B Explanatory memorandum
by Mr Flego, rapporteur
Following the tabling of the
motion on this subject (Doc. 12404
) by several of my colleagues and myself, the Committee
on Culture, Science and Education appointed me rapporteur on 27
January 2011. Through my work as Professor of Philosophy at Zagreb
University and former Minister for Science and Technology of Croatia,
I participated in the Bologna Process and experienced the changes
this process brought to universities and their governance parameters.
I also participated as a speaker at the Council of Europe’s Conference
on Academic Freedom and Institutional Autonomy: the Role of Public
Authorities, in Strasbourg on 8 and 9 November 2010, which was part
of the preparatory work for a new Committee of Ministers recommendation
on this subject.
Based on a report by my former colleague, Professor Josef
Jařab (Czech Republic), the Parliamentary Assembly had adopted its Recommendation 1762 (2006)
on academic freedom and university autonomy, which stressed
the important role of higher education institutions and their self-governance.
A detailed analysis of the governance of higher education institutions
and their involvement in the European Higher Education Area were
not yet the focus of Recommendation
. The present report shall complement this work and take
Professor Pavel Zgaga prepared and presented to the committee
in Paris on 5 March 2012 a substantial background report.Note
He looked at university autonomy from historic
concepts to modern challenges. I am very grateful for his contribution
to this work.
During the meeting on 5 March 2012, the committee also held
a hearing on education policies with the participation of Ambassador
Arif Mammadov, Chair of the Council of Europe Committee of Ministers’ Rapporteur
Group on Education, Culture, Sport, Youth and Environment (GR-C),
and the following experts:
Pavel Zgaga, Director of the Centre for Educational Policy Studies,
University of Ljubljana;
- Professor Germain Dondelinger, Co-ordinator for Higher
Education, Ministry of Culture, Higher Education and Research, Luxembourg;
- Dr Annette Pieper de Avila, Senior Consultant, Section
for Higher Education, UNESCO;
- Ms Anna Glass, Secretary General, Magna Charta Observatory,
- Ms Ligia Deca, Co-ordinator, Romanian Bologna Follow-Up
Group Secretariat, Bucharest;
- Mr Frank Petrikowski, Higher Education Unit, DG for Education
and Culture, European Commission, Brussels.
5. I deeply appreciate the helpful contributions by these participants
as well as – last but not least – by my colleagues from the committee
2 Defining the governance of higher education
6. For centuries, university autonomy
and academic freedom have been fundamental principles of the systems
of higher education in Europe. Many national constitutions stipulate
those principles and have done so for decades. Even the European
Union Charter of Fundamental Rights guarantees in its Article 13
the right to freedom of the arts and research and academic freedom.
Universities have committed themselves to respecting those freedoms
under the Magna Charta Universitatum of 1988.
7. Attempts to define academic freedom and institutional autonomy
of higher education institutions have been less frequent. While
the Magna Charta Universitatum constitutes an early and still vague
reference to university autonomy and academic freedom, the elements
developed subsequently by the European University Association are
more concrete, stating that university autonomy consists of four
aspects: organisational, financial, academic and staffing. These
four elements are echoed by the new work of the Steering Committee for
Educational Policy and Practice under the Committee of Ministers,
proposing that institutional autonomy, in its full scope, encompasses
autonomy of teaching and research as well as financial, organisational
and staffing autonomy.
8. In his contribution to the committee's hearing in Paris on
5 March 2012, Professor Zgaga proposed to regard higher education
governance (HEG) as a multidimensional concept, where it was necessary
to roughly distinguish three structural dimensions: (a) internal
or institutional HEG: governance of higher education institutions;
(b) external or systemic HEG: governance of (national) higher education
systems; and (c) international or global HEG: governance of higher
education systems within an international (global) perspective,
for example the Bologna Process.
9. The traditional term “university autonomy” referred to universities
instead of technical or vocational institutions of higher education.
Such autonomy had, for example, been granted to early universities
by national monarchs and protected those universities from the powers
of local or regional rulers. The Bologna Process and national changes
to higher education systems have largely abolished the distinctions
between universities and technical or vocational colleges, thus
leading to the generic use of the term “higher education institutions”. The
terms autonomy and independence seem to be more or less identical.
and other influences on the autonomy of higher education institutions
10. Governance of higher education
institutions takes place within a framework of legal, political
and other more factual requirements or parameters. Among the factual,
competition among higher education institutions is the most important.
