despite the many efforts made in this area, previous
reporting has shown that actual recognition practice
commonly falls short of expectations with regard to
transparency, consistency and fairness”.4
Accordingly, the EHEA Ministerial Conference in
Paris 2018 confirmed that it will “work to ensure that
comparable higher education qualifications obtained in
one EHEA country are automatically recognized on the
same basis in the others for the purpose of accessing
further studies and the labour market.”5
These statements – together with current evaluations
of recognition practice – illustrate that the desired
“automatic recognition” is not reality yet.
Therefore this article will outline the status quo of
legal rules concerning recognition in the EHEA, identify
some selected problems with the implementation of
these rules and finally try to conclude whether and how
they can be solved. In doing so it will focus on problems
occuring when recognition for the purpose of further
Renate Penßel
The Recognition of Higher Education Diplomas and
Qualifications
An overview of the legal framework and discussion of prevailing
obstacles for „automatic“ academic recognition from the perspective
of German law1
1 This article is based on a presentation the author held at the
„Second Vienna Conference on Higher Education Law and the
Management of Sciences“ in February 2019, hosted by the Institute
for European and International Higher Education Law, SFU
Vienna. The style of a presentation is partly kept.
2 European Commission/EACEA/Eurydice (ed.), The European
Higher Education Area in 2018: Bologna Process Implementation
Report, 2018, p. 13.
3 Bologna Process Implementation Report (fn. 2), p. 142.
4 Ibid.
5 European Higher Education Area Ministerial Conference 2018,
Paris Communiqué, 25th of May 2018, http://www.ehea.info/
media.ehea.info/file/2018_Paris/77/1/EHEAParis2018_Communique_
final_952771.pdf (15.2.2020), p. 2. Therein the Ministerial
Conference refers to the objective, formulated within the
Yerevan Communiqué 2015, http://ehea.info/media.ehea.info/
file/2015_Yerevan/70/7/YerevanCommuniqueFinal_613707.pdf
(15.2.2020), that „by 2020 (…) automatic recognition of qualifications
(should have) become a reality“; s. also its commitment
11 „to ensure that qualifications from other EHEA countries are
automatically recognized at the same level as relevant domestic
qualifications“, p. 5.
Ordnung der Wissenschaft 2020, ISSN 2197–9197
1 0 2 O R D N U N G D E R WI S S E N S C H A F T 2 ( 2 0 2 0 ) , 1 0 1 – 1 1 4
6 The author follows those who argue that for activities in the field
of (regular, i.e. not extra-occupational) higher education, Art.
165, not Art. 166 TFEU, is pertinent (see e.g. Ruffert, in: Calliess/
Ruffert (eds.), EUV/AEUV, 5th ed., 2016, comment 12 seq. with
further references concerning this dispute, also to the opposite
view).
7 See also e.g. Niedobitek, in: Streinz (ed.), EUV/AEUV, 3rd ed.,
2020, Art. 165 comment 61; Ruffert, in: Calliess/Ruffert (eds.),
EUV/AEUV, 5th ed., 2016, comment 22.
8 In this respect it would not make a difference if in matters of
higher education Art. 166 instead of Art. 165 TFEU would be the
appropriate provision: Art. 166 TFEU also limits the competence
of the EU to „support“ and „supplement“ (see paragraph 1) and
excludes any harmonization of the laws and regulations of the
Member States.
9 Garben, The Bologna Process: From a European Law perspective,
European Law Journal, Vol. 16, No. 2, 2010, pp. 186 (193 seq.);
referred in Gideon, The position of higher education institutions
in a changing European context, JCMS 2015, Vol. 53, No. 5,
pp. 1045 (1047).
10 It is doubtful whether this would be lawful, because those measures
based on Art. 115 TFEU would undermine the restrictions
formulated in Art. 165 I, IV TFEU. Whereas Garben, The Bologna
Process (fn. 9), pp. 193 seq. argues against an interpretation
of Art. 165 IV TFEU as an absolute limitation to harmonization,
Hablitzel, Harmonisierungsverbot und Subsidiaritätsprinzip im
europäischen Bildungsrecht, DÖV 2002, 407 (409) argues for it.
studies is sought, because, as the following examination
of the legal framework and an analysis of the current
jurisdiction in Germany will illustrate, in this field
hinderances for “automatic” or even generous recognition
are still significant and even bigger than in at least some
constellations in which recognition for the access to the
labour market is sought.
For that purpose, the article will first (I.) give an
overview of the current legal framework regulating the
recognition of higher education qualifications by naming
the most important legal sources and illustrating their
main content. Second (II.), it will demonstrate some
difficulties in the implementation of the rules concerning
academic recognition from the perspective of German
law. In a third and final step (III.), it will conclude
whether it is possible to enhance academic recognition
by correct application or better implementation of
existing rules and whether additional measures are
needed to reach the desired level of recognition.
I. The main sources of law – an overview
To identify the relevant legal sources, one has to
distinguish between the two already mentioned different
aims of recognition of higher education qualifications:
between the recognition for the purpose of further
higher education (which shall from now on be
abbreviated as “academic recognition”) and the
recognition for the access to employment activity (which
shall from now on be called “professional recognition”).
- Provisions concerning recognition for the purpose of
further higher education (Academic Recognition)
Let us first have a look at the provisions concerning
recognition for the purpose of further higher education:
a) European Union law
In EU primary law we can find two articles that explicitly
deal with the recognition of higher education
qualifications. One of them is Art. 53 TFEU. It is part of
the chapter dedicated to the freedom of establishment
but is according to Art. 62 TFEU also applicable for the
chapter concerning the freedom of services. It enables
Parliament and Council to issue directives for the mutual
recognition of qualifications in order to make it easier
for persons to take up and pursue activities as selfemployed
persons. Art. 53 TFEU can thus only be used as
a legal basis for provisions that deal with recognition for
the purpose of self-employment. Acts on academic
recognition cannot be based on it. The same applies to
the corresponding provision within the chapter
concerning the free movement of workers, Art. 46 TFEU.
The other article that explicitly deals with the issue of
recognition of qualifications is Art. 165 TFEU:6 According
to paragraph 2, the Union shall aim at “encouraging
mobility of students and teachers, by encouraging, inter
alia, the academic recognition of diplomas and periods
of study”. For systematic reasons, all activities based on
Art. 165 paragraph 2 must respect the restriction
formulated in paragraph 1, which states that the EU is
only allowed to encourage cooperation between its
member states and to support and supplement their
action while fully respecting the responsibility of the
Member States for the content of teaching and the
organisation of education systems. Therefore and due to
the limitation explicitly formulated in its paragraph 4,
Art. 165 TFEU cannot be the basis for any kind of directly
harmonizing acts7 and requires strict subsidiarity.8
So far, the EU has also not used other, more general
legal bases for directives on recognition. Although
proposed in legal scolarship9 up to now the EU has
abstained from issuing directives on the basis of Art. 115
TFEU.10 The use of the extraordinary competence
provided in Art. 352 TFEU is excluded through its
paragraph 4 in conjunction with Art. 165 paragraph 4
TFEU.
Obviously the member states opted to achieve better
cooperation through soft law instruments or promotional
Penßel · Higher Education Diplomas and Qualifications 1 0 3
11 Council Directive 2003/109/EC of the 25th of November 2003,
OJ L 16, 23.1.2004, p. 44.
