Examining language of instruction in Malta through ENQA recommendations, stakeholder consultation, academic freedom, regulatory transparency and European case law on proportionate limits to official-language requirements in private education and training.

MFHEA Communication 05/2026 ended the absolute restriction introduced by Commumnication 10/2025, but created a compulsory approval framework for additional languages. The debate is therefore not simply whether Maltese providers may teach in another language. It concerns how a public authority designs binding accreditation conditions, whose views inform them and how the resulting decisions are explained.

The policies affect programme design, staffing, admissions, resources, fees, monitoring and suspension. Measures of that breadth require a transparent institutional process, an evidential basis and a demonstrable connection between each obligation and the risk it is intended to control.

Language of instruction in Malta and the legal architecture

The regulation of additional languages of instruction operates within Malta’s broader licensing and accreditation framework under Chapter 607 and S.L. 607.03. These instruments confer on MFHEA broad powers to accredit providers and programmes, impose licence conditions, issue implementing guidelines and safeguard educational quality and learner protection. They do not, however, expressly establish English or Maltese as mandatory baseline languages, nor do they set out the detailed requirements now applicable to additional languages of instruction.

S.L. 607.03 assigns licensing, accreditation and quality-assurance functions to the Quality Assurance Committee, whose decisions require adoption by the Authority for their validity and enforcement. Chapter 607 places responsibility for the Authority’s affairs and business with the Board, while the CEO is responsible for executive administration and may exercise powers delegated by the Board.

The CEO’s signature on Communication 05/2026 does not, in itself, establish that the policy was adopted without prior QAC consideration, Board approval or a valid delegation of authority. However, the published documents do not identify the approving body, the date and form of adoption, the evidence considered, or the legal basis on which the detailed language conditions were introduced. The resulting concern is therefore one of regulatory provenance, transparency and legal character, rather than a definitive assertion that the policy is invalid.

Consultation and the ENQA findings

No public consultation process has been identified for the policies. There is no published consultation paper, response report or impact assessment explaining why these requirements were preferred to less restrictive alternatives. That matters in light of the 2024 ENQA external review of MFHEA.

ENQA found MFHEA partially compliant with ESG 2.2 on methodologies fit for purpose, ESG 2.5 on criteria for outcomes and ESG 2.6 on reporting. Its panel suggested that MFHEA should engage a broader range of stakeholders, relevant staff and the student viewpoint in designing and improving accreditation methodologies.

The language policies closely resemble a new accreditation methodology: they create a separate review, new evidence requirements, fees and withdrawal grounds. Introducing that framework without publicly documenting input from providers, students, employers, professional bodies or linguistic experts appears difficult to reconcile with ENQA’s direction.

This does not prove that consultation was legally mandatory or that none occurred internally. It shows that the Authority has not publicly demonstrated how affected stakeholders shaped a policy with material academic and commercial consequences.

Transparency of criteria and decisions

ENQA also recommended that criteria leading to final accreditation decisions be clearly established, published and communicated to promote transparency and consistency.

The policies refer to educational appropriateness, public interest, linguistic equivalence and availability of expertise, but do not explain how those concepts will be weighted or what evidence will be sufficient. Terms such as “commonly used”, “legitimate educational or societal need”, “Maltese context” and “sufficient academic resources” confer substantial discretion.

Transparency is more than publishing the policy. It requires an intelligible test, reasoned individual decisions and confidence that comparable applicants will receive comparable treatment.

A tension with MFHEA’s European message

In March 2026, CEO represented Malta at the Council of Europe’s ninth CDEDU plenary session. MFHEA’s account lists academic freedom, student rights and “language policy and the growing dominance of English” among the issues discussed.

The same article quotes the CEO as saying that “a more gradual and consultative approach is advisable” in relation to European work on academic freedom. The statement was not specifically about Malta’s language policy and should not be presented as a direct contradiction.

It nevertheless reveals an institutional tension. Only months later, mandatory policies entered into force immediately, preserved English and Maltese as compulsory baseline versions and were not accompanied by a publicly documented consultation. Gradualism, consultation, linguistic diversity and academic freedom were equally relevant to the domestic process.

Academic freedom and proportionality

MFHEA may verify whether a programme is coherent, properly staffed and protective of learners. It should be more cautious when quality control becomes prescription of the language through which academic content is taught.

Language is part of curriculum design, teaching methodology, disciplinary identity and access to knowledge. In professional education it may reflect the language of practice, placements and the intended labour market. Academic freedom does not remove MFHEA’s jurisdiction, but requires restrictions to be necessary, evidence-based and no more intrusive than required.

What European courts actually say

European case law does not create an absolute right to teach in any language. It establishes a proportionality framework.

In C-391/20, Boriss Cilevics and Others, the Court of Justice held that requiring higher-education programmes to use the state’s official language restricts freedom of establishment. Protection of national identity and the official language may justify the restriction only where it is necessary, proportionate and accompanied by appropriate exceptions.

The Latvian Constitutional Court invalidated official-language restrictions affecting private higher-education institutions under protections for education and academic freedom. In 2023, it also held restrictions unconstitutional insofar as they prevented private institutions from delivering programmes in official EU languages.

The Court of Justice’s 2026 judgment in C-48/24, Vilniaus tarptautine mokykla, reinforced the need for flexibility: an official-language requirement for staff at a private international school could fail where no exceptions or mitigation were available.

Other judgments support the same logic. Groener accepted a requirement linked to a genuine language policy, subject to proportionality. Angonese rejected reliance on one local certificate where competence could be proved equivalently. Las rejected exclusive official-language formalities where a less restrictive multilingual solution existed.

Italy’s Constitutional Court judgment 42/2017 arose in the opposite context but is instructive. It rejected the general exclusion of Italian from whole categories of university courses while allowing parallel foreign-language programmes and individual courses. Legitimate language objectives do not justify undifferentiated exclusivity.

The test MFHEA should be able to meet

For each policy condition, MFHEA should be able to explain the specific quality risk, the evidence that it exists across relevant levels and disciplines, and why less restrictive alternatives are insufficient.

Why is a fully operational English or Maltese version necessary rather than a regulatory master file? Why is B2 appropriate for every learner? Why must resources exist in the delivery language when professional literature may be primarily English? Which stakeholders were consulted? What exceptions are available? How will similar cases be decided consistently?

Clear answers would make the policy easier to defend and implement. Reliance on broad discretion and duplicated obligations makes it more vulnerable on proportionality, predictability and equal treatment.

MFHEA may regulate language-related quality risks, but should do so through the consultation, transparency and evidence it expects from providers.

The absence of a publicly documented consultation, limited explanation of decision criteria and immediate imposition of substantial obligations sit uneasily with ENQA’s recommendations and MFHEA’s own public support for gradual, consultative policy development.

The appropriate response is a transparent stakeholder review and a risk-based framework that protects learners without unnecessarily narrowing academic and professional education.