Higher education institutions compete for students, academic staff
and funding. The latter can be composed of State funding, private
funding and funding through students. Funding typically correlates
with the quality of academic staff and the quality and quantity
of students admitted. As higher percentages of the population pursue
higher education in Europe, this increase in quantity is sometimes,
but wrongly equated with a lowering of the quality of higher education.
I would rather see the quantitative increase as a positive symptom
as well as a challenge for both public authorities and higher education
institutions to ensure quality education.
11. Higher education institutions must therefore reflect in their
governance the demands created by students and academic staff, by
specialised organisations of civil society, as well as public authorities
and the economic sector. Where public funding constitutes a smaller
percentage, such a situation can translate into creating administrative
instances and management tools whereby private donors can influence,
or claim to influence, the institutional governance and setting
of strategic priorities. Students’ expectations can be expressed, inter alia, through student participation
in the administration and management of higher education institutions
as well as institutionalised student evaluation of teachers, academic
facilities and the higher education institution as a whole.
12. Limited effort has as yet been put into analysing the positive
or negative impacts of such factual requirements and their institutionalisation
as determining factors for the governance of higher education institutions.
It cannot be doubted, however, that greater responsiveness to demands
by students and the private sector may provide a competitive advantage
for higher education institutions.
13. Political requirements for higher education are typically
set by national or regional legislators. Higher education can hereby
respond to regional historic, cultural and geographical circumstances.
This competence is in line with the principle of subsidiarity recognised
in Article 165 of the Treaty on the Functioning of the European
Union as well as in national constitutions, especially in federally
structured States such as Belgium, Germany and Switzerland.
In her report on the dangers of creationism in education (Doc. 11375
), my colleague Ms Anne Brasseur (Luxembourg) analysed
political tendencies influencing teaching and research regarding
the theory of evolution of Charles Darwin. In the United States
and in a few European countries, possible limits on research and
teaching had been considered in this respect, favouring a religion-based
or “creationist” approach. Public funding of teaching and research
would be a typical means of implementing such limits, if academic
freedom and freedom of research were not protected.
15. In the same vein, economic or commercial pressure on research
and teaching might be exercised by private funding of higher education
institutions. It is no surprise to see private universities being
created in Europe, which focus on business administration, commerce,
law or engineering, while political science, social science or philosophy
remain subjects primarily taught and researched at public higher
16. Beyond the primacy of national (and regional) policies, co-operation
and co-ordination have been achieved among education ministers in
Europe through the Bologna Process since 1999. The creation of the European
Higher Education Area as well as the huge funding of student and
teacher mobility through European Union programmes have had a considerable
impact on such issues as academic qualifications, degrees and diplomas.
Autonomy of higher education institutions has thus been limited
by accepting to award comparable or identical degrees after identical
study periods across Europe. The autonomy of higher education institutions means,
however, that the final responsibility for the qualifications, degrees
and diplomas awarded rests with the particular higher education
institution. My colleague Professor Rafael Huseynov (Azerbaijan)
looks at the impact of the Bologna Process in his report on the
consolidation and international openness of the European Higher
In addition, higher education institutions have defined for
themselves political requirements. Universities set up in Bologna
in 1988 the Magna Charta Universitatum with its observatory.Note
charta lays down that “freedom in research and training is the fundamental
principle of university life, and governments and universities …
must ensure respect for this fundamental requirement”.
18. Finally, international treaties have defined legal frameworks
for higher education, such as the recognition of access qualifications,
study periods and academic degrees or diplomas under Council of
Europe conventions since 1953 and the 1997 Convention on the Recognition
of Qualifications concerning Higher Education in the European Region
(ETS No. 165, “the Lisbon Recognition Convention”). The latter convention pays
due respect to institutional autonomy by stating in its Article
II.2.1: “Where the competence to make decisions in recognition matters
lies with individual higher education institutions or other entities,
each Party according to its constitutional situation or structure
shall transmit the text of this Convention to these institutions or
entities and shall take all possible steps to encourage the favourable
consideration and application of its provisions.”
