Hungary must treat domestic and foreign higher education institutions equally and, by requiring restrictive provisions, it is in breach of World Trade Organisation (WTO) and General Agreement on Trade in Services (GATS) rules in particular.
This is the message passed on Thursday 5 March by the Advocate General of the Court of Justice of the European Union, Juliane Kokott, in her much-awaited conclusions on the dispute between the European Commission and Budapest over a Hungarian law that is perceived to be directly directed against Georges Soros and the Central European University (CEU).
In these conclusions, the lawyer thus emphasises that the requirements introduced in Hungary in 2017 concerning the need for an international convention with the State of origin for the effective exercise of an educational activity on Hungarian territory are incompatible with EU law and WTO rules.
In 2017, the Hungarian law on higher education was amended to the effect that higher education institutions from States outside the European Economic Area (EEA) may only operate in Hungary if an international agreement has been concluded between Hungary and their State of origin. In addition, all foreign higher education institutions wishing to offer higher education in Hungary must also offer it in their home country.
The Central European University (CEU), founded in accordance with the law of the American state of New York and supported by the Hungarian-American businessman George Soros, was at that time the only active higher education institution in Hungary that did not meet the new requirements.
As the government of Viktor Orbán made the continuation of CEU activities in Budapest conditional on the signing of such an agreement with the United States, the CEU was forced to move its activities to Vienna in the autumn of 2018.
At the end of 2017, the Commission had brought an action for failure to fulfil obligations against Hungary (see EUROPE 11924/24).
In her Opinion, Advocate General Juliane Kokott therefore proposes that the Court should uphold that action and considers that the requirement of an international agreement with the State of origin infringes the principle of national treatment (the principle that domestic and foreign service providers must be treated equally) under the General Agreement on Trade in Services (GATS).
Authorised by the European Union, WTO law is an integral part of EU law. This would therefore correspond “to the Union's extended competence in the field of trade policy”, according to Ms Kokott.
The requirement to conclude an international convention with the State of origin would furthermore violate the Charter of Fundamental Rights of the European Union by disproportionately restricting the freedom to establish and operate educational establishments as well as the freedom of science.
See the conclusions: https://bit.ly/2TqSeCe (Original version in French by Solenn Paulic)