Language litigation in the field of higher education in the Constitutional Court of Latvia and the EU Court of Justice

Language litigation in the field of higher education in the Constitutional Court of Latvia and the EU Court of Justice

Elizabete Krivcova, LL.M.

On June 28, 2023, a four-year strategic litigation on the languages of instruction in Latvian universities ended. This process included three cases before the Constitutional Court of Latvia and one case before the Court of Justice of the European Union. The purpose of the processes was to achieve freedom of use of national minority languages in Latvian universities, in this case Russian, Ukrainian and Belarusian. The cause of action was the academic freedom and freedom of entrepreneurial activity of private institutions of higher education.

The story began on June 21, 2018, when the Latvian Saeima (Parliament) adopted amendments to the Law on Higher Education. These amendments extended to private institutions of higher education the same restrictions that applied to the public institutions, namely the general principle that the implementation of study programs is carried out in the state language. The law provided for a narrow range of exceptions when the implementation of the curriculum is allowed in a foreign language. Moreover, the range of permitted programs in the languages of national minorities was significantly narrower and covered only philological and cultural programs. As a result of these amendments, private universities in Latvia lost the right to teach in Russian and their right to teach in English significantly reduced. English and Russian were the main foreign languages in the curricula of private universities at the time the lawsuit was filed. Today, language restrictions have also become relevant for teaching in Belarusian and Ukrainian, as the representatives of the academic sphere are quite numerous among refugees from Belarus and Ukraine.

On 20 May 2019, a group of Latvian MPs filed a constitutional lawsuit against these amendments, and in July 2019 the Constitutional Court initiated a case on the inconsistency of Article 56 of the Law on Higher Schools with the Satversme (Constitution). The main arguments of the plaintiffs were the right to education, the right to property and unequal treatment. Article 112 of the Satversme of the Republic of Latvia guarantees the right to education, which in this case was embodied in the right of the founders of private universities to establish and manage their educational institution, the right of teachers to academic freedom and the right of students to choose a curriculum. Article 105 of the Satversme guarantees the right to property, which in this case was seen as the right to conduct economic activities based on a relevant license and to provide higher education services for a fee. Article 91 of the Satversme guarantees equality before the law, which, in the plaintiffs’ view, was violated because the same rules applied to private and public institutions of higher education. Yet, the former were in a different situation than the latter.

It is worth noting that the plaintiffs did not put forward Article 114 as a separate basis of their lawsuit although this Article of the Satversme guarantees rights of national minorities. The reason for this choice was the lack of effectiveness in the application of the concept of the national minority rights for the protection of rights in courts and public discussion in Latvia. In this case, this strategy proved its worth by not allowing the legal discussion to be channeled into the space of historical justice and the need for limited application of the rights of national minorities. However, the plaintiffs used the reference to the Framework Convention for the Protection of National Minorities as an additional argument.

On 11 June 2020, the Latvian Constitutional Court ruled that language restrictions on teaching in private universities are inconsistent with the Satversme of Latvia. The court recognized the violation of academic freedom, established by Articles 112 and 113 of the Satversme. The court also found a violation in the fact that the  Saeima did not evaluate alternative and less restrictive measures pertinent to the regulation of academic freedom.

At the same time, the court decided to divide the case and consider the issue of ownership in separate proceedings. The plaintiffs argued that the right to property and freedom of entrepreneurial activity is guaranteed not only by the Satversme, but also by Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU). The general requirement to implement study programs in Latvian is a limitation for universities from other EU countries to enter the Latvian market. The Constitutional Court decided to address the Court of Justice of the European Union with the question of whether the Latvian language restrictions violate European law. On 29 July 2020, the Court of Justice of the European Union (CJEU) initiated Case No. C-391/20 Boriss Cilevičs and Others.

Meanwhile, in the first part of the case, where the Constitutional Court found inconsistencies of restrictions on academic freedom, the Latvian legislator was obliged to develop a new regulation until May 1, 2021. Almost a year after the decision of the court, the legislator was busy with the reform of management in institutions of higher education. Mindful of the approaching deadline, on 8 April 2021, the Saeima urgently amended the Law on Higher Education Institutions by mechanically adopting into law one of the alternatives mentioned in the court judgment. Specifically, it was about the right to teach in the official languages of the European Union, subject to the high quality of the programs offered. To motivate universities to work better, an additional condition for the use of foreign languages was set to obtain the highest grades for accreditation of all programs of this thematic block. It is worth noting that such national minority languages as Russian, Ukrainian and Belarusian, which are common in Latvia, are not the EU official languages. Accordingly, these languages did not receive the sanction to be used as the languages of instruction.

