Master thesis International and European Law – European Union Law University of Amsterdam, Faculty of law
Actions of the European Union within the field
of education
THE OUTER LIMITS OF ARTICLE 6
TFEU
VANDAMME, THOMAS
11817089 badea.anaa@gmail.com
Badea Ana Maria Alexandra
2020
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Abstract
Education has been an overlooked yet quite controversial subject within the European Union territory. When it comes to the decisional process, Member States are completely and utterly responsible to the policies to be adopted. The Union has adopted quite a cautious attitude when it comes to this are, but it seems as ever year its voice gets louder and stronger. The purpose of this paper is to explore whether the Union has the ability to be more powerful than everyone thinks or not. The reasoning behind this subject lay in the factual reality that reveals worrying situations. Despite the fact that the 21st century is characterized by innovation and technological progress, a great number of people are still highly misinformed, illiterate even. In the face of the Member States’ neglect towards its citizens, what is that the Union can and cannot do?
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Contents
Education within the European Union ... 4
Article 6 TFEU: competence to support, coordinate or supplement ... 7
Limits to article 6 TFEU ... 9
Incentive measures ... 10
The link between internal market and education ... 19
Conclusions ... 26
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Introduction
This paper aims to reveals how the field of education has been treated in the European Union over the time. It goes onto analysing social, political and legal issues that arose and that may still resurface in the future in the tripartite interaction between the Union, Member States and the European citizens.
The structure of the paper aims to firstly portray the views of the European citizens towards the Union and the impact of lack of proper education policies in schools and higher education institutions has on the unity and objectives set in Treaties. A misinformed population is a danger towards the integration and values that the Union promotes and intends to implement.
It further goes onto analysing the competences of the European institutions and member states vis-à-vis the education field and policies that may be implemented across the territory of the Union. The main focus is the legal basis that may be found in article 165 of the Treaty on the Functioning of the European Union; as such, the Union is prohibited from harmonising national policies but still has some normative and non-normative instruments at hand. The objective is to reveal the impact and influence the Union has on the education field, without having access to legally binding prerogatives. In the further chapters I will also demonstrate how the Bologna process has numerous benefits but disadvantages when it comes to the European values, alike. Additionally, the Erasmus programme is a long-term action that has delivered plentiful positive results over the time and that, has yet to deliver even greater results. The member states reluctance towards the Union’s interventions in the field of education has slowed down the ambitious promises the programme has set in plan, but progress has been made.
Lastly, I will show the connections between education and internal market and demonstrate that the Union’s actions hold a lot of value and influence when it comes to the prosperity of the community, member states and, most importantly, European citizens alike.
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Education within the European Union
This chapter is focused on illustrating how the European citizens view the European Union and how the relationship between the member states and the EU functions in the field of education. Section A will focus on the educational systems across the European Union, that although different, a common nominator may be found in all of them: lack of European education within primary and secondary education. Section B will demonstrate the need for an European educational policy through numbers and statistics that display the European citizens’ need for information and knowledge. By the end of this chapter, I want to raise awareness towards the need for progressive European curricula.
A. Member states and the EU
Each of the Member States is responsible and has sovereignty over its education related policies. As provided by article 165 of Treaty on the Functioning of the European Union, the Member States are fully responsible for the content and organisation of vocational training, whereas the Union should support and supplement Member States’ actions through vocational training policies.
Member States’ educational policies are mainly based on their cultural and historical heritage, rather than on actual issues and events that occur at the present time. Students learn more about their ancestors and about other countries and less about the current social and political order that governs their states and, implicitly, their rights and obligations.
By signing the Treaties, Member States agreed to limit their sovereign rights and created a common legal order which became an integral part of their domestic legal orders1.
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The principle of the primacy of Union law, inherent in the specific nature of the EU and a crucial corollary to the equality of Member States, is stated in a declaration annexed to the Lisbon Treaty2.
This, then, is the first observation: the EU has become an important reality, a fact of life and law, with considerable impact on the society in which citizens live. This first observation is in stark contrast to the second observation, which follows now.3
B. Views of the European citizens
It is often said and believed that the EU suffers from a ‘democratic deficit’. The ordinary EU citizens do not trust, nor do they understand the decision-making procedures taken at the EU level that are of direct concern to them and their interests as citizens of the Member States.
A study requested by the European Commission4 for the year of 2019 portrays the views of the European citizens towards the EU institutions, their rights as EU citizens, trust in media and the EU and other related issues. The report was published in March 2019 and it reveals some interesting facts about the European citizens’ opinions.
When asked if they trust the European Union, the results are quite surprising. Only 37% of the people that were asked responded that they tend to trust the European Union, whilst 54% tend not to trust it and 9% responded that they do not know.
