Restrictions on private institutions of higher education to implement study programmes in the official languages of the European Union are unconstitutional, while restrictions on other foreign languages are constitutional
On 9 February 2023, the Constitutional Court delivered a judgement in Case No. 2020-33-01 “On Compliance of the Third Sentence of Section 5, Paragraph One, Section 56, Paragraph Three and Paragraph 49 of Transitional Provisions of the Law on Higher Education Institutions with Article 1 and Article 105 of the Satversme of the Republic of Latvia”.
The Contested norms
The third sentence of Section 5, Paragraph One of the Law on Higher Education Institutions stipulates that institution of higher education shall cultivate and develop science, art and the national language in their activities.
Section 56, Paragraph Three of the Law on Higher Education Institutions (according to the wording effective from 1 January 2019 to 30 April 2021) stipulated as follows:
“The study programmes of higher education institutions and colleges shall be implemented in the official language. The use of foreign languages in the implementation of study programmes is only possible in the following cases:
1) Study programmes may be implemented in the official languages of the European Union, where these programmes are acquired by foreign students in Latvia and implemented within the framework of the cooperation between the European Union programmes and that provided for in the international agreements. For foreign students, the compulsory course of studies must include acquisition of the national language if the period of studies in Latvia is longer than six months or exceeds 20 credit points;
2) Not more than one-fifth of the number of credit points of the study programme may be implemented in other official languages of the European Union, taking into account that final and state exams, as well as the development of a qualification paper, bachelor’s or master’s thesis may not be included in this part;
3) Study programmes, the implementation of which in a foreign language is necessary for the achievement of the objectives of the study programme, in accordance with the classification of education of the Republic of Latvia in the following groups of educational programmes: language and cultural studies, language programmes. The Licensing Commission shall decide on the conformity of the study programme with the groups of study programmes;
(4) Joint study programmes may be implemented in the official languages of the European Union.”
Paragraph 49 of the Transitional Provisions of the Law on Higher Education Institutions (according to the wording effective until 30 April 2021) provided for as follows:
“Amendments to Section 56, Paragraph Three of this Law with regard to the language of implementation of study programmes shall enter into force on 1 January 2019. Institutions of higher education and colleges, the language of implementation of study programmes of which does not conform to the provisions of Section 56, Paragraph Three of this Law, shall have the right to continue implementation of study programmes in the respective language until 31 December 2022. After 1 January 2019, the admission of students to study programmes with the language of implementation that does not conform to the provisions of Section 56, Paragraph Three shall not be allowed.”
Norms with a higher legal force
- Article 1 of the Constitution of the Republic of Latvia (hereinafter referred to as — the Satversme): “Latvia is an independent democratic republic.”
- Article 105 of the Satversme is the following: “Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation.”
The facts of the case
The case was initiated based on the application submitted by twenty Members of the 13th Saeima. According to the applicant, the contested norms restrict the rights of private institutions of higher education to carry out commercial activities, as well as violate the principle of protection of legitimate expectations. The contested norms have allegedly prevented the implementation of already licensed and accredited study programmes in foreign languages, as well as the legislator has allegedly failed to ensure a smooth transition to the new legal framework. The contested norms have also restricted the freedom of entrepreneurship and business activities of citizens and companies of the Member States of the European Union who wished to establish private institutions of higher education in Latvia to provide higher education services.
The applicant holds that the restriction of fundamental rights is disproportionate, since the legitimate aims – promotion of use of the official language and preservation of national identity – can be achieved by less restrictive means, which would allow for wider use of foreign languages. Likewise, no fair balance has allegedly been struck between the interests of private institutions of higher education and the public.
