Setting the Scene

Academic freedom and freedom of scientific research are enshrined in Article 13 of the EU Charter of Fundamental Rights. For the longest time, however, this Charter article received practically no or very little attention in both scholarship and EU institutional and jurisprudential practice. Inattentiveness on academic freedom was also prevalent in the European Higher Education Area for a long time, but this changed since the mid 2010s, and in 2021 a Working Group on Fundamental Values was set up. By contrast, the Council of Europe has been the more active international forum on the topic (and earlier in time), where explicit initiatives on academic freedom have been intensifying over the years. In the EU, it was the Lex CEU circumstances and the subsequent 2020 ECJ judgment in Commission v. Hungary finding a violation of Article 13 of the EU Charter of Fundamental Rights (“CFR”, “Charter”) that put the spotlight firmly on academic freedom.

Judicial pronouncements and philosophical questions

Commission v Hungary amounted to the first – and so far, only – judicial pronouncement of this EU fundamental right. As mentioned and elaborated on in more detail elsewhere, the Court clarified that Article 13 CFR goes beyond freedom of expression and that the second sentence of this provision (“academic freedom shall be respected“) is justiciable. It recognised that academic freedom in Art. 13 CFR comprises (at least) three dimensions: an individual dimension linked to expressive freedoms; an institutional dimension, including a guarantee that universities cannot be deprived of their organisational structures; and an obligation resting on the state to protect higher education institutions from threats to their autonomy coming from any source. However, much remains unknown as to the further content of Art. 13 CFR. Furthermore, the Court did not elaborate in this case what the underlying philosophical rationale of Art. 13 CFR is, although the further development of this Article’s scope will also be dependent on that. There are several philosophical justifications of academic freedom, and they can be grouped into three basic categories. Firstly, the most conventional justification is the seeking and discovery of truth (with John Stewart Mill often being cited as a classic authority) and the advancement of knowledge. Secondly, arguments from democracy (see e.g. Concurring Opinion, Mustafa Erdogan v Others with reference to Recommendation CM/Rec(2012)7 of the Committee of Ministers of the Council of Europe on the responsibility of public authorities for academic freedom and institutional autonomy: these latter two concepts are characterised as “essential values” of higher education, which “serve the common good of democratic societies”). Further sub-arguments are applicable here, and some are discussed in this symposium in relation to the enforcement of EU values (Ceran). Thirdly, arguments from autonomy. Those have been articulated in theories relating to general freedom of expression, but are also linked to academic freedom (see e.g. Dworkin’s work). To be sure, these justifications can be, and often are, also invoked in a combined form. Further inquiry into whether and how academic freedom needs to be enabled and realised as part of a justificatory theory of academic freedom is warranted and will be picked up in this symposium (Gombeer). Work is underway on conceptualising academic freedom in EU law, and the contributions presented here highlight – through their respective contexts – just how urgent it is to reflect deeper on this issue, which has also important practical implications.

The role of EU institutions

The CEU affair also coincides with increased activity, awareness or acknowledgment of academic and scientific freedom on the side of the EU institutions (see further Roberts Lyer who appeals for a human rights-based approach in this symposium). This includes the European Parliament (e.g. The EP STOA Forum on Academic Freedom, and the European Parliament resolution of 17 2024 with recommendations to the Commission on promotion of the freedom of scientific research in the EU, inter alia requesting the Commission to submit a proposal for an act on the freedom of scientific research), and the European Commission (an earlier example is the 2022 Commission Communication on a European Strategy for Universities, which states that “[e]nsuring academic freedom in higher education institutions is at the core of all higher education policies developed at EU level, as well as in the Bologna Process”). The Council of Ministers has become active, too. In the wake of geopolitical tensions it issued a Recommendation on enhancing research security in 2024, which opens its very first recital with the statement “[o]peness, international cooperation, and academic freedom are the core of world-class research innovation”. That, however, triggers the question of how the Council and other EU institutions understand the relationship between academic and scientific freedom on the one hand and security on the other, as elaborated in this symposium (Kunz); but also, its relationship with economic growth and innovation. Here, again, an evaluation of such relationship requires reflection on foundational questions of academic and scientific freedom. Most importantly, as already pointed out elsewhere (here and here) inspired by German constitutional law, and further discussed in this symposium (Kunz), a functional or instrumental view of science, i.e. one that views science as being in essence at the service of economic and political ends, can be called into question by Art. 13 CFR. This Art. 13 CFR dimension should also be taken into account in ongoing discussions and legislative processes around the next Horizon Europe Framework Programme and its relationship to the European Competitiveness Fund.

Academic freedom on campus

The recent unprecedented attacks on academic freedom in the U.S. have been another important catalyst for catapulting academic freedom from niche topic into the mainstream also on this side of the Atlantic. This is the case not least because of the potential implications of these attacks for the global scientific system – its impact on structures for international research collaborations and student exchanges, as well as scientific output.