12 Mostly it is argued that Art. 21 II EuChFR does not apply to
third country nationals (see e.g. Hölscheidt, in: Meyer/Hölscheidt
(eds.), Charta der Grundrechte der Europäischen Union, 5th
ed., 2019, Art. 21, comment 60; Jarass, in: Jarass (ed.), Charta
der Grundrechte der EU, 3rd ed., 2016, comment 42; Martin, in:
Kellerbauer/Klamert/Tomkin (eds.), The EU Treaties and the
Charter of Fundamental Rights, 2019, Art. 21 ChFR comment 10,
Art. 18 TFEU comment 3; von der Decken, in: Hesselhaus/Nowak
(eds.), Handbuch der Europäischen Grundrechte, 2nd. ed., 2020,
§ 49 comment 41), as (according to Art. 52 II EUChFR) it has to
be interpreted in the same sense as Art. 18 TFEU, which shall also
only be applicable to EU citizens (see e.g. CJEU Case C‑291/09 –
Guarnieri; Martin, in: Kellerbauer/Klamert/Tomkin (eds.), The
EU Treaties and the Charter of Fundamental Rights, 2019, Art.
18 comment 3; von der Decken, in: Hesselhaus/Nowak (eds.),
Handbuch der Europäischen Grundrechte, 2nd ed. 2020,
§ 49 Rn. 19). Others argue that the character of Art. 21 II EUCh-
FR as a fundamental right contravenes an absolute limitation on
EU citizens, see Kugelmann, in: Merten/Papier (eds.), Handbuch
der Grundrechte in Deutschland und Europa, Vol. VI/1, 2010, §
160 comment 52.
13 See e.g. CJEU Case C‑147/03 – Commission vs. Austria, EuZW
2005, 465, para. 41; Epiney, in: Calliess/Ruffert (eds.), EUV/
AEUV, 5th ed., 2016, Art. 18 comment 12; Martin, in: Kellerbauer/
Klamert/Tomkin (eds.), The EU Treaties and the Charter of
Fundamental Rights, 2019, Art. 18 TFEU comment 17; von der
Decken, in: Hesselhaus/Nowak (eds.), Handbuch der Europäischen
Grundrechte, 2nd ed., 2020, § 49 comment 26.
14 Settled case law, see e.g. CJEU Case C‑85/96 – Martinez Sala,
para. 63; Case C‑274/96 – Bickel und Franz, EU:C:1998:563;
Epiney, in: Calliess/Ruffert (eds.), EUV/AEUV, 5th ed., 2016,
Art. 18 Rn. 2; Martin, in: Kellerbauer/Klamert/Tomkin (eds.),
The EU Treaties and the Charter of Fundamental Rights, 2019,
Art. 18 TFEU comment 23; von der Decken, in: Hesselhaus/Nowak
(eds.), Handbuch der Europäischen Grundrechte, 2nd ed.
2020, § 49 comment 16.
15 The CJEU stated various times (see e.g. Case C‑293/83 – Gravier,
EU:C:1985:69; Case C‑147/03 – Commission vs. Austria) that
the conditions determining the access to professional education,
including professional education at higher education institutions,
fall into the ambit of the treaty. In his decision from the 1. of
July 2004 – C‑65/03 para. 25 – the CJEU explicitly mentioned
Art. 149 II dash 2 (the provision preceding Art. 165 II, which
shared its wording) to argue that the scope of the Treaty is given.
Furthermore according to several decisions of the CJEU (see e.g.
Case C‑274–96 – Bickel und Franz, EU:C:1998:563, para. 15; Case
C‑333/13, EU:C:2014:2358 = NVwZ 2015, 145, para. 58 – Dano)
the relevance of the right of free movement conferred in Art. 21
TFEU is sufficient to constitute a situation governed by EU law
(see also Martin, in: Kellerbauer/Klamert/Tomkin (eds.), The EU
Treaties and the Charter of Fundamental Rights, 2019, Art. 18
TFEU comment 13).
programs (like the Erasmus+ Program) rather than
through compulsive rules. Therefore we can conclude
that EU legislation currently does not provide any
criteria or procedural obligations for academic
recognition.
However, European Union Law in certain respect
provides – as is generally known – the right to equal
treatment:
aa) Third country nationals
At first we will have a look at the rights of third country
nationals because a provision dedicated to them explicitly
mentions recognition of qualifications:
According to Art. 11 Directive 2003/109/EC (the so
called “Long-term-Residence Directive”)11 third country
nationals with the right to long-term residence in an EU
Member State can require equal treatment with nationals
of their host state in certain respects, among which the
recognition of qualifications is explicitly mentioned. Yet,
one has to keep in mind that the “Long-term-Residence
Directive”, according to its Article 3 II a) does not apply
to third country nationals that reside in their host state
in order to pursue studies. Consequently in many cases,
in which academic recognition is sought, Art. 11 of
Directive 2003/109/EL will not be pertinent (but it is – at
least according to its wording – applicable in cases, in
which a third country national resides in a member state
for the purpose of employment, but aims to pursue
studies additionally).
It can be discussed whether third country nationals
can claim not to be discriminated by reason of nationality
due to Art. 21 II of the Charter on fundamental rights of
the European Union (thereafter: EUChFR).12 Even if this
would be the case, however, this provision is only binding
on the institutions and bodies of the Union as well as on
the Member States when implementing EU law (Art. 51 I
1 EUChFR). Because – as mentioned above – there is
currently no EU law dealing with academic recognition
for third country nationals (beside Art. 11 Long-term-
Residence Directive), this provision is typically not
applicable.
bb) EU citizens (and family members)
Although Art. 21 II EUChFR undoubtedly protects EU
citizens its importance for them might be in effect not
bigger than for third country nationals: as decisions on
academic recognition are not determined by EU law at
the moment, one can argue that the member states
thereby do not implement EU law, so Art. 21 II EUChFR
is not applicable.
Nevertheless EU citizens can demand not to be
discriminated directly or indirectly13 by reason of
nationality due to Art. 18 I TFEU. Art. 18 I TFEU is
directly applicable14 as long as the situation falls within
the scope of the treaty. As – what was mentioned before
– Art. 165 TFEU allows the EU to encourage academic
recognition and Art. 21 TFEU principally opens way to
free movement of EU citizens within the Union the
scope of application of the treaty is given whenever
recognition across borders is sought.15
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16 Directive 2004/38/EC of the European Parliament and of the
Council of the 29th of April 2004, OJ L 158, 30.4.2004, p. 77.
17 Art. 24 I Directive 2004/38/EC meets all conditions the CJEU
formulated for acknowledging a directive to be directly effective
(to these conditions see e.g. Case C‑282/10 Dominguez,
EU:C:2012:33 para. 33 and the case law cited): a directive (which
has not or not correctly been transposed into national law) is
directly effective when it is “unconditional” and “sufficiently
precise” (for more details see e.g. Klammert/Loewenthal, in: Kellerbauer/
Klamert/Tomkin (eds.), The EU Treaties and the Charter
of Fundamental Rights, 2019, Art. 288 comment 30–40).
18 CJEU Case C‑333/13 EU:C:2014:2358 = NVwZ 2015, 145 –
Dano, para. 67–82; Case C‑67/14 EU:C:2015:597 = NVwZ 2015,
1517; NJW 2016, 555 – Alimanovic, para. 48–63.
19 In Case C‑67/14 (= NVwZ 2015, 1517; NJW 2016, 555) – Alimanovic
the CJEU pointed out, that a claimant residing in a foreign
member state in compliance with the provisions of the CRD can
nevertheless be discriminated on the basis of Art. 24 II CRD. The
CJEU did not discuss whether Art. 18 TFEU could hinder such
discrimination: Obviously according to the CJEU Art. 18 TFEU is
not opposed to secondary law like Art. 24 II CRD which explicitly
permits discrimination of EU citizens within the scope of application
of the treaty, because Art. 21 I TFEU allows to restrict the
right of free movement through secondary law.
