1. Foreward

«A University is a place […] whither students come from every quarter for every kind of knowledge; […] a place for the communication and circulation of thought, by means of personal intercourse […] It is the place to which a thousand schools make contributions; in which the intellect may safely range and speculate. It is a place where inquiry is pushed forward,…discoveries verified and perfected, and […] error exposed, by the collision of mind with mind, and knowledge with knowledge»^[1].

Today, universities play a decisive roles in shaping culture and civilisation of modern society, as actors in broader society and as places where intercultural dialogue is put into practice.

Higher education is essential to societies and an important part of its contribution is linked to its democratic mission.

The academic community fulfils this mission through its impact on broader society as well as through teaching, learning and research.

In this regard, academic freedom and institutional autonomy are increasingly important components of contemporary academic life^[2].

However, these fundamental democratic values vary between countries and continents.

In the US, for instance, the focus is largely on academic freedom and its connection to the right to free speech on college campuses^[3].

On the contrary, in Europe the focus has so far largely been on institutional autonomy.
In particular, the autonomy of university is linked to the capacity of higher education institutions to decide on matters such as their organization, financial issues, personnel and curricular policies (in other words, the power of a higher education institution to govern itself without external control, or self-governance), but the degree of freedom of universities varies greatly from country to country^[4].

National higher education systems differ so much that there is no single solution that results in a uniform, universally accepted model in the foreseeable future.

2. The European Union’s competence in the field of education and the rule of soft law

Higher education is traditionally a very domestic issue.

The introduction of a competence of the European Union in the field of education has represented a complicated transition, where attempts have been made, on the one hand, to maintain the national cultural identity and, on the other hand, to encourage the abolition of defensive barriers, through the promotion of the transnational mobility of students and teachers^[5].

The specific chapter of the Treaty on the Functioning of the EU (TFEU) on education, and in particular its article 165 (1)^[6], offers limited competences for the European community.

This provision, introduced by the Maastricht Treaty, acknowledges a role for the EU in educational matters, but limits this role to a complementary and subsidiary one to that of the Member States^[7].

Therefore, the European Union does not have an all embracing policy on higher education, which is certainly true if we only take into account the rules of the Treaty and the obligatory sources of European law.

Nevertheless, if we extend our analysis to the soft law documents (such as a support programmes and the Open Method of Coordination- OMT^[8]), it becomes obvious that the

European Commission has comprehensive and well-elaborated ideas on the proper role of Universities in Europe^[9].

The funding policies, in addition, show a strict interconnection between economic and industrial goals of EU institutions and academic research. Horizon 2020 represents a clear example.

The open method of coordination, that emerged after the Lisbon strategy in 2000, is a mechanism to deliver this policy cooperation in higher education.

The monitored coordination constitutes the “essence” of the Bologna Process^[10] and this instrument works by having individual countries implement the ratified objectives within national law.

With particular reference to autonomy and academic freedom, the OMT could be a new context in which the dialogue between European institutions and Member States find new solutions in order to implement the Bologna Process^[11] and the project of a European Higher Education without asking academic research to show its industrial and economic application and impacts.

In spite of this limiting formal framework, over the last three decades, the EU’s influence in the field of Higher education has constantly increased, causing important changes.

In particular, the Lisbon Strategy encompasses the Commission’s contribution to the intergovernmental Bologna Process, aiming to establish a European Higher Education Area, mainly in the areas of curricular reform and quality assurance.

At the same time, through soft governance processes promoted by the Bologna Process, Eu Lisbon strategy, and later Europe 2020, the EU institutions are imposing a European HE governance based on standards and comparison.

As S. Garben said, «all the reforms seem to be directed at a modernisation of the national higher education systems and institutions, with economic considerations playing an increasingly important role»^[12].

So, education becomes the key to both economic and social sustainability in Europe.

In order to realize the objective of creating a «Europe of knowledge»^[13], universities are pressed to perform their traditional functions (such as teaching and research) more efficiently in an increasingly globalized environment characterized by severe competition.

In most EU countries the numerous higher education reforms are the consequence of the dissemination of New Public management (NPM)^[14].

Indeed, the academic system is one area that has been strongly affected by the implementation of NPM: the rise of the knowledge society, the economic crises, the increased competition and the globalization have put upward pressure.

Overall, it is evident that neoliberal policies and process (such as marketization, competition and management by performance measures) have gained a profound influence over the governance of universities, as well as over the activities of research, teaching and learning within such institution.

And the European context certainly has influenced also National legislators.