Conclusions of the Court
Whether the proceedings should continue
The Saeima requested that the proceedings in the case be terminated because: 1) Section 56, Paragraph Three and Paragraph 49 of the Transitional Provisions of the Law on Higher Education Institutions have expired; 2) the contested norms do not restrict the right to own property. [23]
First, the Constitutional Court recognised that Section 56, Paragraph Three and Paragraph 49 of the Transitional Provisions of the Law on Higher Education Institutions, insofar as it allowed for the continuation of the implementation of study programmes that had been initiated, had been amended in substance and become invalid. However, legal dispute over the constitutionality and harmony of the rules with the EU law still persists. It was therefore necessary to continue proceedings in the case. [24]
Second, the Constitutional Court examined whether the contested norms restricted the right to own property of private institutions of higher education. [25]
On the third sentence of Section 5, Paragraph One of the Law on Higher Education Institutions
The applicant relates restriction of the right to own property of private institutions of higher education to the prohibition to implement licensed and accredited study programmes in foreign languages. The Constitutional Court recognised that the third sentence of Section 5, Paragraph One of the Law on Higher Education Institutions did not regulate the language in which study programmes are to be implemented. This gives private institutions of higher education a wide discretion to choose the ways in which they teach and develop the national language. Thus, this norm does not restrict the rights of private institutions of higher education to carry out commercial activities by implementing licensed and accredited study programmes, and the proceedings in the case on compliance of the third sentence of Section 5, Paragraph One of the Law on Higher Education Institutions with Articles 1 and 105 of the Satversme should be terminated. [26]
On Section 56, Paragraph Three and Paragraph 49 of the Transitional Provisions of the Law on Higher Education Institutions
The Constitutional Court examined whether (1) Section 56, Paragraph Three of the Law on Higher Education Institutions restricted the right to own property included in Article 105 of the Satversme for citizens of the Member States of the European Union and companies that wished to provide higher education services in Latvia and (2) Section 56, Paragraph Three and Paragraph 49 of the Transitional Provisions of the Law on Higher Education Institutions as a single legal framework for private institutions of higher education that already provided higher education services in Latvia restricted the right to own property included in Article 105 of the Satversme in conjunction with the principle of protection of legitimate expectations included in Article 1 of the Satversme. [27]
First, the judgement states that the duty to implement study programmes in the official language restricts the freedom of entrepreneurship enshrined in Article 49 of the Treaty on the Functioning of the European Union, which is linked to the freedom of business activities enshrined in Article 16 of the Charter of Fundamental Rights of the European Union. The Constitutional Court emphasised that the above-mentioned freedoms may overlap with the right to own property included in the Satversme, but this does not mean that the content of these norms would match. The first three sentences of Article 105 of the Satversme protect the right to engage in an ongoing commercial activity, but their scope excludes the right to start commercial activity. Consequently, the rights of citizens and companies of the Member States of the European Union that wished to engage in business by establishing private institutions of higher education in Latvia and providing higher education services to engage in business activities do not fall within the scope of the first three sentences of Article 105 of the Satversme. [27.2]
Secondly, the contested norms provide for provisions which restrict the rights of private institutions of higher education to implement study programmes in foreign languages and which private institutions of higher education must take into account when planning their commercial activities in the field of higher education in the future. Consequently, the contested norms restricted the rights of private institutions of higher education which were already providing higher education services to carry out their commences commercial activities on the basis of a licence, and the proceedings in the case must be continued. [27.3]
On whether the contested norms comply with Article 1 and the first three sentences of Article 105 of the Satversme
The Constitutional Court concluded that the restriction on fundamental rights contained in the contested provision had been established by a duly adopted law. It also has legitimate aims – protection of the democratic system and the rights of other persons – because the contested norms strengthen the role of the official language in higher education and promote the skills of using the official language, protecting the rights of Latvian nationals to use the official language. The measure selected by the legislator is suitable for achieving legitimate aims. Every person is provided with the opportunity to participate fully in the democratic processes of the state and society, the development of national science is promoted and the right of Latvian nationals to use the official language in mutual communication is protected. [29, 30, 32]