20 Case C‑333/13 (= NVwZ 2015, 145) – Dano; Case C‑67/14 (=
NVwZ 2015, 1517; NJW 2016, 555) – Alimanovic, para. 48–63.
See also Epiney, in: Calliess/Ruffert (eds.), EUV/AEUV, 5th ed.,
2016, Art. 18 Rn. 19.
21 See CJEU Case C‑274/96 – Bickel und Franz; Case C‑322/13 –
Grauel Rüffer: in these decisions the CJEU affirmed the violation
of Art. 18 TFEU without reference to Art. 24 CRD; the petitioners
in this cases did not reside in a foreign member state.
22 The conventions and declarations with relevance for Germany
are collected and presented online by the „Conference of the
Ministers for Cultural Affairs“, see https://www.kmk.org/zab/
zentralstelle-fuer-auslaendi-sches-bildungswesen/allgemeineszur-
anerkennung/veroeffentlichungen-und-beschluesse/akademische-
anerkennung.html (15.2.2020).
23 Signed in Lisbon on the 11th of April 1997, Council of Europe –
European Treaty Series No. 165.
24 Bergan/Rauhvergers, The Council of Europe/UNESCO (Lisbon)
Recognition Convention – what it is and how to use it, in: Council
of Europe (ed.), Standards for recognition: the Lisbon
Recognition Convention and its subsidiary texts, 2005, p. 8;
Hochschulrektorenkonferenz (ed.), Anerkennung von im Ausland
erworbenen Studien- und Prüfungsleistungen – Ein Leitfaden
für Hochschulen, 2013, https://www.hrk-nexus.de/uploads/
media/nexus_Leitfaden_Anerkennung_Lang_01.pdf (15.2.2020),
p. 9.
A further and probably even more promising
provision for EU citizens and – moreover – their third
state national family members is Art. 24 of the Directive
2004/38/EC16 (the so called „Citizen’s Rights Directive“;
thereafter: CRD): It also provides the right of equal
treatment and is applicable to all EU citizens residing in
a foreign Member State, as long as their residence
conforms to the regulations of the directive. If not
transposed correctly into national law, Art. 24 I CRD has
the potential to be directly effective.17 The relation
between Art. 18 TFEU and Art. 24 I Directive 2004/38/
EC is not easy to define: According to the CJEU Art. 24
CRD can be understood as (lawful) specification of Art.
18 TFEU.18 It is therefore the crucial provision in cases in
which EU citizens reside in a foreign member state in
accordance with the CRD.19 Vice versa, the CJEU stated
that a person residing in a foreign member state against
the provisions of the CRD can neither claim equal
treatment from Art. 24 CDR nor from Art. 18 TFEU
(because he or she does not act within the “scope of the
treaty”, which allows to limit free movement of EU
citizens without economic purpose through secondary
law, s. Art. 21 I TFEU).20 For petitioners that do not
reside in a foreign member state — so that Art. 24 CRD is
not applicable — Art. 18 TFEU is decisive.21
b) International law
We will go on with a look at the legal sources that can be
found in international law.
Although there is a big variety of international
agreements and declarations dealing with the
international recognition of higher education
qualifications from the perspective of almost all EU
member states22 the by far most important agreement is
the Convention on the Recognition of Qualifications
concerning Higher Education in the European Region,23
the so called Lisbon Recognition Convention. It was
concluded in 1997 within the framework of the Council
of Europe and the European Section of the UNESCO.
After the Fall of the Iron Curtain, facing an increase of
international mobility, an increase of importance of
tertiary education and also an increase of diversity
therein, its authors aimed at replacing older recognition
agreements which (at least the most important among
them) dated back to the late 1950th in order to facilitate
student mobility to be able to meet the requirements of
rising “globalisation”.24 Up to now the Lisbon Recognition
Convention has been ratified by 53 states and the Holy
See, among others all Member States of the European
Union (besides Greece), further Member States of the
Council of Europe like Switzerland, Norway or The
Penßel · Higher Education Diplomas and Qualifications 1 0 5
25 Germany signed the Lisbon Recognition Convention on the 11th
of April 1997. It was transformed into national law by the Statue
concerning the Convention on the recognition of qualifications
concerning higher education in the European region from the
16th of May 2007. This statute and the wording of the Lisbon
Recognition Convention in English, French and German is
published in: BGBl. 2007, part II no. 15, pp. 712–732. An updated
list of signatures and ratifications is presented on the website of
the Council of Europe: https://www.coe.int/en/web/conventions/
full-list/-/conventions/treaty/165 (15.2.2020).
26 „Abkommen zwischen der Regierung der Bundesrepublik
Deutschland und der Regierung der Französischen Republik über
die Anerkennung von Abschlüssen, Graden und Studienzeiten im
Hochschulbereich“ of the 31th of March 2015, BGBl. 2016,
part II no. 3, pp. 124–126 (Agreement between Germany and
France concerning the recognition of degrees, grades and periods
of study in the field of higher education).
27 „Abkommen zwischen der Regierung der Bundesrepublik
Deutschland und der Regierung des Königreichs Spanien über
die Anerkennung von Gleichwertigkeiten im Hochschulbereich“
of the 14th of November 1994, BGBl. 1996, part. 2 no. 12, pp.
332–333 (Agreement between Germany and Spain concerning the
recognition of equivalences in the field of higher education).
28 Pursuant to Art. II.3 Lisbon Recognition Convention those provisions
precede the Lisbon Recognition Convention.
29 Among the treaties with persistent relevance for Germany see
e.g. the European Convention on the Equivalence of Periods
of Universtity Study, signed in Paris on the 15th of December
1956 (Council of Europe – European Treaty Series Nr. 21), the
European Convention on the General Equivalence of Periods of
Study, signed in Rome on the 6th of November 1990 (Council of
Europe – European Treaty Series Nr. 138) (which both preceded
the regulations of Art. V Lisbon Recognition Convention) and
the European Convention on the Academic Recognition of University
Qualifications, signed in Paris on the 14th of December
1959 (Council of Europe – European Treaty Series Nr. 32) (which
preceded the regulations of Art. VI Lisbon Recognition Convention).
30 Actors in German Administration dealing with academic recognition
share this interpretation (see e.g. Hochschulrektorenkonferenz
(ed.), Anerkennung (fn. 24), p. 14 and in particular chapter
III: „Von der Gleichwertigkeit zum wesentlichen Unterschied“;
see furthermore the Letter of the Head of the German
Accreditation Council of the 27th of September 2011 concerning
the implementation of the Lisbon Recognition Convention, Az.
233/11 http://archiv.akkreditierungsrat.de/fileadmin/Seiteninhalte/
AR/Sonstige/AR_Rundschreiben_Lissabon1.pdf (15.2.2020):
„Dabei (bei der Entscheidung über die Anerkennung, R.P.) liegt
der Fokus der Bewertung der Hochschule nicht mehr auf der
„Gleichwertigkeit“ oder „Gleichartigkeit“ der anzuerkennenden
Qualifikation, sondern auf der Wesentlichkeit von Unterschieden.
Da bei der Feststellung unwesentlicher Unterschiede die extern
erbrachten Hochschulqualifikationen anerkannt werden (…)
bringt dies einen größeren Spielraum als bisher“). Although the
terms „equivalence“ and „lack of substantial difference“ could
linguistically also be synonyms, the motifs which led to the
conclusion of the Lisbon Recognition Convention indicate that
they should stand for a different scale. It is not so easy to describe
that difference in a way that makes it operable for legal descisions.