19. With regard to the Lisbon Recognition Convention and in order
to make the recognition process simpler and more inclusive, its
signatories should invest more efforts in enlarging its geographical
remit and including more non-European States by promoting the accession
of new States to this convention, if such States recognise academic
freedom and the autonomy of higher education institutions.
legal standards on higher education
20. Besides the political and other
more factual requirements, legal standards apply and restrict the
margin of autonomy of higher education institutions. Among the general
legal standards applicable to higher education, mention should be
made first and foremost of human rights. Of course, obligations
resulting from human rights standards fall first on public authorities
while higher education institutions certainly benefit from them.
However, it is clear that governance of higher education institutions
and their autonomy must not compromise human rights.
Article 2 of the first Protocol to the European Convention
on Human Rights (ETS No. 9 and ETS No. 5) guarantees the right to
education, which includes primary, secondary and higher education
in accordance with the case law of the European Court of Human Rights.Note
Under Article 10.1 of the revised
European Social Charter (ETS No. 163), Parties to the Charter undertake
“to grant facilities for access to higher technical and university
education, based solely on individual aptitude”.
22. Article 13 of the International Covenant on Economic, Social
and Cultural Rights establishes the universal right to education,
including the right to compulsory and free primary education, the
right to progressively free secondary education and the right to
higher education accessible to all on the basis of capacity and
“in particular by the progressive introduction of free education”.
Article 15(3) of this International Covenant recognises freedom
of scientific research.
Article 13 of the Charter of Fundamental Rights of the European
guarantees: “[t]he arts and scientific
research shall be free of constraint. Academic freedom shall be
respected”. Article 14 of the Charter guarantees the right to education
and access to vocational and continuing training.
24. In addition to human rights standards, Council of Europe conventions
since 1953 and the joint Council of Europe and UNESCO Lisbon Recognition
Convention of 1997 contribute to defining the legal frameworks for
higher education, namely through provisions on the recognition of
entrance requirements, study periods and academic degrees or diplomas.
Normative texts adopted by the Council of Europe are also
relevant. The Committee of Ministers Recommendation CM/Rec(2007)6
on the public responsibility for higher education and researchNote
takes a clearer stand in favour
of harmonisation and stipulates that: “[p]ublic authorities should
assume exclusive responsibility for the framework within which higher
education and research are conducted. This should include responsibility
for: the legal framework; the degree structure or qualifications
framework of the higher education system; the framework for quality
assurance; the framework for the recognition of foreign qualifications;
the framework for information on higher education provision. In
elaborating or amending the legal framework, in accordance with
the constitution and the legislative practice of each country, public
authorities should consult with higher education institutions and
their organisations, research institutes and bodies, organisations
of students and staff and other relevant stakeholders. Public authorities
should determine the degree structure or qualifications framework
of the higher education system for which they are responsible in
accordance with international standards, and in particular those
of the European Higher Education Area.”
26. The new recommendation of the Committee of Ministers to member
States on the “responsibility of public authorities for academic
freedom and institutional autonomy” must also be taken into account
once adopted. It will discuss and define in broad terms the role
and obligations of public authorities.
governance of higher education institutions in practice
27. Against the backdrop of those
legal, political and other requirements or parameters, an independent
or autonomous governance of higher education institutions could
appear as a theoretical rather than a practical concept. However,
the practical importance of those fundamental principles becomes
clear when they are lacking or being violated.
28. Looking at the not so distant past, the negative example of
East German higher education comes to mind. The communist government
of the German Democratic Republic had set up strict political control
of higher education, which meant that critical teachers were dismissed
and even children of critical citizens were barred from entering
higher education institutions. Higher education was perceived as
a privilege for politically loyal citizens.
Such a restrictive approach to higher education can still
be found today in Belarus. Assembly Recommendation 1762 (2006)
, in its paragraph 14, called on the Committee of Ministers,
specialised ministries and universities in member States “to set
up a multilateral programme for European student and faculty exchanges
with universities in Belarus and the Belarusian European Humanities
University in Vilnius (Lithuania)”. This specific reference was
caused by the dismissal of students from higher education institutions in
Belarus following protests against the presidential election in
March 2006. Thereafter, the Governments of the Czech Republic and
Poland, for example, as well as the European Union, set up national
projects allowing students from Belarus to study abroad.