The Constitutional Court assessed whether the legitimate aim could not be achieved by other, less restrictive means which would be equally effective. Granting the right to a private institution of higher education to implement study programmes in foreign languages, if at the same time it ensures the availability of an equal study programme in the official language, would not encourage Latvian nationals to study in the official language, developing their official language skills, and neither would it strengthen role of the official language in higher education to the same quality. [33.1]
Linking the obligation to develop study programmes in the official language to the allocation of state budget funding would require a disproportionate contribution from the state and society. [33.2]
The right to implement study programmes in the official languages of the European Union in the form of distance learning for foreign students were already effective at the time when the contested norms were in force. The right to implement study programmes in foreign languages other than the official languages of the European Union would allow also Latvian nationals to acquire study programmes implemented in the form of distance learning and acquired by foreign students in foreign languages. Latvian nationals could also be enrolled in study programmes acquired by foreign students. Such an alternative measure would not strengthen the role of the official language in higher education to the same quality, since Latvian nationals would use the official language less in the study process. [33.3]
The Constitutional Court noted that it had already recognised in Case No. 2019‑12‑01 that there was an alternative, less restrictive mean of achieving the legitimate aims of private institutions of higher education, which was to grant the right to implement study programmes in foreign languages to those higher education institutions whose study programmes had reached certain quality criteria and to provide for exceptions from the general regulation, for example, in certain fields of science or at certain levels of study. [33.4]
The Constitutional Court established that the study programmes of private institutions of higher education were conducted in Latvian, English and Russian. [33.4]
On restrictions on the implementation of study programmes in the official languages of the European Union
Latvia belongs to the European cultural space, and one of the languages of this space is English. It is also one of the official languages of the European Union and the international language of science. The legal framework that, in addition to the existing exceptions from the obligation to implement study programmes in the official language, would provide for to grant the right to implement study programmes in the official languages of the European Union to those institutions of higher education whose study programmes have reached certain quality criteria and would provide for exceptions from the general regulation, for example, in certain fields of science or at certain levels of study, would strengthen the skills of the official languages of the European Union and Latvia’s belonging to the European cultural space, as well as less restrict rights of the private institutions of higher education to own property. The legislator, while respecting the need to protect the official language, should promote the learning of the official languages of the European Union so that the Latvian state and society could fully engage in the European cultural space, namely, the European educational and scientific space. Consequently, the contested norms, in so far as they relate to the official languages of the European Union, were not necessary for the achievement of the legitimate aims and, consequently, were not proportionate and did not ensure harmony with European Union law. [33.4]
On restrictions to implement study programmes in foreign languages other than the official languages of the European Union
Within the policy of the Soviet occupation regime, important role was played by weakening the positions of the Latvian and forced russification. More than thirty years after the restoration of independence, there is still a need to remedy the consequences of the Soviet occupation, because at the current stage of the development of society, a significant proportion of Latvian nationals do not know Latvian at a sufficient level to be able to fully integrate themselves into the society, communicate with the state and other members of society, or choose not to use it. Taking into account the historical experience of Latvia, the fact that, at present, the skills and use of Latvian as the official language is not sufficient and the transition to education in the official language has not still been finalised, the Constitutional Court concluded that the state needed to take positive measures and strengthen the protection of the use of the official language. [34]
However, legal framework that restricts the use of foreign languages in the study process may affect the protection of minority rights. However, Section 56, Paragraph Three of Transitional Provisions of the Law on Higher Education Institutions provided for an exception from the obligation to implement study programme in the official language and ensured the possibility of implementing study programmes aimed at preserving the identity of national minorities. [34]
If, in addition to the exceptions from the obligation to implement study programmes in the official language set out in Section 56, Paragraph Three of the Law on Higher Education Institutions, study programmes were allowed to be implemented in Russian on the basis of the quality assessment of study programmes and exceptions in certain fields or levels of studies, then Latvian nationals, including those with insufficient knowledge of the official language, would use Russian more and the official language less in the study process. Such a situation would contribute to the segregation of national minorities and weaken the role of the national language in all spheres of society, including higher education, and would not strengthen Latvia’s belonging to the European cultural sphere. Consequently, the legitimate aims would not be achieved to the same extent and this measure cannot be regarded as an alternative mean of achieving the legitimate aims. [34]