Furthermore, when analysing the responses age wise, only 48% of the people aged between 15-24 tend to trust the European Union, and this number decreases as the age increases.
When comparing data from the level of education of the responders, only 25% of the people aged 15 tend to trust it, 31% of the people aged between 16-19 tend to trust it, whilst 54% of the people still studying tend to trust.
2 Ibid
3 Kris Grimonprez, The European Union and Education for Democratic Citizenship, Nomos, Page 31
4 Special Eurobarometer 486, European ins 2019, Survey requested by the European Commission,
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The conclusion that may be drawn from the data presented above is that younger people and people still studying tend to put more trust into the European Union, whilst those older and not studying, tend to trust it less.
The percentage of those that trust the European Union may be increased through education at an earlier stage than higher education, at the age of 15.
When asked if they understand how the European Union works, the results are quite positive but leave room for improvement. Out of the people interviewed, 59% stated that they understand how the European Union works, whilst 38% with the statement. Although the majority of people responded in a positive way, a worrying percentage of people do not understand how the European Union works.
When asked to respond with true or false to the statement related to the objective knowledge of the European Parliament elections, the numbers reveal interesting facts. The statement presented to the people is “the members of the European Parliament are directly elected by the citizens of each member state”. Out of the people that were interviewed, 58% responded correctly, 26% responded wrong, whilst 16% responded that they do not know.
Taking into consideration that the European Parliament elections are one of the opportunities for the EU citizens to be actively involved and use their democratic rights, the result could be improved.
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Article 6 TFEU: competence to support, coordinate or supplement
Division of competences
The principle of subsidiarity, as prescribed by article 5(3), provides that the Union can act in the areas of shared competence and exclusive of the Member States “only if and in so far” as the objectives cannot be sufficiently achieved by the states and can be better achieved at Union level. Therefore, where the Union considers that its goals cannot be adequately fulfilled, it may intervene and assist the Member States’ actions at “Union level”.
According to the Treaties, the European Union functions on the basis of attributed competence5; this principle is provided by articles 4 and 5 of the Treaty of the European Union.
Article 4 TEU provides that where the Union is not competent, the Member states may act. Furthermore, the Union is obliged to respect the national identities of the Member States “inherent in their fundamental structures, political and constitutional”.
On the basis of principle of conferral provided by article 5(2) TEU ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out there in’. The competences that do not fall under the Union’s powers, remain with Member States. Additionally, when using its conferred competences, the Union must act in accordance with the principle of subsidiarity and proportionality.
Furthermore, the principle of proportionality provides that the Union’s actions should not “exceed what is necessary to achieve the objectives of the Treaties”.
The division of competences between the Union the Member states is classified into exclusive competence of the Union over a number of fields, shared competence between the Member states and the Union and exclusive competence of Member states. Each of the competences may be found in the treaties and each comes with its own set of issues.
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The category of complementary competences is regulated by article 6 of the Treaty on the Functioning of the European Union provides that the Union is competent to carry out actions to ‘support, coordinate and supplement’ the actions of the member states in a list of 7 areas. It appears as if the list is exhaustive, taking into consideration the residual character of the category of shared competence6.
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Limits to article 6 TFEU
The limits that the Union must take into consideration vary from each of the fields mentioned in article 6, but the Union is usually bound to promote the improvement of public health7, improvement of the knowledge and culture8, development of high-quality education9 and so on
and so forth.
Whilst the Union is entitled to taking ‘incentive measures’10 through the ordinary legislative
procedure or recommendations11 by the Council, on a proposal from the Commission, as to attain the objectives set out, it is not allowed to harmonize law in the said areas. Consequently, despite the fact that the EU is prohibited from harmonizing the law in these areas, it can pass legally binding acts based on the specific provisions of the areas12. By the prohibition of harmonisation, it is understood that the EU may not implement a single legal act that aims at removing divergent rules of national law across the member states13.
As Schutze14 puts it, there are two points of view when it comes to the limits on harmonization: a rigid perspective that excludes harmonisation all together and a flexible point of view that prescribes that some incentive measures may have the indirect effect of harmonisation, but may not be meant to conflict with the aforementioned prohibition.
In the Case of Spain versus Council, the Court found that the indirect harmonization that occurred in the field of health, in the attempt to remove the obstacles to free movement, is justified. This may be seen as a case of indirect harmonization, with a justifiable cause, preventing the creation of obstacles to free movement of medicinal products within the Union15.