3. Effect on Italian academic work and the academic profession

The italian university system has also been inspired by NPM, and this aspect influences the relationship betwen centralism and autonomy, and in particular the relationship between State and University^[15].

In December 2010 a comprehensive reform (l. n. 240/2010, the so called “Gelmini legislation”) changed the institutional governance and internal organization of Italian state universities^[16].

Italy adopted a performance-based system for funding universities which is centered on the results of a national research assessment exercise, conducted by the Italian governmental agency for evaluation of universities and research (ANVUR)^[17].

The declared objective of the university reform is, as some authors said, «to improve the operative capabilities and the impact of research also thanks to autonomy, a principle constitutionally guaranteed, but […] The results of the reform and the ways in which the evaluation system has been carried out have brought […] to claim that in reality the level of autonomy of the universities instead of increasing has been compressed in favor of the State which uses evaluation as a means to govern the university world: from the “Controller State” we move on to the “Evaluation State”»^[18].

In order to provide an example, we can make reference to the principal role of MUR^[19] (Ministry of Universities and Research) in defining the criteria and the evaluation parameters: the relationship between ANVUR and MUR represents certanly an obstacle to the respect of freedom of science in terms of prohibition of political interference.

Another aspect that needs to be highlighted concerns the techical and methodological choices.

Both the adoption of quantitative parameters and standards and the selection and progression of the personal academic career are open to criticism from multiple points of view, not only for the evaluation of research quality (VQR^[20]), but also for the classification of scientific journals, the qualification of candidates for national scientific qualification (ASN^[21]), the teaching quality assurance procedure (self assessment, periodic evaluation, accreditation – AVA^[22]) .

Firstly, quantitative method for the evaluation of research performance is unable to attribute the value of the results of scientific research in humanities and social sciences (soft sciences).

Secondly, the current evaluation system increases negative behaviour in the academic world, because it encourages standardization and homologation of knowledge.

Indeed, in recent years due to the financial problems arising from the large public debt, the pressure to reduce public spending has been perceived as more and more urgent, and has put even more pressure on the higher education system for efficiency^[23].

So Anvur’s evaluation determines the allocation of public funding to universities and research institutes and this is a consequence of increasing pressures on the state budget.

This transformation of the university from being government funded to becoming market-oriented is affecting various aspects of creation and transmission of knowledge and is bound to create a series of conflicts.

According to the economic theory of incentives^[24], behaviour is primarily extrinsically motivated: individuals are more motivated to perform activities if they receive a reward, rather than simply because they enjoy the activities themselves.

But a large literature in psychology^[25] and more recently in economics^[26], has argued that monetary incentives (rewards) and punishments are often counterproductive, because they undermine «intrinsic motivation», which represents a self-determined behaviour instigated by an individual’s personal willingness and genuine desire^[27].

Intrinsic motivation certainly has a central role in academic research.

Self-determination theories therefore suggest that the choice to link the evaluation to a financial rewards system is destined to lead in the long term to a weakening of the intrinsic motivation of academics evaluated, increasing the risk of a standardization of knowledge.

4. Conclusion

Traditionally the academic profession played a strong role in the internal steering of their institution, whereas academic self-governance has been replaced by top-down management practices in many higher education systems.

The lack of adequate government budgetary support of the higher education is creating acute financial pressure on universities; so universities are increasingly looking to the market for revenue generation.

So, in different European countries universities are transforming into corporate universities: students are viewed as “customers” and teachers as “service providers”.

In this vision, universities are seen as institutions in a quasi-market in which political authority appoints external agents and imposes incentive to align to its goals the interests of the universities and of those who work there.

In this regard, it is very important remember that academic freedom is a precondition for the advancement of knowledge, but the quality of the advancement of knowledge is interdependent with the level of academic freedom.

For a long time, University has been considered to be overly detached from society; the image frequenlty used is that of a community enclosed in its “Ivory Tower”^[28].

However, the idea of University as an Ivory Tower could also be partly reclaimed as something to be defended.

University as a place for developing knowledge whose governance is not influenced by economic use but by the individual as part of a cohesive community with a common vision^[29] and a sense of belonging, where diversity is valued, not hindered.