On 7 December 2021, the Latvian MPs filed a new lawsuit with the Latvian Constitutional Court against the new law, which, according to the plaintiffs, failed to fulfill the requirements of the previous court decision. Instead of a thorough assessment and development of a balanced solution, the Saeima mechanically adopted one of the alternatives, and did it poorly. First, teaching in EU languages is unreasonably dependent on the quality of the complementary programs in Latvian. Second, the EU languages are too narrow a limitation. Third, the law assumes that the level of instruction in Latvian can be poor and medium, while in English it can be only excellent, and this demonstrates disrespect for the state (i.e. Latvian) language.

On 7 September 2022, the CJEU delivered its judgment in the Case No. C-391/20 Boriss Cilevičs and Others. It held that “Article 49 TFEU must be interpreted as not precluding legislation of a Member State which, in principle, obliges higher education institutions to provide teaching solely in the official language of that Member State, in so far as such legislation is justified on grounds related to the protection of its national identity, that is to say, that it is necessary and proportionate to the protection of the legitimate aim pursued.” The CJEU confirmed that a full assessment of the proportionality of restrictions and the existence of sufficient exceptions is necessary. Yet, the principle itself was recognized as legitimate. It is important to note that Advocate General Nicholas Emiliou in his opinion drew attention to the rights of national minorities and “a large Russian-speaking national minority in Latvia.” However, the CJEU did not listen to these arguments, also confirming the hypothesis about the ineffectiveness of the use of national minority rights at the European level.

Following the CJEU judgment, the Constitutional Court of Latvia held its meeting in January 2023 to consider the compliance of the old version of the law with the right of ownership, enshrined in Article 105 of the Satversme, and the freedom to establish enterprises, enshrined in Article 40 of the TFEU (Case No. 2020-33-01). On 9 February 2023, the Constitutional Court ruled that the restrictions on teaching in the official languages of the EU do not comply with the Satversme and European law, while the restrictions for other languages, and especially the languages of national minorities, are consistent with them. In terms of the plaintiffs’ goals, this was a Pyrrhic victory. The level of protection of the linguistic rights of national minorities fell even lower. It meant that even those adults who wanted to teach and study in their native language for their own money were denied this right.

The next stage of the legal proceedings was a hearing on the new version of the law in May 2023 as a part of the case No. 2021-45-01. The aim of the plaintiffs in this process was to achieve maximum academic freedom and freedom of entrepreneurial activity in the field of higher education. Therefore, the main arguments were the lack of proper quality of the legislative process; the illogicality of the condition on the quality of programs from the entire thematic block; disrespect for the state language; availability of more effective alternatives, primarily, full state funding of study programs in the Latvian language, at least in state institutions of higher education.

On 28 June 2023, the Constitutional Court of Latvia satisfied the claims of the plaintiffs. The Court ruled that universities have inherent academic freedom and the right to choose the language of instruction is part of this freedom. Restrictions on this freedom, established by law, are inconsistent with the Satversme, since the legislator failed to ensure the proper decision-making process during their adoption. The legislator acted superficially, failed to analyze the situation, did not hold discussions with the education sector, and was inattentive to the previous court decision. Thus, the restriction has no legal basis. In addition, the court pointed to a number of violations of the substance of the regulation. First, this ban does not provide adequate protection of the state language. By requiring only excellent educational programs in English, it allows bad and average ones to be taught in Latvian which constitutes disrespect to the state language. Second, the court for the first time found a violation of the Framework Convention for the Protection of National Minorities and indicated that these restrictions should not apply to philological and cultural programs on the languages of Latvia’s national minorities.

This is the first court decision in Latvia, which applied the Framework Convention for the Protection of National Minorities and found a violation of the rights of national minorities to use their native language in education. Despite the fact that the violation is relatively small, the fact itself is important. In addition, the court put an end to the application of a populist approach, when the goal of protecting the state language justified any restrictions. Until 1 July 2024, the legislator is required to develop a new regulation. This will be an opportunity to create more liberal and, at the same time, more effective legislation, ensuring not only the use of a certain language, but also the quality of science and education.

Elizabete Krivcova, LL.M. is a lawyer and human rights defender based in Riga, Latvia

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