30. The presidential election in Belarus in December 2010 had
the same effect again. Students who protested or engaged themselves
politically in opposition to the President of Belarus were dismissed
from higher education institutions. In 2011, the European Union
barred from entering European Union territory five university rectors
in Belarus who had dismissed students and abused their academic
position in order to force students to vote for President Lukashenko.
This led also to the decision of the Bologna Follow-Up Group in Copenhagen
on 18-19 January 2012 to recommend rejecting the application of
the Government of Belarus to join the European Higher Education
Area, a recommendation that ministers followed at their meeting
in Bucharest on 26-27 April 2012. The governmental appointment of
ideological controllers at universities in Belarus is a terrible
phenomenon which mirrors the Orwellian model of thought control
in clear violation of academic freedom.
31. Students are often politically critical. From the many examples,
one could refer to the Munich students protesting under the name
“White Rose” against the racist and political restrictions imposed
in Germany after 1933, the student protests in many countries in
western Europe and North America during the late 1960s, the massacre
of students protesting on Tiananmen Square in Beijing in 1989 as
well as the self-immolation of the young street vendor Mohamed Bouazizi
in Tunisia in December 2010, which contributed to the setting in
motion of the Arab Spring. All these examples prove that academic
freedom and higher education are necessary requirements for the
progress of democratic societies as well as the development of every
human being. In this respect, academic freedom also correlates with
freedom of expression and freedom of thought.
institutional autonomy and academic freedom with public policy
32. Higher education is a human
right and a cornerstone of any democratic society. Therefore, it
must be an important part of public policy. Public policy demands
on higher education will sometimes be different from the demands
which higher education institutions may have. Autonomy and freedom
are not absolute principles in this context. University autonomy
and academic freedom may have to be balanced with some public policies and
33. Fundamental freedoms and human rights are generally upheld
vis-à-vis public authorities, that is to say that higher education
institutions have the right to exercise their freedom without undue
State interference or restrictions. In concrete terms, for instance,
this means that public authorities must not impose their political decisions
concerning the admission or dismissal of an individual student or
the recruitment of a specific teacher. Europe witnessed such undue
State interference under communist or fascist governments.
34. As restrictions can also be imposed by private entities, for
instance through their private funding, an effective implementation
of such freedom might require that the State intervene to avoid
the risk of undue interferences by private entities. This is obviously
a more complex approach, which could require, for instance, sufficient
public funding in order to allow higher education institutions to
serve their mission independently and in a non-discriminatory manner.
35. Another solution could be the requirement of positive action
for disadvantaged or minority students. Students with poor financial
resources, in peripheral regions or with physical disabilities,
for example, generally need some public support in order to fully
enjoy the right to higher education. Such support by public authorities can
be financial (for example, awarding grants or scholarships), technical
(for example, imposing building requirements, providing transport
and communication infrastructures) or administrative (for example, regulating
positive admission policies or exam requirements).
Following from Assembly Recommendation
on the place of mother tongue in school education, and
in accordance with the European Charter for Regional or Minority
Languages (ETS No. 148) and the Framework Convention for the Protection
of National Minorities (ETS No. 157), higher education should be
accessible for students speaking minority languages.
37. Freedom of research is a fundamental right, recognised for
instance under Article 15(3) of the International Covenant on Economic,
Social and Cultural Rights as well as Article 13 of the Charter
of Fundamental Rights of the European Union. Nevertheless, not all
scientific research may be permitted, but some – for example, biomedical
research – can be specifically regulated and limited under the Convention
for the Protection of Human Rights and Dignity of the Human Being
with regard to the Application of Biology and Medicine: Convention
on Human Rights and Biomedicine (ETS No. 164).
