The European Pillar of Social Rights and Higher Education: Assessing the Legal Potential to Create EU Higher Education Policies

The EU adopted the European Pillar of Social Rights (EPSR), also emphasising social policies in the field of (higher) education. However, article 165 of the Treaty on the functioning of the European Union (TFEU) expressly blocks the legal possibilities to develop EU higher education policies leaving it to be an unique domain of Member States. In this paper I firstly demonstrate this blockade is no longer effective and that article 165 has been altered. Students and the European Commission initiated abundant case law by using the freedom of services and European citizenship, although cases were mainly limited to the ‘demand’ side of higher education. The effect was a partial breach of Member State’ sovereignty. Nevertheless, Member States kept responsibility for organisation and content of higher education, thus being in charge for the ‘supply’ side of higher education. However, recent association treaties with Georgia, Ukraine, and Moldova, seem to change Member State’ unique responsibilities for higher education organisation and content. All Member States have ratified these treaties enabling a further development of EU higher education policies. Secondly, I demonstrate the interpretative force of the EPSR on higher education. Member States’ ministers gathered in the Council, the European Parliament and the European Commission signed the EPSR thus articulating large political support. Although the EPSR explicitly not entails an extension of the Union’s powers and tasks as conferred by the Treaties, it does change the ways the Treaties could be read and interpreted. It would not be the first time the EU Court of Justice modifies the course of European integration using an extensive reading of the aims and goals of EU integration. I use analyses of treaties, policy documents, the EPSR and case law, to assess the legal potential to create EU higher education policies.