However, the new terminology at least clarifies that recognition is
not hindered through bigger differences as long as those
differences are not „substantial ones“.
Russian Federation, and even states outside Europe such
as Canada, Australia or New Zealand.25
Although several parties of the Lisbon Recognition
Convention have also signed more favourable bilateral
recognition agreements with other states (e.g. Germany
with France26 or Spain27)28 and there also exist numerous
recognition agreements concluded with states that are
not parties of the Lisbon Recognition Convention, most
of the cases in practice are covered by the Lisbon
Recognition Convention: With 54 parties all over and
outside Europe this agreement has definitely the widest
scope. Therefore this article will concentrate on the
provisions and on the implementation of this treaty and
leave other treaties aside.
The Lisbon Recognition Convention deals with the
recognition of “qualifications giving access to higher
education” (which shall not be the topic of this article),
of “periods of studies”, which means qualifications
obtained within a course of study, and “qualifications”,
which the convention defines as certificate attesting the
successful completion of a course of study. This article
will concern both: qualifications obtained within a
course of study and qualifications obtained through
completion of a course of study, because both of them
are relevant for student mobility, and at least in practice
the problems with recognition of “periods of study” are
even bigger than those caused by the recognition of final
“qualifications”.
The key provision in the Lisbon Recognition Convention
for the recognition of qualifications is Art. VI. 1. It states that
“to the extent that a recognition decision is based on the
knowledge and skills certified by the higher education
qualification, each Party shall recognize the higher
education qualifications conferred in another Party, unless a
substantial difference can be shown between the qualification
for which recognition is sought and the corresponding
qualification in the Party in which recognition is sought.”
Art. V.1. applies the same scale to the recognition of “periods
of study”: it has to take place “unless substantial differences
can be shown between the periods of study completed in
another party and the part of the higher education program
which they would replace”. In comparison with former
recognition agreements the Articles V.1 and VI.1 facilitate
positive recognition decisions in two dimensions: While
former agreements demanded recognition only in cases of
“equivalence” of qualifications29 Art. V.1 and Art. VI.1
Lisbon Recognition Convention obviously aimed to
establish a lower standard of conformity (which it calls:
“lack of substantial differences”)30 and addresses thereby
not the examination itself, but the learning outcome
(“knowledge and skills”) certified through the formal
qualification. And while according to former agreements
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31 See e.g. OVG Münster, Urt. v. 20.6.2017, Az. 14 A 1776/16,
NWVBl. 2017, 534.
32 See e.g. OVG Berlin-Brandenburg, Beschl. v. 26.9.2012, Az. 10 M
33.11 – juris.
33 For some examples see fn. 29.
34 It states: „The Parties to this Convention … attaching great importance
to the principle of institutional autonomy, and conscious
of the need to uphold and protect this principle …have agreed as
follows:…“
35 Directive 2005/36/EC of the European Parliament and of the
Council of 7 September 2005 on the recognition of professional
qualifications, OJ L 255, 30.9.2005, pp. 22–142. For further
information and reflection about this directive see e.g. Ludwig,
Der europarechtliche Einfluss auf die Entwicklung des nationalen
Heilberuferechts, 2018, pp. 139 seq.; Waschkau, EU-Dienstleistungsrichtlinie
und Berufsanerkennungsrichtlinie: Analyse der
Auswirkungen auf das Recht der freien Berufe in Deutschland
unter besonderer Berücksichtigung der Rechtsanwälte, Steuerberater
und Wirtschaftsprüfer, 2008, pp. 72–104; Frenz, Die Berufsanerkennungsrichtlinie
und verbliebene sektorale Richtlinien,
GewArch 2011, pp. 377–384; Tomkin, in: Kellerbauer/Klamert/
Tomkin (eds.), The EU Treaties and the Charter of Fundamental
Rights, 2019, Art. 53 comment 9–16 (short summary of its content).
the onus of presentation and the burden of proof (for
equivalence) lay with the applicant, the Lisbon Recognition
Convention obliges the parties to recognize a qualification
unless the recognizing authority can demonstrate and prove
a “substantial difference”. Beyond that, the Convention tries
to encourage recognition through various procedural rules.
For example, it obliges the parties to provide that procedure
and criteria for decisions on recognition are “transparent,
coherent and reliable” (Art. III.2), that decisions are made
within a reasonable time limit specified beforehand (Art.
III.5) and that in case of a negative decision, the applicant
has the right to make an appeal. Art. VI.3 defines the legal
effect of recognition of “qualifications” in the sense of the
Lisbon Recognition Convention: “Recognition in a Party of
a higher education qualification issued in another Party
shall have one or both of the following consequences: a)
access to further higher education (…) on the same
conditions as those applicable to holders of qualifications of
the Party in which recognition is sought, (or) b) the use of
an academic title, subject to the laws and regulations of the
Party (…) in which recognition is sought. In addition,
recognition may facilitate access to the labour market
subject to laws and regulations of the Party (…) in which
recognition is sought.” From that, we can see that the Lisbon
Recognition Convention is dedicated to academic
recognition and does not impose obligations on its parties
concerning professional recognition.
The Lisbon Recognition Convention being an instrument
of international law, we have to answer the question
what legal effects its provisions have after fulfilling the
constitutional conditions of the ratifying states to set
them into force within their national law (if there are
such). The question is not easy to answer. Obviously different
views on that can be found within, for example,
the German jurisdiction: while some German courts decided
cases within the scope of the Lisbon Recognition
Convention without mentioning it31 in other decisions
provisions of the Lisbon Recognition Convention are explicitly
mentioned and treated as directly applicable
law.32
A closer look at the key provisions of the Lisbon
Recognition Convention reveals that they are not
applicable without being specified by the parties.
Although the conditions for recognition formulated in
Art. VI.1 could be perceived to be precise enough for
direct application, Art. VI.3 of the Convention opens a
margin to define their legal effects. This margin has to be
filled by national law. Moreover the Convention (like all
of its preceding conventions)33 shows respect for the
autonomy of higher education institutions and therefore
imposes obligations explicitly not on them but only on
the signatory states with the proviso to implement them
without violating the autonomy or freedoms of higher
education institutions. Therefore it can be referred to
Consideration 634 and even more to Art. II.1 p. 1 Lisbon
Recognition Convention: The latter shows that when the
decision in recognition matters lies with individual
higher education institutions, which for academic
recognition is the case in almost all European countries,
the Party is only obliged to transmit the text of the
Convention and to take all possible steps to encourage
the favourable consideration and application of its
provisions. Consequently the provisions of the Lisbon
Recognition Convention concerning academic
recognition are not directly applicable and need
implementation through national law.
Therefore we can conclude that in the field of academic
recognition directly binding provisions can only be found
in national law. - Provisions concerning recognition for the purpose of
(self-)employment (Professional Recognition)
We will now turn our attention to the legal sources that
are relevant for professional recognition:
a) European Union Law
aa) EU citizens
On the basis of Articles 46, 53 and 62 TFEU, Parliament
and Council have issued the Directive 2005/36/EC35 on
the recognition of professional qualifications. This
directive applies to EU citizens who seek recognition for
Penßel · Higher Education Diplomas and Qualifications 1 0 7
36 For further details (which also address the profession of a
midwife in Art. 40–43) see Art. 21–49.
37 For specification of these – here simplified – guidelines see
Art. 1–14 Directive 2005/36/EC. German federal law transposes
them through the Statute concerning the assessment of equivalence
of professional qualifications (Gesetz über die Feststellung
der Gleichwertigkeit von Berufsqualifikationen) of the 6th of
December 2011 (especially its §§ 9–13).