1. J.H. Newman, Historical Sketches, vol. III, Basil Montagu Pickering, Piccadilly, London, 1873, p.15-17. ↑
2. See S. Noorda, P. Scott, M. Vukasovic (edited by), Bologna Process Beyond 2020. Fundamental Values of the EHEA. Proceedings, Bononia University Press, Bologna, 2020; B. Broucker B., V.M.H. Borden, T. Kallenberg, C. Milsom (edited by), Responsibility of Higher Education Systems. What? How? Why?, Brill, Boston, 2020. ↑
3. See R.J. Tepper, C.G. White, Speak no Evil: Academic Freedom and the application of Garcetti v. Ceballos to Public University Faculty, in Catholic University Law Review, 1, 2009, p. 125-182; L. Alexander, Academic Freedom, in University of Colorado Law Review, 4, 2006, p. 883-900; W.H. Daughtrey Jr, The Legal nature of academic freedom in United States colleges and universities, in University of Richmond Law Review, 25, 1990, p. 233-271; R.J. Meyer, Academic Freedom in the United States, in British Journal of Educational Studies, 1, 1967, p. 28-39. For discussion of the development and meaning of the concept of academic freedom generally, see R. Hofstadter, W.P. Metzger, The Development of Academic Freedom in the United States, Columbia University Press, New York, 1955; L. Joughin (edited by), Academic Freedom and Tenure, University of Wisconsin Press, 1969. ↑
4. The analysis of the different academic models in Europe can be found in R. Cavallo perin, G. M. Racca, The plurality and diversity of integration models: the italian unification of 1865 and the european union ongoing integration process, in D. Sorace, L. Ferrara, I. Piazza (edited by), The changing Administrative Law of all Eu member State: the Italian Case, Springer, Cham, Giappichelli, Torino, 2020, p. 5-22; C. Fraenkel-Haeberle, D.U. Galetta, K.P. Sommermann (edited by), Europäisierung und Internationalisierung der nationalen Verwaltungen im Vergleich. Deutsch-italienische Analysen. Schriften zum Europäischen Recht, Band 178, Duncker & Humblot, Berlin, 2017; R. Cavallo perin, G. M. Racca, C. Barbati (edited by), Il reclutamento universitario in Europa, Editoriale Scientifica, Napoli, 2016; A. Baraggia, M. Del Signore, L. Galli, B. Rabai, Building Bridges: towards cohesion through the European University System, in www.ius-publicum, 2, 2016, p. 1-46; M. Cocconi, Il diritto europeo dell’istruzione. Oltre l’integrazione dei mercati, Milano, 2006, and the bibliography cited therein. ↑
5. In particular, the «Convention on the recognition of qualifications concerning higher education in the european Region» of 11 April 1997, also referred to as Lisbon Convention, and the «Joint Declaration of Harmonisation of the Architecture of the European Higher Education System» of 25 May 1998, so called Sorbonne declaration -which clarifies that «Europe is not only that of the Euro, of the banks and the economy: it must be a Europe of knowledge as well»- are crucial steps in the process of enhancing European cooperation in this field. These papers inherit the principles laid in the «Magna Charta Universitatum» presented in Bologna in 1998, in which is stated that «the university is an autonomous institution at the heart of societies differently organized because of geography and historical heritage; it produces, examines, appraises and hands down culture by research and teaching». For a focus on free movement in Europe, see J. Ziller, Free Movement of European Union Citizens and Employment in the Public Sector, in FMW – Online Journal on free movement of workers within the European Union, august 2011, n. 2, p. 6-26. ↑
6. «The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function». ↑
7. See also art. 6 TFUE. ↑
8. The OMC does not result in EU legislation, but is a method of soft governance which aims to spread best practice and achieve convergence towards EU goals in those policy areas which fall under the partial or full competence of Member States. Since binding EU rules cannot be used as the means to achieve convergence among Member States in such cases, OMC relies on other mechanisms. These mechanisms involve establishing guidelines, quantitative and qualitative indicators and benchmarks, and national and regional targets, backed by periodic evaluations and peer reviews. The evaluations are aimed at helping Member States learn from one another and consequently improve their domestic policies. However, ‘peer pressure’ and ‘naming and shaming’ are terms often used to describe this process of learning and improvement, and these may hint at processes of greater weight than the apparently ‘soft’ nature of the governance implies. See, in this sense, S. Del Gatto, Il metodo aperto di coordinamento. Amministrazioni nazionali e amministrazione europea, Jovene editore, Napoli, 2012; N. Barbera (edited by), Nuove forme di regolazione:il metodo aperto di coordinamento delle politiche sociali, Giuffrè, Milano, 2006. ↑