Finally, the Constitutional Court examined whether the contested norms achieved a fair balance between the rights of private institutions of higher education to carry out commercial activities and the legitimate expectations with the need to strengthen the use of the official language in the higher education. No private institution of higher education has ceased its activities after the entry of the contested norms into force. Private institutions of higher education also mostly implemented study programmes in several languages, such as Latvian, English and Russian. [35.1]
Private institutions of higher education, like public universities, form part of a single higher education area, including the issuing of state-recognised diplomas, and therefore they cannot be separated from the important national task of strengthening the national language. In Latvia, the situation of the national language is still affected by the consequences of the forced russification during the Soviet occupation. Positions of the Latvian language in a number of sociolinguistic functions do not currently correspond to the status of the official language. The Constitutional Court recognised that the legislator had ensured a fair balance between the rights to carry out commercial activities by implementing licensed and accredited study programmes in languages other than the official languages of the European Union and the need to strengthen the use of the official language in higher education. [35.1]
The Constitutional Court also ascertained whether the legislator had balanced the interests of society and the legitimate expectations of private institutions of higher education. By amending the Law on Higher Education Institutions, the legislator extended the transitional period during which private institutions of higher education may continue to implement study programmes that do not comply with the provisions on the language of implementation of the study programme included in the contested norms by three years, i.e., until 31 December 2025. Thus, the legislator has ensured by the amendments that private institutions of higher education can complete the implementation of already accredited study programmes and that the accredited study programmes are not interrupted. [35.2]
With regard to the prohibition to admit new students from 1 January 2019, the Constitutional Court drew attention to the fact that, if the legislator would allow that, after the entry of the contested norms into force admission of new students to study programmes that did not comply with the requirements of the contested norms would continue, then the period of time during which institutions of higher education were entitled to implement such programmes should also be extended. This would result in a continuous flow of new students and, consequently, a need to extend the transitional period during which the study programme is allowed to be implemented. This would lead to the legislator not being able to implement the transition to the new language regulation for the implementation of study programme. Thus, the contested norms ensured a transition to the new legal framework in accordance with the principle of protection of legitimate expectations. [35.2]
On the moment of expiry of the legal norms
The contested norms, insofar as these norms related to the implementation of study programmes in the official languages of the European Union in private higher education institutions, could have caused losses to private higher education institutions, which after 1 January 2019 could no longer enrol students in study programmes implemented in the official languages of the European Union and did not comply with any of the exceptions from the obligation to implement study programmes in the official language established by the contested norms. Consequently, the contested norms should be declared null and void from the date of their adoption.
- The Constitutional Court resolved as follows:
1 To dismiss the proceedings in the case regarding the third sentence of Section 5, Paragraph One of the Law on Higher Education Institutions with Articles 1 and 105 of the Satversme of the Republic of Latvia.
2 To declare Section 56, Paragraph Three and Paragraph 49 of the Transitional Provisions of the Law on Higher Education Institutions (in the wording effective from 1 January 2019 to 30 April 2021), insofar as these provisions relate to the implementation of study programmes in private institutions of higher education in the official languages of the European Union, incompatible with Article 1 and the first, second and third sentences of Article 105 of the Satversme of the Republic of Latvia and null and void from the moment of adoption.
3 To declare Section 56, Paragraph Three and Paragraph 49 of the Transitional Provisions of the Law on Higher Education Institutions (in the wording effective from 1 January 2019 to 30 April 2021), insofar as these provisions relate to the implementation of study programmes in private institutions of higher education in foreign languages other than official languages of the European Union, compatible with Article 1 and the first, second and third sentences of Article 105 of the Satversme of the Republic of Latvia.
The Constitutional Court’s judgement is final and not subject to appeal, it shall enter into effect on the day of its declaration.
The text of the judgement (in Latvian) is available on the website of the Constitutional Court.
Linked case: 2020-33-01