7 Article 168, TFEU 8 Article 167 TFEU 9 Article 165 TFEU 10 Article 165(4) TFEU 11 Article 167(5) TFEU 12 Paul Craig, page 177
13 Parliament, E., 2017. Briefing - The EU as a community of law, page 3 14 European Constitutional Law, Robert Schutze, page 243
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Incentive measures
In this chapter I will present some of the measures and actions taken at European level within the field of education. The structure that I plan to follow concerns (A) soft law instruments and the role they play in the political and legal European scene, (B) the treaty provisions on the basis of which the EU may act within the education field, (C) recommendations released by the Council in the attempt to support the Member States’ actions and policies and, lastly, (D) I will present the Erasmus+ programme and the impact it has across the Union, and beyond, when it comes to education, culture and diversity.
A. Soft law
According to article 288 TFEU, recommendations do not have any binding force as they are considered instruments of soft law, but this description appears to be reductive. When it comes to the soft law doctrine, there are multiple opinions as to the effects such instruments have.
For instance, it is believed that soft law instruments sometimes prove to implement policies more effectively than legally binding acts16. The reasoning behind such a statement stands in the fact that individuals (or in our case member states) feel as if it is their own choice to apply or not the non-binding rules in question17.
A useful explanation and opinion on the matter of soft law instruments may be found in the case law of the Court. In its opinion on a case18 the advocate general mentions the extent of the effects
of the soft law instruments. He says that “although the Court has held that the provisions of such acts of ‘soft law’ are, by virtue of the duty of sincere cooperation enshrined in Article 4(3) TEU, to be taken into due account by the Member States’ authorities, that duty cannot be understood as making those rules binding”.
16 Stephane Nahrat, F. V., 2009. Why do we obey soft law?. In: A. Fluckiger, ed. Redescovering public law and
public administration in comparative policy analysis: a tribute to Peter Knoepfel. Lausanne: Presses polytechniques
romandes, pp. 45
17 Ibid
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Thus, although the instruments that the Commission has in place, to promote and support the Member States in their actions, have no binding effect they are to be taken into consideration on the basis of sincere cooperation. Therefore, by fully ignoring them, the Member States may find themselves in a position of violating the principle of sincere cooperation enshrined in the Treaties.
In an opinion on a case19, advocate general Kokott states that if the Member States would ignore the Commission’s notice, they would undermine its position and the principle of sincere cooperation. Once again, it is revealed that although it is exercising its powers through soft law instruments, the Commission’s effort should be taken into account.
In its decision in the Grimaldi case20 the Court states that recommendations cannot “be regarded as having no legal effect” and that national courts have the duty to take them into consideration. Therefore, throughout the years the Court as affirmed and reaffirmed that although recommendations, notices and other soft law instruments are not legally binding upon the member states, they should be taken into consideration. The extent that the obligation to take due account of them should go is in so far as the member states do not infringe the principle of sincere cooperation provided by the treaties.
Giving the fact that the Union’s efforts to support and supplement the Member states’ actions within the education field do not have any real and legal consequences, what is there to be done when a member state bluntly disregards the Union’s recommendations in the field of education? Can a member state be held responsible in any way for not adequately educating its citizens on matters related to the European dimension and democratic citizenship?
19 Case C-226/11 Expedia 20 Case C-366/88, paragraph 18
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To the present day, it appears that there are no available remedies to be enacted in the case of ignorance on the part of the member states. On the bright side, soft law proves to be more efficient at promoting change rather than uniformity and harmonization the member states21.
Taking into consideration all that was mentioned above, we come to the conclusion that the EU cannot go around the Treaties and avoid its restrictions towards adopting hard law in the areas that it is meant to merely support, coordinate and supplement. This may fall especially hard on the citizens of the Member States that do not encounter EU law, in the sense that they settle in their Member States and do not get to enjoy the full European citizenship by crossing the borders. We can only hope that the Member States will take due account of the Union’s recommendations and notices and improve the quality of education when it comes to preparing the citizens of tomorrow’s Europe – as there are no punishable consequences towards their lack of action.
B. Treaty provisions
As provided by article 6 TFEU, the Union “shall have competence to support, coordinate and supplement” Member States’ actions when it comes to a variety of fields, amongst which we can find education, as well. But, the legal basis for the actions taken by the Union in the field of education and vocational training are found in article 165 TFEU.
Article 165 TFEU provides the Union’s duty to make its contribution to the progress of quality education by “encouraging cooperation between Member States”. The article further prescribes that “if necessary” it can support and supplement Member States’ actions. We can, thus, deduct that in accordance with the principle of proportionality and its competence to support the actions of the Member States to attain the objectives in the Treaties, the Union can carry out actions in doing so.