9. On the role of soft law, see A. Somma (edited by), Soft law e hard law nelle società postmoderne, Giappichelli, Torino, 2009; M. Ramajoli, Soft law e ordinamento amministrativo, in Diritto amministrativo, 2017, 1, p. 147-162. ↑
10. The Bologna Process launched with the Bologna Declaration of 1999 aimed at the creation of a new space of policy dialogue andpractice in higher education, resulting in the establishment of the EuropeanHigher Education Area as of 2010. ↑
11. The European Network of Quality Assurance Agencies (ENQA) plays an important role in the implementation of the Bologna Declaration. ↑
12. S. Garben, The future of Higher Education in Europe: The case for a stronger base in EU Law, in LEQS Paper, 50, 2012, p. 6. ↑
13. Communication from the Commission of 5 February 2003 (The role of the universities in the Europe of knowledge [COM(2003)] 58 final). ↑
14. Proponent of the NPM approach argue that private sectore management practices are required in order to maximise the efficiency and quality of public sector institutions. ↑
15. In Italy, there is a constitutional rank: art. 33, on which see S. Cassese, A. Mura, Commento agli artt. 33-34, in G. Branca (edited by), Commentario della Costituzione, Zanichelli, Bologna, 1976, p. 210 s.; L. Mazzarolli, L’autonomia universitaria nella Costituzione, in Diritto societario, 1980, p. 229 ss.; A.M. Sandulli, L’autonomia delle università statali, now in Scritti giuridici, IV, Jovene ed., Napoli, 1994, p. 441 ss.; L. Mazzarolli, Professori universitari, Università e garanzia costituzionale dell’autonomia universitaria, in Quaderni Costituzionali, 1997, 1, p. 77 ss., A. D’Atena, Profili costituzionali dell’autonomia universitaria, in Giur. Cost., 1998, p. 2978 ss. ↑
16. See A. Marra (edited by), Il diritto delle Università nella giurisprudenza a dieci anni dalla legge n. 240/2010, Giappichelli, Torino, 2020; E Chiti, G. Gardini, A. Sandulli, The Italian legal order and the making of a national cultural identity, in D. Sorace, L. Ferrara, I. Piazza (edited by), The changing Administrative Law of all Eu member State: The Italian Case, Springer Nature Switzerland AG, Switzerland, 2020, p. 171-196; A. marra (edited by), L’autonomia universitaria del nuovo millennio, Aracne ed., Roma, 2020; C. Barbati, Il sistema delle autonomie universitarie, Giappichelli, Torino, 2019; D. Borrelli, M. Stazio, La «grande trasformazione» dell’università italiana, in Rivista Trimestrale di Scienza dell’Amministrazione, 2018, 1, p. 1-19; A. Sandulli, Autonomia “negata” e autonomia “abusata” nelle università, in Munus, 2017, 3, p. V-XIV; D.U. Galetta, Autonomia universitaria e processi di internalizzazione degli Atenei dopo la legge n. 240 del 2010: una “anglicizzazione” necessaria? Riflessioni critiche dalla prospettiva del diritto (amministrativo), in Giustamm, febbraio/marzo 2013, p. 1-10; G. Piperata (edited by), L’università e la sua organizzazione. Questioni ricorrenti e profili evolutivi, Editoriale Scientifica, Napoli, 2014; F. Roversi Monaco, G. Caia (edited by), Università e riforme, Bononia University Press, Bologna, 2014; E. Picozza, A. Police (edited by), Competizione e governance del sistema universitario, Giappichelli, Torino, 2013; E. Carloni, P. Forte, C. Marzuoli, G. Vesperini, Il sistema universitario in trasformazione, Editoriale Scientifica, Napoli, 2011; G. Della Cananea, C. Franchini (edited by), Concorrenza e merito nelle Università. Problemi, prospettive e proposte, Giappichelli, Torino, 2009. ↑
17. Anvur was legally established in 2006 but started to operate in 2011. ↑
18. R. Fontana, D. Borrelli, E. Nemmo, C. Sofia, E. Valentini, Reformism and Evaluation in the Field of Social and Political Sciences. Consequences for the Academic Community, in Italian Journal of sociology of education, 2018, 2, p. 112. See also C. Pinelli, Autonomia universitaria , libertà della scienza e valutazione dell’attività scientifica, in Munus, 2011, 3, p. 567 ss. and critically on the research assessment and the power of ANVUR (an agency whose members are appointed by the Ministry) M. Ramajoli, Stato valutatore, autonomia universitaria e libertà di ricerca, in Giorn. Dir. Amm., 2014, 3, p. 313. ↑
19. Before MIUR, now MUR (see d.l. n. 1/ 2020). ↑