38 To the dispute whether, in addition, Art. 21 II EUChFR is pertinent
(within its scope described in Art. 51 EU-ChFR) , see fn. 12.
39 See above I. 1. b).
40 Concerning the number of students enrolled it takes the third
place after Russia and Turkey, see Figure 1.1 Bologna Process
Implementation Report (fn. 2), p. 23.
41 Figure 4.14, Bologna Process Implementation Report (fn. 2),
p. 144.
qualifications which are necessary to take up or pursue a
regulated profession in another Member State.
For five academic and one nonacademic professions
(doctors, nurses responsible for general care, dental
practitioners, veterinary surgeons, pharmacists,
architects) the directive formulates minimum standards
for professional training and combines that with the
introduction of the principle of automatic recognition.
That means that recognition has to take place without
any (further) check of equivalence or similarity, if the
claimants qualification actually fulfills the requirements
laid down in the directive (see Art. 21).36
For all other regulated academic and nonacademic
professions each Member State is obliged to offer a
procedure that leads to recognition under the same
conditions that apply to its nationals (Art. 13). That
means that a qualification has to be recognized, when it
is equivalent to the necessary qualification issued in the
host state. If there are substantial differences, the host
state must open way to compensate them through either
completing an adaption period (of up to three years) or
passing an aptitude test.37
This directive is accompanied by the general
provisions conferring the right to equal treatment, which
were already mentioned above: Art. 24 CRD in cases of
legal residence in another Member State; Art. 18 TFEU
and Art. 21 II EUChFR, which both will be usually
applicable as professional recognition is, as we have seen,
widely regulated through EU law.
bb) Third country nationals
Third country nationals also enjoy the right to equal
treatment in certain circumstances defined in Directive
2003/109/EC, the already mentioned ”Long-term-
Residence Directive”. According to its Art. 11, persons
with the right to long-term residence have to be treated
like nationals inter alia in case of recognition of
professional qualifications.38
b) International law
Approaching the field of international law we have
already seen that professional recognition is not
determined through the provisions of the Lisbon
Recognition Convention.39 Therefore, international law
with a comparable scope does not exist.
c) National law
As a result we can note that in the field of professional
recognition directly binding provisions are also basically
found in national law. But unlike national law concerning
academic recognition it is not only determined by
international law, which can be violated by the parties
without provoking a certain effect within national law. In
the field of regulated professions, national law is widely
determined through EU law (especially Directive
2005/36/EC) whose provisions influence the
interpretation of national law and can have direct effect
if they are not transposed correctly.
II. Selective difficulties in the implementation of the
rules concerning academic recognition from the
perspective of German law
Considering the given legal framework, this paragraph
will illustrate some reasons why currently recognition
practice still “falls short of expectations”, as the 2018
Bologna Report states. It will concentrate on the field of
academic recognition, as therein – in default of any
harmonization through EU law – the obstacles to
“automatic” or even “broad” recognition are bigger. To
identify at least some of them we will take a look at the
implementation of the rules presented in chapter I. 1. in
Germany, which is due to its size, population and
corresponding number of higher education institutions
a relevant factor within the EHEA.40 The reasons for
shortcomings in implementation in other states might be
different, or elsewhere maybe even similar.
According to an analysis documented in the 2018
Bologna Report Germany is among 18 (from in total 47)
EHEA countries which specified all 5 key principles of
the Lisbon Recognition Convention in national law.41 As
those key prinicples the analysis identifies (correctly)
that
1) applicants have right to fair assessment,
1 0 8 O R D N U N G D E R WI S S E N S C H A F T 2 ( 2 0 2 0 ) , 1 0 1 – 1 1 4
42 There are still exceptions: E.g. § 23a I 1 of the Berlin Statute on
Higher Education Institutions (according to which „comparable“
qualifications have to be recognized) or the Statute on Higher
Education Institutions of Mecklenburg-West Pomeria (which
fully delegates the definition of criteria for recognition to the
regulations of the Higher Education Institutions, see § 38 II
Nr. 8).
43 Thereby the legislator indicates that there is a difference between
„equivalence“ and „lack of substantial difference“ (to that
question see more in fn. 30. Against this approach Birnbaum, in:
BeckOK HochschulR NRW, 13. Ed. 1.12.2019, § 63a 23 b, who
regards the two parts of s. 1 to be a contradictio in adiecto.
44 Free translation of the original text: „Prüfungsleistungen, die in
Studiengängen an anderen staatlichen oder staatlich anerkannten
Hochschulen, an staatlichen oder staatlich anerkannten
Berufsakademien, in Studiengängen an ausländischen staatlichen
oder staatlich anerkannten Hochschulen oder in einem anderen
Studiengang derselben Hochschule erbracht worden sind, werden
auf Antrag anerkannt, sofern hinsichtlich der erworbenen Kompetenzen
kein wesentlicher Unterschied zu den Leistungen besteht, die
ersetzt werden; eine Prüfung der Gleichwertigkeit findet nicht statt.
Das Gleiche gilt hinsichtlich Studienabschlüssen, mit denen Studiengänge
im Sinne des Satzes 1 abgeschlossen worden sind. Die
Anerkennung im Sinne der Sätze 1 und 2 dient der Fortsetzung
des Studiums, dem Ablegen von Prüfungen, der Aufnahme eines
weiteren Studiums oder der Zulassung zur Promotion.“
45 See Figure 4.15, Bologna Process Implementation Report (fn. 2),
p. 145.
46 Only for study programms which are completated by a
stateexaminiation the competence for recognition lies with the
respective state examination authorities.
2) there is recognition if no substantial differences can be
proven,
3) legislation or guidelines encourage comparing of
learning outcomes rather than program contents,
4) in cases of negative decisions the competent
recognition authority demonstrates the existence of
substantial difference, and the
5) applicant‘s right to appeal.
Actually all these principles are either by means of law or
by means of guidelines acknowledged in the German
recognition practice. Still, the German recognition
practice cannot be described as a practice of completely
or almost “automatic recognition” and has problems to
ensure transparency, coherence and reliability as demanded
through Art. III.2 Lisbon Recognition Convention.
A closer look at the German situation reveals at least
some reasons for these deficiencies: - The implementation of the Lisbon Recognition Convention
through regulations of the Länder and higher
education institutions
In Germany, being a federal state, legislative power
concerning institutions of higher education falls within
the competences of the 16 Länder (German constituent
states). All of them offer a somewhat differing legal
framework that has to be filled in by regulations of higher
education institutions, which enjoy the power to regulate
their own matters as part of their “academic freedom”
guaranteed in Art. 5 III of the German constitution.
Most, although still not all, Statutes of the German
Länder dealing with academic recognition have modified
the wording of the relevant provisions by adopting the
“Lisbon terminology”: they no longer demand
“equivalence” but offer recognition “despite substantial
differences are given“.42 Some of them specify that
“substantial differences” hindering recognition must
affect “knowledge and skills” certified with a certain
qualification, that means they must affect the “learning
outcome”. An example is § 63a of the North Rhine
Westfalian Statute on Higher Education Institutions,
which states in paragraph 1: “1Examinations that have
been passed in courses of study at another state or state
approved academy (in Germany) as well as examinations
that have been passed in courses of study offered by a
foreign state or state approved academy will be
recognized upon request despite the competences obtained
differ substantially from those that shall be substituted.” In
2019 there was appended: “an assessment of equivalence
will not take place”.43 S. 2 and 3 completes: “2 The same
applies to final degrees that complete courses of study in
the sense of S. 1. 3 Recognition in the sense of s. 1 and 2
aims at pursuance of further studies, passing of
examinations, the take up of another course of study or
access to doctoral studies. (…).”44
However the respective statutory law of the Länder
usually does not specify when „substantial differences“
are given. They abstain from that in order to safeguard
the autonomy of higher education institutions, which in
Germany, like in the vast majority of the EHEA
countries,45 are the competent authorities for academic
recognition.46
As a consequence, precise criteria for recognition
have to be taken from the regulations of higher education
institutions. These regulations on recognition vary
significantly in content and terminology – a fact that
renders them sometimes difficult to handle. Not all of
those regulations specify the “Lisbon Standard” at all.