21 Cristina Sin, O. T. (2018). European higher education and the internal market: tensions between European policy
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The Treaties provide what the EU’s actions should be aimed at, and that includes the development of the European Union dimension and the encouragement of young people to participate in the democratic life of the Union, as prescribed by paragraph 2 of article 165 TFEU.
Therefore, although the Member States are the ones mainly responsible for the development and implementation of the curriculum, the Union has the ability to intervene where it deems necessary and in a manner that excludes harmonisation of laws and regulations in the Member States; paragraph 4 of article 165 prohibits harmonisation of laws in the field of education.
Although, the Union may act in the field of education but in so much as it does not harmonise the laws and regulations of the Member states, the citizens’ initiative More Than Education22, approved by the Commission, calls upon the commission to take “more incentive measures…to support member states” in preparing the citizens of tomorrow, the members of a democratic society. What does that say about the Union’s limits when acting upon the education field? Somehow its actions do not enjoy a lot of flexibility, as the Member States want to protect their national identities and cultural heritage, but it is the citizens of the Member States that urge the Union to act and to help the Member States. We might see this as a call for help, a need to be educated as the citizens feel they are not taught enough and are not provided with the necessary tools to become fully European citizens. Although the citizens’ initiative was not successful in the sense that it did not acquire the necessary signatures, it was registered by the Commission. Still, its unsuccess should not be seen as a failure or as a sign that the citizens are not interested, but more as an additional piece of evidence that citizens are not being properly informed and simply do not know about the existence of such emerging trends.
C. Recommendations
The preamble of TFEU provides the determination of the Member States to promote the highest level of knowledge for their people, but how can that be when a large percentage of the citizens
22 Union, E., 2016. More than education. [Online] Available at:
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still do not feel like they know how the EU works? Or how the process of the European parliament elections is conducted?
A Council recommendation on promoting values, inclusive education, and the European dimension of teaching, taken in 201823 is a support measure that has as a basis article 165 and 166 TFEU. This initiative is part of a framework that has the purpose of improving key competences and to, as the press release of the Commission puts it, “promote common values and pupils’ awareness of the functioning of the Europe Union”.
Alongside the recommendation of the Council, some other measures were taken, such as another Council Recommendation on key competences for lifelong learning as well as a digital education plan. This framework that aims to improve the quality of education and increase the key competences of the citizens is guided24 by the Commission’s communication “Strengthening European Identity through Education and Culture’.
The 2018 Council Recommendation on promoting common values says that “Member States should” increase the sharing of common values from an early age and at all levels, and also to make effective use of existing tools to promote citizenship education.
Another worth mentioning action is the resolution25 on learning about the European Union at
school. Some interesting points are made in this document, such as the fact that the main role of education is to “form fully aware citizens” and that inadequate and insufficient knowledge “contribute to the perception of a democratic deficit” and may lead to scepticism towards the EU in the member states.
It is safe to say that the Union’s efforts towards educating its citizens are quite visible and remarkable. Although it is quite restricted by the treaties in the sense it must respect that the 23 COUNCIL RECOMMENDATION of 22 May 2018 on promoting common values, inclusive education, and the
European dimension of teaching (2018/C 195/01)
24 Commission, E., 2017. Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the regions - Strengthening European identity through education and culture, Gothenburg: European Commission.
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Member States are “fully responsible” for their education policies, it still puts a great effort into promoting the European dimension of education and shows the benefits that are bound to come from implementing such progressive and common policies. A unitary and informed view on the Union leads the path to educated and responsible citizens of tomorrow and the day after tomorrow’s society.
The question that comes to mind, when taking into consideration the importance of educating the citizens and shaping them into responsible and critical members of society, is what are the consequences of not following the Union’s recommendations or not making use of the tools provided by it? The issue in question is that the Union gives away recommendations and spends time and resources in attempting to advise the Member States, but it seems as if all is a waste if the states do not take them into consideration.
D. Erasmus+ programme
A well-known action of the EU taken within its supporting competence, is the Erasmus programme that allows students to study abroad for a period of time. Giving the fact that the area of education has been made somehow untouchable by the Member States as it is highly connected to their national identity26.
Furthermore, the programme has been adopted and implemented through the means of regulations which are legally binding in the member states. It is a very obvious incentive measure adopted by the Union, in accordance with the ordinary legislative procedure, as provided by article 165. Although shy and restricted in the field of education, and mostly releasing recommendations that have no binding force, the Union implemented the Erasmus+ programme through two regulations. We might see this as a daring and ambitious move towards a more involved Union.
