursuant to Article 6 TFEU, the Union has “competence to carry out actions to support, coordinate or supplement the actions of the Member States” in the field of “e) education, vocational training, youth and sport”. Thus, education is not a core competence of the EU: the Union has a weak competence, that is secondary to the Member States’ competences.

Since the Charter of Fundamental Rights only applies to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law, one may have the impression that it is of little use to the protection of academic freedom.

Such a fear, however, may be exaggerated. In the first place, the Central University case illustrates that Article 13 can be usefully applied when academic freedom is endangered. In this case, the European Court of Justice observed that Hungary’s restrictive legislation interfered with its commitments under GATS/the World Trade Organisation and Article 49 of the Treaty on the Functioning of the European Union (TFEU) on freedom of establishment. As GATS is part of EU-law, the Charter could be usefully invoked. This is, of course, all the more so with regard to Article 49 of the TFEU.

At this point, we could also add that the EU has competence in the field of scientific research. Should a problem occur with regard to academic freedom in connection with specifically scientific research, the link with Article 13 of the Charter would be established through Article 179 TFEU (on research).

So whenever there is a link with the EU’s competences (freedom of establishment, freedom of services, scientific research,…), Article 13 comes into play. Even, as the GATS example shows, Article 13 can be applied in cases where the discussions concern rights and obligations covered by international agreements to which the EU is party. In that scenario, those rights and obligations are part and parcel of EU-law. Thus, the Charter can be relied on.

Although it appears to us that, through this mechanism, the application of EU-law (and therefore the Charter) covers quite some issues of Academic Freedom, we cannot exclude that in some situations no links with EU-law can be established, in which case the Charter cannot be applied.

The most straightforward way to tackle this problem would be a revision of the TFEU. The Union could be given the competence to protect academic freedom. The European Parliament and the Council could then adopt the necessary measures to protect and promote academic freedom.

Other options include, firstly, that the EU could use existing competences on freedom of establishment or services to set a minimum floor of protection of academic freedom so as to allow and facilitate the free movement of academic services (i.e. to abolish obstacles to the freedom of expression that result from differences in standards of protection).

The creation of a minimum floor of protection would allow to bring within the scope of EU law even purely internal situations concerned within this new minimum floor.

Secondly, we could also use the existing EU competence on research to promote academic freedom, though that can only be done within the limits of the provisions in art. 179 of the TFEU.

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