Attacks on higher education institutions in the US already intensified in 2024, in the context of widespread campus protests over the war in Gaza. The American Association of University Professors (AAUP) condemned politicians, powerful university donors and interests groups as well as institutional university leaders succumbing to pressure exercised by the former on universities. The issue was clearly seen here as an attack on the principles of shared governance, academic freedom, as well as university autonomy and independence. Student protests emerged very quickly also across Europe, facing varied responses. The academic freedom standard contained in the Charter has not received attention in this context so far, and this may not be surprising given the necessity of the situation having to be within the scope of EU law per Art. 51(1) CFR for that standard to be applicable in the first place. More principled questions relating to academic freedom remain, however, in this context, such as: the applicability and interaction between this and other fundamental rights; the extent to which the campus context is determinative in this regard; the different actors involved (students, faculty, administration) with potentially conflicting rights and interests, including different dimensions of academic freedom; how the aims of the protests should weigh in (e.g. a demand for Universities to divest as an intra-University matter); and the purpose of universities – as places of public reason and pluralist dialogue, or other (narrower) purposes. Some of these issues are raised in this symposium (Kovács and Leonhard), and this latter point also needs adressing when considering the distinct issue of academic freedom and the handling of outside (non-academic) speakers on campus and the so-called de-platforming phenomenon.

The potential of the moment

Academic freedom attacks reached extraordinary levels in the US from January 2025, as noted by SAR, and the European Commission responded in April of this year announcing that “Europe has a historical responsibility to defend academic freedom” “[a]s the birthplace of Enlightenment and the Scientific Revolution”. Driven also by ambitions to keep “Europe at the forefront” of science, the Commission proposed several measures, including financial incentives, to enhance Europe’s pull factor for U.S. (and other international) scientists. A month later, Commission President Von der Leyen announced first elements of the “Choose Europe for Science” strategy at La Sorbonne. The first one being that “science in Europe remains open and free” and stating: “We want to enshrine freedom of scientific research into law in a new European Research Area Act. Because as threats rise across the world, Europe will not compromise on its principles. Europe must remain the home of academic and scientific freedom.” The first impetus for such legislative activity came earlier, with the European Parliament initiative playing a significant role, and discussed elsewhere, also in relation to the latter’s potential implications for the principle of conferral. Conferral is implicated given the limited scope of action of the EU in the field of education – unlike research – but at the same time, research and research-based educational activities are interdependent and this needs to be considered for an effective protection of the freedom of scientific research. For the time being, we must await and see the extent to which and how the EU legislature might flesh out the freedom of scientific research as contained in Art. 13 CFR in secondary legislation. If this will materialise, it will be not only an important step towards establishing more detail on the content on freedom of scientific research as one guarantee contained in Art. 13 CFR, but it could also have powerful potential for triggering the scope of application of the Charter in domestic situations in its entirety, including the second sentence of Art. 13 CFR on academic freedom.

This question of applicability of the Charter at Member State level is important, especially in light of the finding of the European Parliament Academic Freedom Monitor 2024 de facto study that “the state of de facto academic freedom across the EU continues to erode”. The monitor found within its scope that “systematic and structural infringements of academic freedom occur only in Hungary”, and ongoing problems and lessons from this country, are further discussed in this symposium (Hanelt, Pap). At the same time, the monitor also pointed to academic freedom threats in most other EU Member States. Next to Commission v. Hungary, there is one more CJEU judgment touching on a potential academic freedom interference emanating from the national level, namely, Boriss Cilevičs concerning language reforms in Latvia. While the Court did not engage with Art. 13 CFR, the Advocate General raised it in his Opinion. The academic freedom lens unveils a complicated picture entangling linguistic minority rights, the right to education, and different dimensions of academic freedom. Two contributions in this symposium (Ceran, van der Jeught) tackle these issues.

This symposium highlights that next to the Member State level, it is also important to look at the EU level. We have noted that considerations related to the new geopolitical landscape; security; the rise of illiberal and authoritarian trends within and outside of the EU and boosting economic growth and innovation in the EU (and occurring at a time when the new Horizon Europe Programme is being negotiated) have increased science-related initiatives. But there are also older persisting themes with academic freedom implications, which are under-investigated: Open access and the protection of intellectual property is one of those, and analysed in this symposium (Angelopoulos); commercialisation is another. The developments are many and rapid, and need to be assessed against the Art. 13 CFR-standard whose content is work-in-progress in judicial and policy practice as well as academic work. This symposium seeks to shed light on all of this and stimulate much needed further reflection.

This post draws in part on V. Kosta, ‘The Content of Academic Freedom in EU Law – A Proposal’ in V. Kosta (ed), Academic Freedom: Constructing its Content for EU law (Cambridge University Press, forthcoming).