26 Cuyvers, A., 2017. The Legal Framework of the EU. In: East African Community Law - Institutional, Substantive
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As provided by the 2018 Erasmus+ programme guide, the general purpose of it is contribution towards the achievement of a number objectives provided by the Europe 2020 strategy, the strategic framework for European cooperation and education and training, sustainable development of partner countries in the field of higher education, the promotion of European values in accordance with Article 2 of the TFEU27, European cooperation in the youth field and the development of the European dimension in sport. The objectives provided by the guide are ambitious and they seem to tackle multiple issues that the education field faces within the European Union. Through this initiative, the EU suggests that its actions to support the Member States seek to go deeper and deeper.
I believe that such a complex procedure, like the Erasmus+ programme, it is an incentive that has the ability to promote a lot of good changes even within the national educational policies. It seems as if the EU is increasing its influence on the Member states internal policies, without them even realizing it. By shaping tomorrow’s citizens and promoting active European citizenship within the youth will only have long term benefits.
The main EU institutions that deal with the implementation of the Erasmus+ programme are the European Commission and the national agencies. The European Commission is the institution that bears most of the responsibility of the programme, according to the Erasmus+ programme guide28; it manages the budget and sets the targets and criteria, it handles monitorisation and
guidance and the general implementation. However, the actual implementation is managed by the national agencies, as the European Commission entrusts them with the budget implementation. The reasoning behind the delegation of tasks to the national agencies is that in this manner the programme is being adapted to the different national education systems involved in the programme. The budget set for the period of 2014-2020 is of approximately 15 billion EUR. Although, the programme is a measure taken within its support competences, the Union
27 The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
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invested a large sum and it is set to triple its investment for the period of 2021-2027 according to a press release delivered by the European Parliament29.
The eligible countries that may take part in the programme are the member states of the European Union, seven other non-EU countries and a number of partner countries. The relevant piece information lays in the fact that all of the Member States are involved in the programme, therefore we face an indirect coordination of their higher educational policies in order to facilitate participation the programme.
The relevant legal bases30 for the Erasmus programme consist of regulation 1288/2013 and regulation 1295/2013 that were also adopted on the basis of article 165. As such, the regulations are binding in their entirety and directly applicable on the territory of the Union31.
The programme is structured into three key actions that consist of mobility of individuals, cooperation for innovation and the exchange of good practices and support for policy reform32. The first key action seeks to support the mobility of students and teachers, as well, by offering them the opportunity to undertake a learning and/or professional experience in another country. Besides the opportunity to study abroad for a limited period of time, this key action offers the possibility of benefiting from a scholarship or to get a loan to do a master’s programme.
The second key action is comprised of transnational strategic partnerships between the institutions and organisations involved in education, training and youth and other related fields that aim to exchange experience and know-hows. Basically, the second key action is concerned with cooperation between the institutions and organisations in fields related to education and the exchange of practices and experiences of the learners and teachers within the Erasmus+ programme in order to promote the improvement of the educational experience.
29 Parliament, E., 2019. European Parliament press room. [Online] Available at:
https://www.europarl.europa.eu/news/en/press-room/20190321IPR32121/erasmus-2021-2027-more-people-to-experience-learning-exchanges-in-europe
30 Commission, E., n.d. European Commission. [Online] Available at:
https://ec.europa.eu/programmes/erasmus-plus/projects/legal-issues_en_en
31 Article 288, TFEU
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Additionally, the “sector skills alliances”33 are aimed at developing and implementing “joint
vocational training curricula, programmes and teaching and training methodologies”34; the words used in the Erasmus+ guide suggest that the programme aims at uniformizing the curricula of the higher educational institutions involved in the process. This piece of information indicates that the institutions coordinate their curricula in order to accommodate the implementation of the programme. Seeing that all the member states of the EU are part of the programme, they voluntarily and indirectly agree to uniformize their curricula. Yet another instrument of soft law used by the EU that promotes unity and uniformity across the EU. Although, it is the Member States’ choice to do so, I think it is quite impressive how far the EU has come over the years as it became more and more influential in the field of education across the member states.
The third and last key action is focused on policy reform. In other words, the parties involved are encouraged to innovate their education policies based on the results that they gather from monitoring the results of the programme. Furthermore, all the actors involved, including public authorities, aim to facilitate the implementation of European policy tools such as recognition of skills and qualifications as well as promoting the attainment of the European policy agendas in the field of education.
A mere reading of the actions and objectives that the programme inquires reveals that the development and improvement of education through the Erasmus+ programme is based on the European policies and agendas. The programme is a tool used to implement and attain the EU objectives.