20. The VQR aims at the periodic assessment of universities and public research bodies by evaluating publications. It has also a direct impact on the funding, which is regulated by the so called Ordinary Funding Fund (Fondo di finanziamento ordinario, hereafter FFO). ↑
21. The ASN represents a prerequisite for access to the first and second layers of the academic career (associate and full professor). Access to faculty positions takes place through competitions issued by each individual university, and open exclusively to candidates holding the ASN. ↑
22. There is a set of qualitative requirements based on which the Commission of Evaluation Experts (CEV) checks respectively: a) at central level, the vision, the strategies and the University policies for teaching, research and the third mission; b) at a peripheral level, the methods by which Quality Assurance is carried out by the Degree courses in teaching and by the Departments for research and third mission.The main phases of periodic accreditation are three: 1. examination of the documentation indicated by the University in the form drawn up by the University; 2. on-site visit at the University under evaluation; 3. drafting of the Final Report. ↑
23. On this theme see G. clemente di San luca, Valutazione della ricerca, valutazione delle riviste e cooptazione universitaria, in Federalismi, 2017, 4, p. 1-10; A. Sandulli, La classificazione delle riviste scienti che e revisione tra dispari, in Giornale di Diritto Amministrativo, 2017, 4, p. 436-440; A. Marra, La valutazione del sistema universitario e il ruolo dell’ANVUR, in G. Piperata (edited by), L’università e la sua organizzazione. Questione ricorrenti e profili evolutivi, Napoli, 2014, 87 ss.; M. ramajoli, Stato valutatore, autonomia universitaria e libertà di ricerca, in Giornale di Diritto Amministrativo, 2014, 3, 313- 321. F. denozza, La ricerca scientifica e le tecniche di valutazione, in Giornata di Studio “Autonomia universitaria e rappresentanza delle comunità accademiche, dei saperi e delle discipline”, Roma, 19 settembre 2011, p. 2 ss. ↑
24. See C. Althaus, The application of agency theory to public sector management, in G. Davis, B. Sullivan, A. Yeatman, The New Contractualism?, in Centre for Australian Public Sector Management , 1997, p. 137-153; D.E.M. Sappington, Incentives in principal-agent relationship, in Journal of economic perspectives, 1991, 2, p. 45-66; J. Stiglitz, Principal and agent, in J. Eatwell, M. Milgate, P. Newman (edited by), The New Palgrave Dictionary of Economics, vol. 3, 1987, Macmillan, London, p. 966-971; S.J. Grossman, O.D. Hart, An Anlysis of the principall –agent problem, in Econometrica, vol 51, 1983, p. 7-46; S. Ross, The economic theory of agency. The principal’s problem, in American Economic Review, 1975, 2, p. 134-139. ↑
25. For R. M. Ryan-E. L. Deci, Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Well-Being, in American Psychologist, 2000, 1, p. 70 «extrinsic motivation is a construct that pertains whenever an activity is done in order to attain some separable outcome. Extrinsic motivation thus contrasts with intrinsic motivation, which refers to doing an activity simply for the enjoyment of the activity itself, rather than its instrumental value». See also R. Dessi, A. Rustichini, Strong intrinsic motivation, in TSE Working Paper, 2015, 15, p.1-23; R. M. Ryan-E. L. Deci, Intrinsic end extrinsic motivations: classc definitions and new direction, in Contemporary educational psychology, 2000, 1, p. 56-67; B. Frey, On the Relationship Between Intrinsic and Extrinsic Work Motivation, in  International Journal of Industrial Organization, 1997, 15, p. 427-439; D. Kreps, Intrinsic Motivation and Extrinsic Incentives, in American Economic Review, 1997, 2, p. 359-364. ↑
26. See R. Bénabou, J. Tirole, Intrinsic and Extrinsic Motivation, in The Review of Economic Studies, 2003, 3, p. 489-520. ↑
27. On the contrary, extrinsic motivation refers to a less self-determined behaviour geared towards a separate external reward or personal benefit from an external source. ↑
28. In this sense, v. S. Shapin, The Ivory Tower: The history of a figure of speech and its cultural uses, in British Society for the History of science, 2012, 1, p. 1-27. ↑
29. See in this perspective U. Pototschnig, L’Università come società, in Riv. giur. Scuola, 1976, p. 269 and in Scritti scelti, Cedam, Padova, 1999, p. 817 and M. Del Signore, University as society, in A. Baraggia, M. Del Signore, L. Galli, B. Rabai, Building Bridges: towards cohesion through the European University System, cit., p. 2 ss. ↑