38. Finally, social rights and labour law may legitimately limit
the autonomy of higher education institutions with regard to their
employing academic and administrative staff. In this context, one
can refer to the judgment of 14 February 2012 by the Federal Constitutional
Court of Germany, which decided that the Hessian law regulating
the remuneration of teachers of public higher education institutions
violated the fundamental right of civil servants for an adequate
remuneration commensurate with their position and the need to attract
highly qualified persons for such civil service. The employment
of student assistants may also require particular attention, because
in some cases such students are in a double dependence vis-à-vis
their higher education institution, both as students and as employees.
governance within higher education institutions
39. The governance of higher education
institutions in Europe is very diverse. In many countries, students participate
in an institutionalised form in such governance. For example, the
“Studenterråd” in Denmark and the general student councils in Austria
have traditionally a consultative or co-decisional role in the management of
higher education institutions. Student unions in Sweden are included
in the evaluation of higher education institutions.
In many countries, specific academic or administrative councils
have the right to appoint teachers and determine the academic work
of their higher education institution. Staff and work management
is thus pursued independently or autonomously. A recent empirical
overview of the governance structures and regulations was provided
by the European University Association.Note
It is difficult to imagine a European
harmonisation of the different structures and regulations.
41. In her contribution to the committee's hearing in Paris on
5 March 2012, Ms Karina Ufert, representing the European Students
Union, defined student participation in governance of higher education
as the students’ formal and actual ability to influence decisions
made in the context of a higher education institution or public authority.
She concluded that students did have an increasing say on the matters
directly related to the learning process, but they were mostly excluded
from top-level decisions in higher education institutions.
the quality of higher education
42. If the right to higher education
is to be taken seriously, public authorities have the obligation
to ensure the quality of higher education without limiting academic
freedom. The Council of Europe work on quality education is of great
importance – the projects developed in this area range from education
for democratic citizenship and human rights education to new activities
on ensuring quality education.
43. The Lisbon Recognition Convention of 1997 and prior Council
of Europe conventions focus on the mutual recognition of entrance
qualifications, study periods and academic qualifications, degrees
and diplomas. This requires an analysis of the quality of such higher
education efforts and institutions.
The ministers participating in the Bologna Process adopted
in Bergen (Norway) in May 2005 European Standards and Guidelines
for quality assurance in higher education.Note
text addresses in general terms external and internal quality assurance.
However, concrete parameters or indicators for such quality assessments
are not defined.
45. The OECD Programme for International Student Assessment (PISA)
and related projects influence heavily the higher education policies
of governments in Europe and beyond. Education systems have to be evaluated
in order to appreciate their strengths and shortcomings. Such evaluations
can be from the outside, for instance under the PISA work, or from
inside higher education institutions, for example through the stakeholders
within the institutions. Students, graduates, teachers and researchers
are best placed to pursue an analysis of their own institution,
for instance as regards quality of services provided by the higher
education institution and the concrete impact of the studies or
46. It would therefore be helpful if the Council of Europe could
initiate and seek consistency between the various missions of higher
education and the concepts of quality, since a generalised and transparent
approach to quality (higher) education is still lacking. In other
sectors, such as for health institutions and hospitals, detailed
quality evaluations have been set up within the European Union,
for instance, in order to better govern such institutions, ensure
quality health care and develop health policies nationally or regionally.
47. Ideally, such quality evaluations should be drawn up in a
transparent manner and be accessible eventually to students, teachers,
researchers and potential employers as well as to education ministries
and national legislators. All those stakeholders have a vital interest
in knowing the quality of a particular higher education institution
as well as the general quality of higher education institutions
in a given area. Without such knowledge, informed decisions cannot
be made concerning higher education.
48. Since broad evaluation projects such as PISA require huge
financial and human resources, it would be naive to think that member
States would currently finance new projects, even if they were convinced
of their usefulness. Therefore, it will be essential to ensure active
co-operation by higher education institutions, students, teachers
and researchers. An evaluation pursued individually with regard
to a given higher education institution is manageable for the latter
without many resources and provides important feedback for its own governance
control. The role for the Council of Europe could be to ensure that
such individual evaluations follow general principles and are comparable
on the basis of common indicators.
the participation of all stakeholders
49. International treaties such
as the Lisbon Recognition Convention are drawn up by legal experts
of diverse profiles from national ministries and subsequently ratified
and implemented by national parliaments. The standards set under
the Bologna Process were elaborated and agreed upon by national
ministers of participating States. Some non-governmental organisations,
the European Commission, the Council of Europe and UNESCO participate
in a consultative manner in the Bologna Process.