33 Ibid 32 34 Ibid 32
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The link between internal market and education
As illustrated in the previous chapter, when it comes to primary and secondary school educational policies, the Union has little to no powers in adopting hard law legislation on the matter. Notwithstanding the fact that it lacks competence on the matter, the Union has made considerable efforts towards influencing the Member States in Europeanising national educational policies through soft law instruments. Section A will briefly highlight the most worth noting aspects of the Bologna process, whilst section B will attempt to provide a solution to the collision that seems to appear when educational issues and internal market meet. Additionally, the current chapter will focus on higher education, rather than primary and secondary education.
A. Bologna process
Article 165 TFEU prohibits harmonisation of laws and regulations of the Member States and provides that the EU should not obstruct Member States’ full responsibility over the education policies they choose to adopt in order to organize the content of teaching.
The Commission is a full member of the Bologna Follow-up Group and its board, which supports the implementation of the decisions of the Bologna Ministerial Conferences. It appears as if the Commission, although being constrained by a narrow margin of involvement in the educational policies of the member states, has found a way to stay involved and increase its influence over the matter.
The Bologna system has an intergovernmental and international character, as it exists beyond the borders of the European Union. Some concerns may be raised as to the legitimacy of it, as it if runs contrary to the objectives set by the Union, the Member States may find themselves in the situation of infringing the provisions of the Treaties35. Doctrine36 mentions issues of weakening the European legal system and restraining the scope of EU law, as such. However, the Court
35 Article 258 TFEU
36 I. Schwartz, ‘Article 235 and Law-Making Powers in the European Community’, (1978) 27 International and
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stated that where the Union does not reside exclusive competence, the Member States “are not precluded from exercising their competence in that regard collectively”37.
The Bologna Process, starting with the Sorbonne and Bologna Declarations, was the response of national governments to the challenges arising from the mobility of European students and graduates38. Now the process has been implemented in 48 states which set the context for the European Higher Education Area. Bologna Process is an initiative of European governments that go even outside the European Union39.
The higher education institutions, seen as production instruments for knowledge are becoming more and more valuable for their intellectual capital, as it is seen to be an essential factor of production and a means of economic growth in the globalized knowledge economy40. Through universities students get a more in-depth level of education and have the opportunity to go beyond the compulsory curricula they had to go through in primary and secondary school education. This type of specialized education prepares students for their future careers but, more importantly, for the ever emerging and progress-oriented job market.
As for the Bologna Process, in its brochure41 on the EU’s support in the Bologna process, the
Commission makes some notable suggestions towards the states that are part of the Bologna systems. It talks about how over the years, the members of the Bologna Process have launched various initiatives to improve quality assurance in higher education. The latest framework for such is the Standards and Guidelines for Quality Assurance in the European Higher Education Area (ESG)1242 that are based on the principle that the responsibility for quality assurance in higher education lies with each institution itself and that quality assurance is usually covered within national legislation. The revised version of the guidelines aims at ensuring a higher level
37 In Joined Cases C-181/91 and C-248/91, paragraph 16
38 European Commission note on The Bologna Process and the European Higher Education Area
39 Cristina Sin, O. T. (2018). European higher education and the internal market: tensions between European policy
and national sovereignty. Palgrave Macmillan., page 6
40 Varghese, N. (2013, December). Globalization and higher education: Changing trends in cross border education.
Analytical Reports in International Education, vol.5, pp. 7-44.
41 The EU in support of the Bologna process, Luxembourg: Publications Office of the European Union, 2018 42 2015. Standards and Guidelines for Quality Assurance in the European Higher Education (ESG), Brussels,
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of accountability when it comes to quality assurance. Despite these significant achievements, some remaining areas require further action. In particular, some countries need to do more to involve students in quality assurance processes. Furthermore, institutions in a number of countries are still restricted to using only national quality assurance agencies for their external evaluations. The new Bologna peer support process could be instrumental in tackling these shortcomings.
The Standards and Guidelines for Quality Assurance in the European Higher Education Area set a common framework ensuring accountability at European, national and institutional level. Despite the fact that, by reading the standards and guidelines, the reader might get a sense of complex organisation and thorough monitoring systems towards the institutions, there are no actual remedies for failure to meet the standards. It is assuring the public that feedback is being sent towards the institutions as regards to what they can improve and how should they do it and their progress is, indeed, being monitored but there is no mention in the guidelines as to the extent the consequences might go.
It is said that the Bologna system is one of the best examples of the powerful effects soft law can be proved to have without implying any legally binding obligations43. At the risk of portraying a
reductive picture of the process, it seems as the main objectives of the Bologna Process tend to lean towards an internationalization of the national higher education policies44. By criticising
some of the member states’ reluctant attitude towards external supervision over the quality of the measures, it reveals that the Union is inclined towards a uniformization of the measures throughout the states in order to improve the quality of teaching and education, altogether.
