This article focuses on the EU’s role in setting the framework for higher education
in Europe. The topic has special relevance, as major changes have been made in the
sector in certain member states, like Hungary and Poland, and some of these changes
are connected with the rule-of-law backsliding in these countries. The paper argues
that the European Union should develop a list of fundamental rights that it wants
to enforce in higher education among the member states and that this procedure has
already started in certain instances. On the other hand, as the EU has linked higher
education to single-market regulations, it cannot proceed concerning the issues that
do not have a connection with the market. This inactivity could create ambivalence
in judging the same or similar questions and has the potential to create discriminative
situations. The article claims that, unlike common presumptions, the EU could find
itself competent to act if it would interpret rights in higher education from a fundamental
rights perspective instead of solely protecting market rationality.