Academic Freedom of Language

The freedom to teach, conduct research, and study is inextricably linked to language, which shapes how knowledge is produced and contested. Therefore, a legal framework that regulates academic language affects academic freedom. Yet, Article 13 of the Charter of Fundamental Rights of the European Union, while establishing that freedom, does not refer to any linguistic rights. This prompts the question of whether academic freedom encompasses the right to choose the language in which to exercise it. The answer is complicated and requires a distinction to be made between its two dimensions: institutional and individual.

In the institutional dimension, States enjoy broad discretion – academic freedom does not oblige them to establish or fund universities in minority languages, though they must in principle allow for the establishment of privately funded institutions which may teach in minority (or other) languages, subject to conditions such as quality standards or general national linguistic requirements. By contrast, in its individual dimension – research and publication – academic freedom includes the right to use any language.

The institutional right to teach in other languages

The Boriss Cilevičs judgment (2022) is the sole instance to date in which the European Court of Justice (ECJ) has had the opportunity to assess the linguistic aspects of university education. Unfortunately, the legal scope of this judgment is rather limited, insofar as the ECJ did not evaluate academic freedom per se. Instead, it limited its review to the compatibility of Latvian law with the EU internal market freedom of establishment (Article 49 TFEU).

The facts of the case are as follows. In 2018, the Latvian legislature adopted a law which made Latvian the mandatory and exclusive language of instruction in all higher education institutions, with the exception of two, where English could be used. In certain circumscribed instances, Latvian law also permitted the use of an alternative (EU) language of instruction, for instance within the context of European or international cooperation.

Members of the opposition in the Latvian parliament challenged this linguistic regime in the Latvian Constitutional Court. They argued that the new language law violated the right to education and restricted the autonomy of privately funded (Russian-language) universities, as well as the academic freedom of their teaching staff and students. Furthermore, they alleged that EU law had been breached (the freedom of establishment (Article 49 TFEU), the free movement of services (Article 56 TFEU), as well as the freedom to conduct a business (Article 16 of the Charter)).

As the Latvian Constitutional Court stated in its final judgment on this matter, the language law must be contextualised within the broader historical backdrop of the forced Russification of Latvia during the Soviet occupation, and the subsequent repercussions thereof. As a result, a significant proportion of the Latvian population still lacks adequate proficiency in Latvian, a situation that has been identified as a pressing concern and the underlying reason for the Latvian language law (judgment of 9 February 2023, p. 60).

The Constitutional Court assessed the constitutionality of the language law in relation to the constitutional rights to education and academic freedom. It ruled that the particular requirement to offer study programmes exclusively in Latvian violated the Constitution insofar as these provisions pertained to private higher education institutions, their teaching staff and students. Consequently, the provisions pertaining to privately funded universities were annulled. It is indeed crucial to recall that the issue pertained exclusively to privately funded (in practice, Russian-speaking) universities. The question of the validity of the new language law for publicly funded universities was not raised by any of the parties involved.

Notwithstanding the Constitutional Court’s resolution of the dispute, preliminary questions regarding the aforementioned EU law were nevertheless referred to the ECJ. The rationale behind this decision was that the language law had been in effect prior to its annulment, and therefore, had possibly impacted the universities concerned.

In its judgment, the ECJ is relatively concise in its discussion of the case’s substance. The Court limits its assessment to the freedom of establishment (paras. 54-57) and finds that the language law at issue forms an obstacle for educational institutions from other EU Member States. Indeed, these institutions are compelled to bear additional costs in the form of hiring personnel proficient in Latvian (paras. 63-64).

Regarding the justification for that restriction, the Court reiterates its previous case law that EU law does not preclude the pursuit of a policy aimed at protecting and promoting one or more official languages of a Member State (judgment of 16 April 2013, Las, para. 25), that the Union respects its rich cultural and linguistic diversity (referring to Article 3(3), fourth subparagraph, TEU and Article 22 of the Charter), as well as the national identity of its Member States (Article 4(2) TEU), which includes the protection of the official language of an EU Member State (judgment of 12 May 2011, Runevič-Vardyn and Wardyn, para 86). The Court also reiterates the importance of education for the achievement of such a language policy (judgment of 28 November 1989, Groener, para. 20).

The Court finds that the language requirement for higher education is both appropriate and coherent: the law promotes the use of Latvian by the entire population and ensures that Latvian is also used in university-level education (para. 74). Moreover, the language law is considered proportionate, with certain exceptions being permitted for teaching in other EU languages.

In summary, the judgment confirms the significant discretion of Member States to regulate language use in higher education. It is evident that, in principle, an exclusive language policy for higher education in the official language is compatible with the freedom of establishment under EU law.

