The freedom of establishment and freedom of movement of services between the EU and the UK have now ended.
How does this affect transnational education?
The agreement includes provisions that offer other, more limited, access for privately funded UK education services to EU member states. Publicly funded education remains the exclusive competence of member states and the provisions of the agreement do not apply to them.
Existing transnational education provision (TNE)
For existing TNE provision, the agreement establishes that any limitations need to be consistent with those applied to local and/or third country providers (depending on the type of TNE model and the specific country).
In practice this means that UK universities can continue providing education through TNE in EU countries, under similar conditions to those granted to local and/or third country providers.
Protection applies except in those cases where member states have introduced ‘reservations’ or exceptions. For example, foreign higher education institutions cannot establish subsidiaries in the territory of Bulgaria but may open faculties, departments, institutes and colleges within the structure of Bulgarian high schools and in cooperation with them.
Future TNE provision
For future TNE provision, the same protection applies except where member states have introduced reservations.
Six member states have introduced ‘blanket’ reservations: they reserve the right to adopt or maintain any measure in respect of the supply of privately funded higher education services. These member states are: Austria, Bulgaria, Cyprus, Finland, Malta and Romania.
A further four member states have introduced reservations applying only to certain aspects of provision (eg composition of the board of directors): Czech Republic, Slovakia, Slovenia and Sweden.
There are broadly three situations in which conditions to UK TNE provision could be applied :
In EU member states that have not registered reservations, conditions can be applied on a non-discriminatory basis to existing and future TNE provision. Those conditions cannot constitute a limitation around market access, local presence or national treatment as described in the agreement.
In EU member states that that have registered specific reservations, conditions to existing or future TNE provision can be applied following the text of the reservation for either existing or future provision (e.g. in the case of Bulgaria, UK universities can open faculties or colleges within local high schools, but not independent branch campuses).
In EU member states that have registered ‘blanket’ reservations for future provision, any conditions could be applied in the future, including discriminatory ones out of the scope of the agreement.
In practice, this means that depending on the specific member state, conditions could be imposed on legal form, licencing or national accreditation, nationality requirements and recruitment of foreign academic personnel, student numbers, non-recognition of qualifications awarded, access to government support or qualification of students for benefits or financial assistance, among others.
Movement of people
In terms of the movement of people, the agreement grants minimum conditions that member states are bound to respect for short-term mobility (which typically affects fly-in faculty). As in the case of trade in services, there are reservations or exceptions. For instance, employees in the non-profit and higher education sectors are excluded from the provisions applicable to the entry and stay of various forms of short-term visitors such as Contractual Service Suppliers and Independent Professionals in certain member states.
In practice, this means that in those member states that have introduced reservations, conditions could apply to higher education staff travelling to EU member states to set up or quality assure TNE arrangements, or to provide instruction. These could relate to immigration requirements, quotas, nationality or residence requirements and labour market tests among other. Immigration requirements need to be checked before engaging in short-term visits to EU member states.
Detailed briefing on transnational education
For more detailed information, we have provided a full briefing on the implications on transnational education.