Penßel · Higher Education Diplomas and Qualifications 1 0 9
47 Allgemeine Studien- und Prüfungsordnung für die Bachelor- und
Masterstudiengänge der Philosophischen Fakultät und Fachbereich
Theologie der Friedrich-Alexander-Universität Erlangen-
Nürnberg of the 27th of September 2007, lately changed at the
28th of August 2019. www.doc.zuv.fau.de//L1/PO/Phil/APO_Bachelor_
Master/konsolidierte_Fassungen/Allg_StuO_PrO_%20
BA-MA_%20Phil_ABMStPO_Phil_20070927_idF_20190828.pdf
(15.2.2020).
48 Free translation of the original wording: Studienzeiten, Module,
Studienleistungen und Prüfungsleistungen, die in anderen Studiengängen
an der FAU oder an anderen staatlichen oder staatlich
anerkannten Hochschulen in der Bundesrepublik Deutschland
(…) oder in Studiengängen an einer ausländischen Hochschule
erbracht worden sind, werden bei einem Studium nach dieser
Prüfungsordnung anerkannt, außer es bestehen wesentliche
Unterschiede hinsichtlich der erworbenen Kompetenzen.
49 Free translation of the original wording in § 13 IV 1, 2 Allgemeine
Prüfungsordnung für Bachelor- und Master-Studiengänge
sowie sonstige Studiengänge an der Universität Göttingen,
Stand: AM I Nr. 54 v. 9.11.2017: „1Studienzeiten, Studien- und
Prüfungsleistungen beziehungsweise Kompetenzen, die in anderen
Studiengängen oder außerhalb einer Hochschule erbracht
wurden, werden auf Antrag angerechnet, soweit kein wesentlicher
Unterschied gegenüber den Kompetenzen, die im Falle eines
Studiums an der Universität Göttingen erworben worden wären,
festgestellt werden kann; (…) 2Kein wesentlicher Unterschied
besteht jedenfalls, wenn die auf Grund eines Moduls vermittelten
Kompetenzen beziehungsweise Lernergebnisse, Qualität und
Niveau der Ausbildung sowie Anrechnungspunkte denjenigen
von Modulen des Studiengangs im Wesentlichen entsprechen.“
Other regulations of higher education institutions try to define
the recognition criteria more precisely, but might thereby fail to
meet the requirements of the Lisbon Recognition Convention.
An example is the Examination Regulation for the Bachelor in
History at the Ludwig-Maximilians-University in Munich (Prüfungs-
und Studienordnung der Ludwig-Maximilians-Universität
München für den Bachelorstudiengang Geschichte v. 16.3.2010,
https://www.uni-muenchen.de/aktuelles/amtl_voe/0400/493-
09ge-ba-10-ps00.pdf (15.2.2020)), which states in § 26 III, IV:
„Qualifications achieved at foreign academies will be normally
recognized besides they are not equivalent. Qualifications are
equivalent when they essentially conform to the local course of
study in content, quantity and in its demands.” (in German: „(3)
Studienzeiten, Studien- und Prüfungsleistungen, die an ausländischen
Hochschulen erbracht worden sind, werden in der Regel
anerkannt, außer sie sind nicht gleichwertig. (4) 1Studienzeiten,
Studien- und Prüfungsleistungen sind gleichwertig, wenn sie in
Inhalt, Umfang und in den Anforderungen denjenigen dieses
Bachelorstudiengangs an der Ludwig-Maximilians-Universität
München im Wesentlichen entsprechen“.) This provision adopts
the Lisbon Recognition Convention insofar as it confers the burden
of proof to the recognizing authority. However, as criterion
for recognition it requires “equivalence” in “content, quantity
and demand”. This might contravene the intention of the Lisbon
Recognition Convention outlined above, at least when it leads to
an restrictive understanding of „equivalence“.
50 Hochschulrektorenkonferenz (ed.), Anerkennung (fn. 24),
p. 2. It resumes: The crucial question in the assessment of given
(potentially „substantial“) differences is whether the qualification
achieved in a foreign country will enable the student to pursue
his or her studies sucessfully. Only when the sucess of subsequent
studies is doubtful, a „substantial“ difference can be approved.
51 See Lisbon Recognition Convention Committee, Revised Recommendation
on Criteria and Procedures for the Assessmet of
Foreign Qualifications, adopted at its 5th meeting, 23. June 2010;
Recommendation No. 36.
52 Hochschulrektorenkonferenz (ed.), Anerkennung (fn. 24), p. 25,
taken from Bergan/Hunt (eds.), Developing Attitudes to Recognition:
Substantial Differences in an Age of Globalization. Council
of Europe Higher Education Series No. 13, Strasbourg, 2009, p. 9.
Some of them abstain completely from specification and
merely repeat the wording of the Länder legislation. An
example is § 15 of the General Examination Regulation
for Bachelor and Master Studies at the Faculty of
Philosophy at the Frederick Alexander University
Erlangen-Nuremberg,47 which states: “Periods of study
and qualifications that have been achieved in courses of
study at another state or state approved academy in
Germany (…) or qualifications that have been achieved
in courses of study offered by a foreign academy will be
(…) recognized despite the learning outcomes are
substantially different.“48
Others formulate a definition which does not fully
live up to its purpose. This is for example the case when
the Examination Regulation for Bachelor and Master
Studies at the University of Göttingen explains that “a
substantial difference is at least not given, if (the
qualification) (…) substantially corresponds to the
qualification it shall substitute”.49
None of the regulations that were checked for the
preparation of this article took over the (however not
legally binding) specifications of “substantial
differences” proposed in documents published by the
Council of Europe and in the relevant Manual issued
by the Hochschulrektorenkonferenz:50 They did not
adopt that – according to the Lisbon Recognition
Convention Committee – only those differences can
justify the denial of recognition which are “substantial
in view of the purpose for which recognition is
sought”.51 And none of them took over the even more
precise and far-reaching specifications referred by the
Manual of the Hochschulrektorenkonferenz, that
“essentially, substantial differences are (only) those
that may have a serious impact on the fitness of the
qualification for the purpose for which the learner
would like to use it”52 and that “substantial differences
1 1 0 O R D N U N G D E R WI S S E N S C H A F T 2 ( 2 0 2 0 ) , 1 0 1 – 1 1 4
53 Hochschulrektorenkonferenz (ed.), Anerkennung (fn. 24), p. 25,
taken from Lifelong Learning Programme (ed.), European Area of
Recognition Manual. Practical Guidelines for Fair Recognition of
Qualifications, p. 42.
54 Thus not all of them provide what is recommended in III. 6. of
the (not legally binding) Revised Recommendation on Procedures
and Criteria for the Assessment of Foreign Qualifications and
Periods of Study (fn. 51): that „(…) criteria for the assessment of
foreign qualifications should be transparent, coherent and reliable
and they should periodically be reviewed …“.
55 See fn. 30.
56 For an extensive debate on this and other aspects of the respective
decisions see Morgenroth, Wesentlicher Unterschied oder „der
Sache nach erbracht“ – neue Entwicklungen zur Anerkennung
von Prüfungsleistungen an staatlichen Hochschulen, DÖD 2018,
pp. 177–192.