50. The European Students’ Union, the European University Association
and the European Association of Higher Education Institutions represent
the primary stakeholders of higher education. In order to remedy possible
shortcomings in higher education policies and avoid disruptions
by protests, it is important that students, teachers and researchers
consider themselves as owners of the changes in higher education
policies which have an impact on higher education institutions.
Academic freedom and autonomy of higher education institutions require
that students, teachers and researchers can effectively consider
themselves as such owners.
51. It is therefore important to associate these and possibly
other organisations – in particular the International Association
of Universities – with the work of the Bologna Process and the work
of the Council of Europe. The Standing Conference of Ministers of
Education has been a flagship of Council of Europe action since
52. Within the Council of Europe, greater co-operation could also
be established with regard to the Joint Council on Youth, which
represents youth organisations and governments. Higher education
is a core area of interest for young people. Therefore, it would
be useful to utilise the intra-institutional resources of the Council of
Europe for an advanced debate of this issue.
In paragraph 13 of Recommendation
on academic freedom and university autonomy, the Assembly
resolved “to co-operate with the Observatory of the Magna Charta
Universitatum in monitoring the observance of the principles of
academic freedom and university autonomy in Europe, thus adding
a European parliamentary dimension to the work of the observatory”.
My former colleagues Josef Jařab (Czech Republic) and Andrew McIntoshNote
(United Kingdom) attended meetings
of the Magna Charta Observatory in Bologna. I was also invited to
speak at such a meeting, but unfortunately had to decline due to
unexpected family obligations.
54. The Magna Charta Observatory is an important self-regulatory
platform for higher education institutions in Europe and beyond.
Its membership reflects the globalisation of historically European
values in higher education. It is not necessary for governments
to regulate higher education institutions where the latter can ensure
for themselves their proper governance. Therefore, the Council of
Europe and its Parliamentary Assembly should support such efforts
and reinforce their institutional co-operation.
55. The governance of higher education
institutions is a determining factor for the functioning and quality
of higher education systems. European traditions have established
the general principles of the autonomy of higher education institutions,
including academic freedom and freedom of research. Those principles
have been enshrined in several legal and political texts by higher
education institutions, European education ministers, the Council
of Europe, the European Union and the United Nations.
56. In practice, however, the autonomous governance of higher
education institutions is often undeveloped and challenged by various
external factors. Concrete policy actions are needed to strengthen
such governance and ensure, at the same time, effective implementation
of the universal right to education, including access to higher
education based on ability.
57. Governance of higher education institutions must rely to a
wider extent on internal evaluations as well as decision-making
structures which include all stakeholders, in particular students,
teachers and researchers.
58. National parliaments have the
power and the obligation to be active in national higher education
policies. Also within the European Union, Article 165 of the Treaty
on the Functioning of the European Union reaffirms the competence
and responsibility of national parliaments to determine higher education
policies and legislation. It is therefore logical that this Assembly
becomes more active in this field.
59. In the same vein, the Standing Conference of Ministers of
Education of the Council of Europe should be used as a leading platform
for discussing and co-ordinating higher education policies throughout
Europe. The Committee of Ministers and its Rapporteur Group on Education,
Culture, Sport, Youth and Environment must be an important partner
in this respect, as most foreign ministries also deal with cultural
60. All action must, however, include other stakeholders as well.
Students, teachers, researchers and higher education institutions
should be consulted and motivated to co-operate actively in defining
and implementing policy objectives and concrete projects concerning
higher education. In this context, the Assembly should also increase
its working contacts with representative organisations of students
and higher education institutions.
61. The autonomy of higher education institutions must be a guiding
principle. This autonomy cannot be total, but State authorities,
political or religious institutions and the economic sector should
not interfere in the internal functioning of higher education institutions.
Instead, greater transparency, consultation and co-operation are
62. In addition, academic freedom and freedom of research must
be respected as a fundamental right. Social and scientific progress
as well as the development of each individual depends on such freedom
in the same way as it depends on the freedom of thought and the
freedom of expression and information.