Slovenian educators and students are ringing the alarm, after the Commission initiated a legal case against the country’s education legislation, which ‘could undermine education quality’ and ‘set a dangerous precedent in the light of EU-US trade deal negotiations.
Criticism is mounting in Slovenia, one of the Union’s smallest member states, after the European Commission opened an infringement procedure against the country’s higher education act.
The infringement case was opened in 2011, when authorities in Ljubljana were informed by the Director General Internal Market (DG MARKT) that their “Higher Education Act” (HEA) was not in line with the EU’s “Services Directive” and a number of treaty articles pertaining to market freedoms, such as the freedom to provide services, as well as a number of ECJ rulings.
The controversy broke around provisions of the law regarding accreditation of transnational higher education institutions, which, according to Slovenian law, need to go through an accreditation and registration process that the Commission sees as being “incompatible with freedom of establishment and freedom to provide services”, EurActiv has learned from a leak of the reasoned opinion, in Slovenian.
According to Klemen Miklavič, a researcher on education policy at the University of Ljubljana, the procedure was triggered after a UK education provider granted a franchise to a private education institution in Slovenia, prompting the authorities to refuse to recognise the diplomas.
“Apparently, this encouraged the Commission to take action,” he said.
After an initial notice from the EU executive, the Slovenian government amended the law, but the changes were deemed insufficient, triggering a reasoned opinion, which, if requirements are not met, could bring the country in front of the European Court of Justice (ECJ).
Critics question the entire argumentation developed by the European Commission.
“Despite the fact that there is no harmonisation or any other kind of binding regulation on mutual recognition of accreditation in higher education, it appears from the procedure that the Commission developed its argument around the “country of origin” principle, normally used for cross-border trade in goods and services,” the researcher added.
“The Commission persistently avoids the provisions of the ‘Services Directive’ that explicitly exclude education as a service of general interest and special meaning from the scope of the directive,” he said in an interview, wondering why it suddenly treats education as a service on the market. The researcher added that “the treaties are clear: the content of teaching and the organisation of education systems belong strictly to the jurisdiction of member states.
The Commission directorate for internal market declined to comment on the issue, since the legal procedure is ongoing, but EurActiv managed to get a reaction from the education department (DG EAC) as to why the reasoned opinion did not mention legal provisions pertaining to education.
“DG EAC was in fact consulted by DG MARKT on the case and gave its agreement to the reasoned opinion. EAC is satisfied that the case the Commission is pursuing - which is to examine whether the Slovenian law will call into question the right of educational service providers to provide services in Slovenia either through a branch or through a franchise agreement - is fully compatible with the EU's aim to promote the provision of expanded and high quality higher education,” Dennis Abbott, the DG’s spokesman replied.
Opponents to the legal case the Commission is leading against Slovenia’s higher education act base their arguments on previous warnings coming notably from the European Trade Union for Education (ETUCE), which, at the time of the adoption of the services directive in 2006, issued a statement raising concern about the impact this new piece of EU legislation might have over education policy, and called for a full exclusion of the education sector from then-drafts of the directive.
“ETUCE highlights that the issue at stake is whether the protection of the right to free trade and free establishment should stand above Member States’ efforts to ensure high quality in their education systems […]EU Member States evidently have great interests in a highly educated population, particularly raising the educational attainment levels of the less educated groups of the population. But genuine equal access and high quality in education are not brought about by increased commercialisation of the education sector and increased trade in education services,” the statement read, putting forward a “crucial political question” to the EU institutions:
“What should be granted higher value, the right to free trade in an open education market, or member states’ right to fully regulate their education sector with a view to securing high quality and equal access throughout life to its population?”
Small states’ ‘obedience’
The infringement case against Slovenia, has, however, failed to attract attention among the wider public, but involved stakeholders are extremely wary of the demanded changes. In an e-mail response to EurActiv in the name of the Slovenian student movement, ‘Iskra’, Jaka Perovšek did not mince his words, calling it a “very, very dangerous proposal”.
“We see the infringement procedure as continued pressure from European and international institutions on Slovenia to commercialise and deregulate higher education. These changes are being introduced around the world in the name of competitiveness and free trade principles.”
“We wholeheartedly oppose the changes demanded by the Commission, he added, not only because they can create dangerous possibilities for the existence of educational institutions of questionable quality, but also because of the ideological basis for such changes.”
Students also blame the (former) Slovenian government’s ‘obedience’ to the EU Commission, which has led to ‘secrecy’ in the whole process.
“[O]ur (former) government doesn’t see itself in a position to decline anything from the EU instutions and […] they are not capable of understanding neither the implication of such deregulation, nor the legal tricks the Commission is using to apply pressure,“ Perovsek added.
Klemen Miklavič agreed. ”The government did not seek any public debate on the matter, it didn’t dispute inside the EU institutions, be it by raising the issue in Council or by more forcefully pushing back on the faulty arguments of the Commission," he said. "The reaction can be interpreted as typical for a small peripheral new member state, perceiving itself as powerless in front of the EU institutions.”
TTIP and ‘threat to national sovereignty’
The developments surrounding the Slovenian case have also been linked to concerns aired by the European Students’ Union (ESU) and Education International, the teachers’ organisation, over how the US-EU trade deal (TTIP) could impact European education quality, which EurActiv wrote about earlier this year (read here).
In these negotiations, similar to the discussions at the time of the services directive, stakeholders demand a full exclusion of the sector due to lack of legal clarity.
In the Slovenian students organisation’s opinion, the case led against their country “could set a dangerous precedent” in the light of TTIP.
“I see an identical discourse surrounding the statement of EU officials regarding TTIP, as was the case during the negotiations on the services directive,” to Klemen Miklavič told EurActiv.
“According to them, TTIP does not cover services of general interest, but neither did the services directive. Yet we now have a case where apparently it does. The Slovenian case shows in practice that trade principles prevail.”
The same kind of mistrust and defiance could be heard from the Slovenian students:
“It would not only ease the conditions for undermining of Europe’s education quality. It would also mean a step backwards for a progressive society which considers education as a basic right, a possibility for emancipation and a means to reduce social inequality.”
Critics have also raised concerns that if the legislation in Slovenia is passed, it could provide a loophole for the EU executive to breach national sovereignty in education policy.
“If the law in its present form is passed, granting fully liberalized access to transnational “providers” of higher education, the Commission will score an important victory that would complement the ECJ jurisprudence in advancing market principles at the expense of member states’ sovereignty over education. Added to the TTIP perspective, this might mean more trade in education services, a more open access for US and global for-profit providers of educational services to European markets, and less public oversight of quality of education,” Miklavič concluded.
The Slovenian student union said in a written statement: "The mentioned infringement procedure of the EU Commission against Slovenia's higher education act refers to the legal regulation of transnational higher education. The infringement itself should be resolved by our national political institutions e.g. the Slovenian government and the Ministry for Higher Education. What we wish to stress out, is some of the possible negative outcomes of the so-called TNE. Firstly is the quality of higher education, that could be set in a down-fall spiral especially if HEI's, that would decide to implement their study programs in Slovenia, would not meet the quality standards of our higher education. We also fear that TNE on the long term, could cause the decline of international student mobility and the decreased financing of mobility programs. TNE could also lead to commercialization of higher education, especially in the form of increased marketing and competitiveness of HEI's. Therefore we are somewhat skeptical in the concept of TNE, however, we understand that the trends in EU follow the idea of the free flow of knowledge, but we are at least expecting the right to have some legal regulation, that would ensure the quality and the social dimension of HE in Slovenia and Europe."