57 OVG Münster, Urt. v. 20.6.2017, Az 14 A 1776/16, NWVBl 2017,
534.
58 VG Aachen Urt. V. 29.6.2016, Az. 6 K 1107/16- juirs, para. 15.
59 Ibd. para. 33.
60 OVG Münster, Urt. v. 16.12.2015 – 14 A 1263/14, DÖV 2016,
353 = NWVBl 2016, 212.
61 OVG Münster, Urt. v. 20.6.2017, Az 14 A 1776/16 (= NWVBl
2017, 534), para. 36; Urt. v. 16.12.2015 – 14 A 1263/14 (=NWVBl.
2016, 212), para. 23.
62 BVerwG, Beschl. v. 9.1.2018, Az. 6 B 63/17, NVwZ-RR 2018, 308.
are differences between the foreign qualification and
the national qualification that are so significant that
they would most likely prevent the applicant from
succeeding in the desired activity such as further
study, research activity (…)”.53
If the criteria for recognition are not defined precisely,
decisions are only predictable for the applicant in cases
in which special agreements on equivalence exist (i.e. in
partnerships of individual higher education institutions).
In other cases, decisions remain fairly intransparent and
as a consequence of their unclear scale, not very reliable.
Therefore we can note that one obstacle for fair
recognition in Germany is that at least some higher
education institutions do not offer a precise definition of
recognition criteria complying with the requirements of
the Lisbon Recognition Convention.54 - Specification of recognition criteria in current
jurisdiction
Of even bigger relevance might be that the term „lack of
substantial differences“ has recently been specified in
jurisdiction. Thereby the courts did not only identify “lack
of substantial difference” with “equivalence” (which might
barely comply with the Lisbon Recognition Convention if
“equivalence” is interpreted in an appropriate way).55
Moreover they defined “equivalence” through specifications
that contravene not only the intention but also the wording
of the Lisbon Recognition Convention:56 in 2017 the OVG
Münster, the Higher Administrative Court of North
Rhine Westfalia,57 had to rule on whether a Czech
student can demand recognition for her master’s thesis,
prepared and assessed at the Czech University of Life
Sciences in Prague. According to the defendant’s
argumentation before the Court of First Instance (the
Administrative Court of Aachen) recognition for the
purpose of further education had to be denied because
the master’s thesis had been prepared in different
circumstances and because it has not been written in
German or English, which would have been obligatory
according to the examination regulation of this course of
studies at the German university.58 The Court of First
Instance affirmed that the fact that the claimants master’s
thesis had not been written in German of English
constitutes a “substantial difference“.59 In that context,
the OVG Münster had to decide whether “substantial
differences” in the understanding of § 63a North Rhine
Westfalian Statute on Higher Education Institutions had
been proven. The court declared according to a preceding
decision in 201560 that substantial differences are only
absent when the qualification to be recognized,
corresponds to the qualification that is to be substituted
in respect of content and quantity of the examinated
subject matter and in respect of form and length of the
examination. Higher education institutions could only
be obliged to recognize a foreign qualification that is so
close to the demanded qualification that it could be
called “the same in substance” (in German: wenn die
Qualifikation “in der Sache erbracht” wurde).61 The
claimant’s master thesis missed that standard as it dealt
with a subject the student would not have been able to
choose at her new university – as the subject of the
master thesis could in general not be chosen freely there.
According to the court, this interpretation of the term
“lack of substantial differences” is necessary, as otherwise
the academic freedom guaranteed within the German
constitution (Art. 5 III GG) would be violated. The
Bundesverwaltungsgericht (BVerwG), the Highest
Administrative court in Germany, confirmed this
decision in 201862 by adding the argument that any more
generous standard of recognition would be an
Penßel · Higher Education Diplomas and Qualifications 1 1 1
unconstitutional discrimination of local students: To
safeguard equality of opportunities (guaranteed by Art. 3
I i.V.m. Art. 12 I GG) only those examinations can be
recognized that “coincide with regard to content and
examination conditions”.63 It even indicates that it would
mean an unconstitutional discrimination of local
students if qualifications are recognized that have (only)
been formulated in a language which cannot be chosen
by local students, as those have to stick to the languages
offered by the examination regulation of their
university.64
When interpreting the law of North Rhine Westfalia,
the OVG Münster did not mention the Lisbon
Recognition Convention as background of the
reformulated scale for recognition decisions in present
legislation (which took the place of § 20 HRG, that
demanded the acknowledgment of “equivalence”). It did
not question whether the purpose of § 63a NRWHG or
its background in international law argued for an
interpretation that coincides with the intention of the
Lisbon Recognition Convention. And neither the OVG
Münster nor the Bundesverwaltungsgericht mentioned
Art. 24 CRD or Art. 18 TFEU, although the claimant
being an EU citizen residing in a host member state and
the denial of recognition because an exam was passed in
a foreign language could be an indirect discrimination
because of nationality.
It is highly doubtful, whether more generous
recognition obligations actually violate the German
constitution. It is not possible here to reflect about
this in detail.65 However, the author is convinced that
in the end this is not the case, e.g. as “disadvantages”
for local students can be justified through the purpose
of recognition, which lies in reducing disadvantages
that necessarily occur with any movement between
different higher education institutions, especially
across national borders and under the circumstance of
wide academic freedom which leads to significant
differences in study programs and higher education
qualifications (in order to benefit from the advantages
of mobility within and across national borders, as are
inter alia the widening of the students perspective on
their subject and the world in general or the promotion
of international understanding).66
And the decisions can furthermore be criticized due
to their complete ignorance of international law: 1) The
OVG Münster interpreted § 63a NRWHG without
mentioning its background in international law, although
German legal scholarship67 and case law68 has established
a principle called “völkerrechtsfreundliche Auslegung”.69
It demands that when the interpretation of a provision is
doubtful, an interpretation in accordance with (the
transposed) international law has to be chosen, as long as
it is feasible. 2) The decision of the BVerwG indicates that
it could or would be a violation of the German
constitution if qualifications passed in a foreign language
are recognized. This principle cannot be formulated
without asking the question whether it complies with
Art. 24 I CRD70 (which finally must be answered by the
CJEU):
Art. 24 I CRD in principle does not only prohibit
direct but also indirect discrimination because of
nationality. The understanding that the use of a
language different from the language of instruction at
the host university constitutes a „substantial
difference“ between qualifications in itself can be
63 Ibid. para. 9, in German: „Daher kommt eine Anerkennung zur
Wahrung der Chancengleichheit nach Art. 3 Abs. 1 i.V.m. Art. 12
Abs. 1 GG nur in Betracht, wenn die Studierenden den durch
die Prüfung zu erbringenden Nachweis bestimmter Kenntnisse
und Fähigkeiten bereits durch die anderweitige Prüfungsleistung
erbracht haben. Hierfür müssen beide Prüfungen in Bezug auf
Prüfungsstoff und Prüfungsbedingungen übereinstimmen.“
Therein the BVerwG affirms and strengthens a former decision
of the 22. of June 2016, Az. 6 B 21/16 (= NVwZ-RR 2016, 783),
especially para. 13–15.
64 BVerwG, Beschl. v. 9.1.2018, Az. 6 B 63/17 (= NVwZ-RR 2018,
308), para. 12.
65 For a detailled discussion see Morgenroth (fn. 56), pp. 183 seq.
66 In fact – in reverse – disadvantages of mobile students require
fair recognition and every denial of recognition must be justified
as it refuses compensation of those disadvantages. Concerning
academic freedom one has to answer whether the legal obligation
to recognize qualifications which are in a certain way comparable
to those required by the higher education institution itself
acutally means an enchroachment upon academic freedom.