B. Internal market connection
The Union states that by ensuring the provision of effective education, it can better align the skills of the workforce with the needs of the EU economy.
43 Stephane Nahrat, F. V., 2009. Why do we obey soft law?. In: A. Fluckiger, ed. Redescovering public law and
public administration in comparative policy analysis: a tribute to Peter Knoepfel. Lausanne: Presses polytechniques
romandes, pp. 45
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The claim being made45 is that the EU needs a skilled workforce to achieve maximal
productivity and continued innovation in today's increasingly globalised economy. Effective education and training policies can also enhance personal development, encourage active citizenship and strengthen equity, as well as promoting social inclusion and integration.
The EU's strategic framework for Education and Training stresses that higher education systems are an investment in economic growth and that public spending in higher education should be protected.
The Bologna process is aimed at making students more likely to be employed and to make universities to fall in line with what the business’ needs. An argument in line with the reasoning above might be the fact that a lot of companies conclude partnerships with universities, and they give students numerous internship and job opportunities, during and post studies. Furthermore, the Bologna process includes 20 states that are not part of EU, therefore functioning outside of the Union’s framework. It has not legal enforceability, as it is an instrument of soft law, but it is still invoked by national governments as a legal basis when adopting and changing educational policies. As resilient as the member states are when it comes to the Union having incentives in the educational area, as willing as they seem to voluntarily obey a process with no legal basis and no repercussions46.
In its 2006 communication47 to the Council and the European Parliament, the Commission makes some interesting and striking statements in regard to its views on universities and the future of Europe. It states that universities have the potential to play a vital role in the Lisbon objective to equip Europe with the skills and competences necessary to succeed in a globalised, knowledge-based economy. In order to overcome persistent mismatches between graduate qualifications and the needs of the labour market, university programmes should be structured to enhance directly
45 Commission note on effective and efficient higher education
46 Garben, S. (2010). The Bologna Process and the Lisbon Strategy: Commercialisation of Higher Education
Through the Back Door? Croatian Yearbook of European Law and Policy, 209–230
47 Communication from the Commission to the Council and European Parliament. Delivering on the modernisation
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the employability of graduates and to offer broad support to the workforce more generally.
Furthermore, the Commission adds that universities are essential for Europe’s future and for the successful transition to a knowledge-based economy and society. Additionally, it mentions the fact itself is not a ‘direct actor’ in this modernisation process, but it can have a ‘catalytic’ role. Since then, although aware of the limited actions it has available, the Commission recognized the vital role education plays in all aspects of the future and made an indirect promise that it will help accelerate and facilitate the process of modernisation.
The above stated objectives indicate an economic oriented reform in order to make Europe the most competitive economy, as it researches, and higher education prove to be vital for economic growth and performance48.
In a more recent communication49, the Commission stated that institutions need to build a progressive culture of innovation and entrepreneurship. New ideas and discoveries come from curiosity, creativity and initiative. All forms of higher learning should aim to equip students with the ability to understand new concepts, think critically and creatively and act entrepreneurially to develop and apply new ideas.
The EU has been entrusted with competences on a number of areas in order to attain specific policy objectives, such as the creation of the common market, consequently the free movement of persons; such actions may call for changes in all various sectors, education being one of them.50 Consequently, many policy areas that were not on the list of European Union’s interests have been affected by implementing its functional powers, despite the lack of explicit legal competence.
48 Peter Maassen, J. P. (2007). University Dynamics and European Integration. Springer, page 7
49 Communication from the Commission to the European Parliament, the Council and the European Economic and
Social Committee and the Committee of Regions
50 Garben, S. (2010). The Bologna Process and the Lisbon Strategy: Commercialisation of Higher Education
24
The ECJ stated that despite the fact that the education area is not part of the Union’s competences “it does not follow that the exercise of powers transferred to the Community is in some way limited if it is of such a nature as to affect the measures taken in the execution of a policy such as that of education and training”51.
The Court has been accused of judicial activism, for a number of times, when education policies clashed with the four freedoms that the internal market entails. Article 26 TFEU defines the internal market as being an “area without internal frontiers, in which the free movement of goods, persons, services and capital is ensured”.
On a case involving private schools, the Court stated that “courses given by educational establishments essentially financed by private funds, notably by students and their parents, constitute services within the meaning of Article 50 EC, since the aim of those establishments is to offer a service for remuneration”52.
On another case, the Court stated that if it fulfils the necessary conditions, an educational institution may qualify as a service provider and thus falling under the scope of article 56 TFEU; the Court also recognized the freedom of establishment of certain institutions. According to settled case-law, the concept of ‘services’ implies that they are normally provided with remuneration53 and the fundamental character of remuneration “lies in the fat that it constitutes
consideration for the service in question” and that it is the result of an agreement between the provider and the receiver of the service54.
