Interim Conclusion: The Location of HEIs in EU Policy

While originally not featuring in primary law, policies on education and research have developed at the supranational level. The main (regulatory) competences, however, still lie with the Member States. Yet, it has already been shown that functional spill-over from the free movement provisions can interfere with this division of competences as it has led to the need for secondary legislation on the professional recognition of diplomas. Furthermore, coordination beyond what has been achieved within these policy areas seemed necessary, but the Member States opted for the OMC and the beyond-EU Bologna Process rather than extending primary law competences or using existing competences to their full potential. Only with the Treaty of Lisbon has the competence base for R&D been slightly strengthened. However, that does not appear to have led to extensive legislation realising significant regulatory changes so far.

The Lisbon/Europe 2020 Strategy and the Bologna Process are soft law and thus not legally binding. Their alleged bottom-up nature and involvement of various stakeholders, their flexibility and the possibility of avoiding the supranational frame and thereby potentially losing control are considered as advantages.[1] However, there are also negative sides to the chosen modes of cooperation. The non-binding nature enables Member States to ‘opt-out’ when it comes to actually achieving the targets, as can be seen especially with regard to the Lisbon/Europe 2020 Strategy. On the other hand, research shows that soft law can nevertheless create perceived binding effects.[2] Indeed, many have described the Bologna Process and the Lisbon/Europe 2020 Strategy as developing a certain inevitability and, in addition, as intertwined and as reinforcing commodification.[3] In particular, the Bologna Process has led to significant changes in European higher education. It has done so despite being unpopular with stakeholders such as students and academics who, inter alia, criticise the, in their eyes, too inflexible three cycle structure and the focus on employability. It has also been felt that the process would lead to fierce competition among students, be too paternalistic and would not fit with every subject.[4] In the face of this, and considering the soft law nature as well as the fact that the Bologna Process only provides guidelines (e.g. the length of three years of undergraduate study is a minimum requirement not a fixed term), the question arises why the national reforms are implemented in this way. Garben has argued in this respect that the Bologna Process serves as ‘an efficient smokescreen for governments to agree on unpopular reforms’[5] while advertising them as binding and thus putting implementation pressure on national parliaments. Furthermore, despite these approaches being advertised as bottom-up alternatives to hard law, only certain actors participate. In particular, since the European

Parliament, the CJEU and the general public are not involved, this could be regarded as causing democratic concerns.[6]

These democratic concerns, the commodification trends apparent in the European policies which endanger the traditional non-economic mission of HEIs (as discussed in Chap. 1, Sect. 1.3.1) as well as the confusing jungle of EU law, EU soft law and international instruments which appear as mainly fragmented sectoral policies lacking a clear mission or horizontal approach (though somewhat less so for R&D)[7] make one wonder whether a coherent supranational policy would not be the better choice for HEIs in Europe.[8] However, the negative perceptions of the soft law measures and the EU in general might, as explained above in Chap. 1 (Sect. 1.3.4), make further integration into the EU hard law frame momentarily unlikely. At the same time, HEIs are not immune to the forces of other area of (directly applicable) EU law which can lead to spill-over.

  • [1] See Begg 2008, p. 430 seq (especially 433), Stefan 2012 p. 8.
  • [2] Stefan 2012 p. 15 seq. She also explores how under specific circumstances soft law can createlegal effects, but this is of less concern to the areas explored here.
  • [3] E.g. Novoa 2002; Neave and Maassen 2007; Ravinet 2008; Croche 2009; Gornitzka 2010;Corbett 2012.
  • [4] See, for example, Banscherus et al. 2009, p. 11 seq with further references on criticism inGermany, Cardoso et al. 2008 on criticism regarding the degree structure, Hummer 2005, p. 78seq on problems in Austria, Cippitani and Gatt 2009, p. 391 on legal and practical problems witha focus on Italy, Garben 2012, p. 20 seq with further references on student and teacher protests.
  • [5] Garben 2010, p. 206.
  • [6] See further Garben 2010, p. 205 seq; Garben 2011, p. 210 seq. See also Walkenhorst 2008,p. 579 seq, Maassen and Musselin 2009, p. 9 seq; Stefan 2012 p. 8. Garben also explores thequestion of whether the Bologna Process could be seen as depriving the Union of its power andcontradicting Article 4(3) TEU and Article 5 TEU and therefore it could be regarded as illegal for Member States to undertake action collectively instead of using the EU frame (Garben2010, p. 198 seq; Garben 2011, p. 203). She concludes, though, that while the course taken wasnot exactly in the spirit of cooperation, it would probably not amount to a breach of EU law.Considering C-370/12 Pringle (Judgment of 27 November 2012, EU:C:2012:756) it also seemsunlikely that the Court would follow such an argumentation, though the judgment was, of course,related to the specific circumstances of the case.
  • [7] Chou and Gornitzka 2014; Chou and Ulnicane 2015; Ulnicane 2015.
  • [8] As will be seen below in Chap. 6, such policy involving the European Parliament and consulting stakeholders and the general public could lead away from the tendency towards commodification and create exemptions from the more economic provisions of EU law.
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