The elephant in the room

In his opinion (para. 112), Advocate General Emiliou explicitly emphasises the importance of the Russian language as a minority language in Latvia. It is the elephant in the room that the ECJ carefully avoids to mention in its judgment. The Advocate General’s position on the matter is that the prohibition on privately funded higher education institutions holding courses in Russian has a significant impact on the language rights of the minority (para. 113). It is unfortunate that the Court did not assess that aspect of the case.

This can be explained by recalling the observation that the ECJ evaluates the language law from the vantage point of the internal market and not from the perspective of constitutional principles such as academic freedom. This is because the Latvian Constitutional Court had previously examined the issue in relation to the right to education (Article 112 of the Latvian Constitution) and the right to academic freedom (Article 113 of the Latvian Constitution) in its judgment of 11 June 2020, declaring the language regulations unconstitutional as to privately funded universities.

It is also noteworthy that, while the ECJ acknowledges that the issue brought before it concerns privately funded universities (paras. 28, 35, 37), it does not explore the relevance of that aspect of the case.

The crucial distinction

In the Latvian Constitutional Court’s judgment of 11 June 2020 (English press release), which was confirmed in its judgment of 9 February 2023 (following the ECJ judgment), the language regulation for State-funded universities was not contested. It was evidently taken for granted that Latvian legislation could stipulate the language of instruction in State-funded universities.

In its review of the language regime as to privately funded universities, the Constitutional Court acknowledges that it is a legitimate objective to strengthen the role of Latvian in higher education. Nevertheless, the Court finds that more lenient measures were conceivable, including a comprehensive quality assessment of the instruction provided in all private institutions of higher education. In a similar manner, allowing the use of other languages in certain branches of science or studies would impose fewer restrictions on the autonomy and academic freedom of institutions of higher education.

Why is this distinction on the basis of the funding of universities so crucial? It is widely accepted that States retain the prerogative to establish a linguistic regime within their administration, judicial system, and public educational institutions, as evidenced in the Ballantyne case (1993) before the UN Human Rights Committee. There appears to be an absence of any principle in international law that grants linguistic minorities a right to (publicly funded) university education in their own language. States are under no active obligation with regard to (linguistic) minorities in this respect (see, for instance the lenient wording with regard to State obligations in Article 10(2) of the Framework Convention for the Protection of National Minorities).

In the private sphere, however, the freedom of language, which is inextricably linked to the freedom of expression, must be protected (see, in this regard, Article 27 of the UN International Covenant on Civil and Political Rights). The line that must not be crossed, appears to be exclusivity: the use of other languages must be tolerated alongside the official one (see the aforementioned Ballantyne case).

In this regard, it can be contended that the establishment of privately funded universities should be permitted under the academic freedom of language, as implicitly confirmed by the judgment of the Latvian Constitutional Court. The ECJ’s judgment (para. 84) provides an additional argument, as it states that “legislation of a Member State which would require, with no exceptions, that higher education courses of study be provided in the official language of that Member State would exceed what is necessary and proportionate (…). In actual fact, such legislation would lead to the outright imposition of the use of that language in all higher education courses, to the exclusion of any other language and without taking account of reasons that may justify different higher education courses of study being offered in other languages.”

In any event, it is the prerogative of the State to mandate minimum educational standards for private institutions teaching in a minority language and to require them to provide their instruction partly in the official State language(s).

Research and publications

The Cilevičs judgment of the ECJ does not address this aspect of academic freedom. An examination of French constitutional case law, however, reveals an apparent alignment with the aforementioned distinction between the public and the private sphere. In the context of the comprehensive Law on the Use of the French Language (the so-called Toubon Law) in France, which mandates the use of French in various scenarios, the French Conseil Constitutionnel, in a judgment dated 29 July 1994, determined that the exclusive use of the French language in private domains could not be made compulsory.

It held that, as to the core of the private domain, the freedom of thought and expression must be preserved (it should be noted that the French Constitution does not explicitly safeguard academic freedom). Consequently, the requirement for university researchers to publish all their works in French, or to use a designated terminology approved by language committees (to counter the so-called franglais), was deemed unconstitutional.

In a similar manner, the Toubon Law imposes a broad obligation on events, seminars or conventions organised in France by either natural persons or corporate bodies of French nationality. It stipulates that all participants are entitled to express themselves in French. Furthermore, all documents distributed to participants must be made available in French. However, such documents may also include translations in one or more foreign languages. Exemption is granted for events, seminars and conventions exclusively organised for foreign visitors or designed to promote France’s foreign trade. In its judgment, the Conseil constitutionnel validated these obligations, as the provisions do not, as such, exclude the use of other languages than French. This further demonstrates the extensive discretion States are afforded in this domain.

To summarise, the law as it currently stands does not oblige States to either establish or fund universities in minority languages. However, in principle, they must tolerate the establishment of privately funded institutions that may teach in minority (or other) languages. By contrast, academic freedom includes the right to use any language in its individual dimensions of research and publications.