The most interesting inquiry that the Court makes is towards the Italian government’s justification as to the measure taken claiming that is justified by “the need to ensure high standards of university education”. In response, the Court states that although the aim of ensuring the standards above may be a legitimate reason to justify restrictions on fundamental freedoms,
51 Case 9/74 Donato Casagrande v Landeshauptstadt München
52 Case C-76/05 Schwarz and Gootjes-Schwarz v Finanzamt Bergisch Gladbach, paragraph 40 53 Case C-355/00 Freskot, paragraph 54 and 55
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“such restrictions must be suitable for securing the attainment of the objective they pursue and must not go beyond what is necessary”55.
I find the Court’s statement to be particularly interesting as it narrows the Member State’s wide margin of discretion when it comes to justifiability on the basis of educational policies. It appears that the principle of proportionality must be taken into account as to not to restrict the fundamental freedoms provided in the treaties, revealing a rigid attitude of the Court. A similar use of the principle of proportionality has been depicted in the Jundt case56, where the Court found that the justifiable objective, invoked by Germany (promoting teaching and research) to restrict freedom of services provided to beneficiaries in other Member States. By neglecting the aim of the measure taken in comparison with the effect, Germany did not take due account of the proportionality principle.
The Gravier decision delivered by the Court in 1985 concerns the case of a French student challenged the enrolment fee imposed by the Belgian government only on students that did not fulfil the condition of Belgian citizenship. In its judgement, the Court makes a number of interesting remarks.
First of all, the Court places vocational training as being a specific type of education57. Secondly,
the Court connects vocational training with Community law, stating that although education is a matter of the member states, it is not completely out of the scope of the treaties. And, lastly, it mentions that “it is an indispensable element” when it comes to the Community’s activities within the attainment of the free movement of persons objective. Basically, allowing students to move freely within the Community and having the freedom of choosing the country that they want to study in58, it furthers prepares them for the labour market in the chosen country. Freedom of movement of persons is obviously connected to education as education is a means of preparing tomorrow’s workers.
55 Case C-153/02 Valentina Neri v European School of Economics, paragraph 45 56 Case C-281/06 Jundt v Finanzambt, paragraph 58
57 Case C-293/83, paragraph 18 58 Case C-293/83, paragraph 24
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Conclusions
From the facts gathered above, it remains unclear whether the Union has enough power to act in a field that is neither within its exclusive competence, nor within the shared competence area, such as education policies. As proven, along the years the Union has put a great deal of effort into promoting European citizenship and European democracy, but the Member States have the final say in what can be implemented and the manner that it can be implemented in. Moreover, significant progress has been made when it comes to the discretion the EU holds within the area of education, as it got wider and wider every year.
I believe that the Court has also proven to be an insightful actor when it comes to the clash between the non-static European students and the internal market, as to the extent that the Member States’ margin of discretion might affect the fundamental freedoms. Being part of the European Union, being a European citizen implies the fact that you get to make the most out of all the benefits the EU membership has to offer.
Additionally, the Bologna process method revealed that Member States are not as strict as initially predicted in voluntarily renouncing their responsibility in the educational area. It is apparent that the Member States show reluctance towards the Union; it is consisting of a complex and well-founded organizational structure; it also has a number of remedies and consequences for those that do not meet the standards or do not obey to the rules. Giving into a ‘soft law’ like procedure that lacks a system of accountability means less restrictions and obligations.
However, the Erasmus programme is a successful initiative that has been in place for over 30 years. It has gone through a lot of changes over the years, from 3000 participants in 198759, to over 800 000 in 201860, the Erasmus programme has influenced a lot of students and teachers, altogether. This inter-governmental and inter-institutional experiential learning programme 59 Unit B1 ‘Higher education’, D.-G. f. E. a. C., 2015. Erasmus - Facts, Figures&Trends, Brussels: European
Commission
60 Directorate-General for Education, Y. S. a. C., 2018. Annex - Erasmus+ annual report , s.l.: European
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demonstrates that the Union, despite its restrictions, has some options when it comes to unifying educational systems throughout the Member States. It is likely that over the years the participant countries, especially those part of the Union, have changed and adapted their education policies in order to be more like those of the participant countries, without them even realising that their uniformizing their policies, despite their unique cultures and national identities.
As for what the future holds in the area of Union’s complementary competences, we can only hope that the Union will continue with its efforts towards a common European education area. Perhaps, the Member States will arrive at the conclusion that an adequately educated population leads to a stronger and more united community.
28
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