Concerning this matter the Constitutional Court of Germany
(BVerfG) not only stated that the competence to pass examination
regulations is protected by the fundamental right of academic
freedom but also that „the organisation of scientific organisations
– including regulations on teaching and examination – is in principle
left to the legislator“ („die Ausgestaltung von Wissenschaftsorganisationen
einschließlich des Lehr- und Prüfungsrechts
(ist) grundsätzlich dem Gesetzgeber überlassen“, see BVerfG v.
26.6.2015, DÖV 2015, 888 (889, para. 19)).
67 See e.g. Tomuschat, Entscheidung für internationale Offenheit,
in: Isensee/Kirchhof (eds.), Handbuch des Staatsrechts, Vol. XI,
3rd ed., 2013, § 226 comment 36; Hofmann, Der Grundsatz der
völkerrechtsfreundlichen Auslegung, JURA 2013, pp. 326–333.
68 See e.g. BVerfGE 58, 1 (34); 74, 358 (370); BVerfG, Nichtannahmebeschl.
v. 28.9.2006, Az. 2 BvR 1731/04 — juris, Rn. 7–13;
BVerwGE 75, 285 (288); Hessisches Landessozialgericht, Urt.
v. 24.11.2010, Az. L 6 AS 168/08 — juris (= EuG 2011, 332–342),
para. 36.
69 This instrument, the „völkerrechtsfreundliche Auslegung“, must
not be perceived as a method of interpreting law which is added
to the methods commonly acknowledged. It can also – or even
better – perceived as a term to describe the systematic and teleological
interpretion of laws which were established to transpose
international law.
70 Or in cases in which the applicant does not reside in a host state:
with Art. 18 TFEU.
1 1 2 O R D N U N G D E R WI S S E N S C H A F T 2 ( 2 0 2 0 ) , 1 0 1 – 1 1 4
perceived as an indirect discrimination due to
nationality, as qualifications in other Member States,
which are typically achieved by the nationals of those
states, are typically demanded in the official language
of this Member State (or in English, however not in all
other official languages of the EU).
Therefore we have to answer the question whether
this kind of indirect discrimination can be justified.71 It
is assumed that (in general) justification fails: In most
academic studies the qualifications that have to be
obtained do not depend on the language in which they
have been presented. Insofar, a certain language is not
essential for that qualification (exceptions are possible,
for example when in studies of law it is a key competence
to be able to understand and use a certain language).
Besides, one has to keep in mind, that the proof of
whether the applicants German is good enough to follow
further studies in German (which could be the case
although he or she passed exams in a foreign language) is
necessary irrespective of the recognition of certain
qualifications. Sufficient language skills are an
independent, in general justifiable criterion for the mere
access to a German university. It is therefore neither
necessary nor reasonable to combine the recognition
decision with the proof, if the applicants German is good
enough to follow further studies in German.72
III. Conclusion
Those findings lead to the following conclusion: Even the
implementation in German law which was positively
evaluated within the 2018 Bologna Report falls short of
the demands of the Lisbon Recognition Convention in
different respects:
It does, at least partially, not provide precise, reliable
criteria for the lack of “substantial differences”.
And at least according to the prevailing case law it
allows recognition only in cases of strict “equivalence”
(by denying equivalence with arguments that conflict
with EU law). This is of great importance as in the end
it will be the national courts who decide on conflicts
about granting recognition.
From that, we can see that already better knowledge
and better consideration of the existing international law
could help to enhance recognition. Especially EU law,
even its guarantees of equal treatment, can foster
recognition, as it has supremacy over national law and
can be enforced through the bodies of the EU, mainly
through the CJEU. Therefore, professional recognition is
easier to enforce than academic recognition (which is
less determined by EU law). But that does not mean that
there is nothing left to do:
From the German perspective in some Länder a more
precise formulation of recognition standards in statutory
law would help. In addition it is useful that within the
process of assessment of higher education institutions
instruments are established to secure that higher
education institutions formulate precise and lawful
criteria for recognition,73 because without precise criteria
predictable, reliable decisions cannot be reached.
Zusammenfassung:
Der Artikel gibt einen Überblick über die rechtlichen
Regeln, die innerhalb der EU und des Europäischen
Hochschulraums für die Anerkennung von Hochschulleistungen
gelten. Dabei muss zwischen der Anerkennung
für die Zwecke der Erwerbstätigkeit und für die
71 To the possibility to justify discriminations generally prohibited
by Art. 18 TFEU see e.g. Epiney, in: Calliess/Ruffert (eds.), EUV/
AEUV, 5th ed., 2016, comment 37 with reference to relevant
jurisdiction of the CJEU. We assume that theses principles can be
transferred when interpreting Art. 24 CRD.
72 Insofar the decisions discussed here might be regarded as an
example for the conflation of the decision on whether to admit
or not to admit a student with the decision about wether to recognize
a particular qualification, which the 2018 Bologna Process
Implementation Report (fn. 2), p. 142, named as one of the
main prevailing obstacles for broad recognition. The arguments
presented above do not exclude that in certain cases an applicant
can be required to offer a (whole oder partial) translation of his
examination work if this is necessary to assess wether substantial
differences are given or not.
73 This has already been put into practice: According to the Rules
on Accredition of Courses of Study and Systems (Regeln für die
Akkreditierung von Studiengängen und für die Systemakkreditierung,
Stand: 20.2.2013, https://www.akkreditierungsrat.de/
sites/default/files/downloads/2019/AR_Beschluss_Regeln_Studienga-
enge_Systemakkreditierung_2013.02.20_Drs.20–2013.
pdf (15.2.2020), p. 11), issued by the German Accreditation
Council, the concept of a course of study has to formulate rules
for the recognition of foreign qualifications that comply with the
Lisbon Recognition Convention (free translation of the German
wording: „(Das Studiengangkonzept) legt die Zugangsvoraussetzungen
(…) fest sowie Anerkennungsregeln für an anderen
Hochschulen erbrachte Leistungen gemäß der Lissabon Konvention
…“.). However, provisions like this can only be applied
appropriately if it is clarified what kind of rules are required by
the Lisbon Recognition Convention.
Penßel · Higher Education Diplomas and Qualifications 1 1 3
Fortführung eines Studiums unterschieden werden.
Nach der Einführung in die Rechtslage wendet sich der
Artikel den Problemen zu, die bei der Anerkennung für
die Fortführung eines Studiums auftreten können, da
diese in der Praxis auf größere Hindernisse treffen kann,
weil es an einer Harmonisierung durch EU-Recht fehlt.
Zu diesem Zweck untersucht er die Umsetzung der internationalrechtlichen
Vorgaben der sog. “Lissabon Konvention”
(die unter allen für Deutschland gegenwärtig
geltenden Anerkennungsabkommen den weitesten
Anwendungsbereich hat) in das deutsche Recht. Dabei
prüft er das einschlägige Landesrecht und verschiedene,
beispielhaft ausgewählte Hochschulsatzungen darauf, ob
und inwiefern sie die Vorgaben der Lissabon-Konvention
umsetzen, nach der eine Hochschulleistung anzuerkennen
ist, wenn nicht “wesentliche Unterschiede” zu
der sie ersetzenden Leistung nachgewiesen werden können.
Anschließend prüft er die jüngst hierzu ergangene
Rechtsprechung (insbes. BVerwG, Beschl. v. 9.1.2018,
NVwZ-RR 2018, 333) darauf, ob sie den Vorgaben der
Lissabon-Konvention zur Durchsetzung verhilft. Dabei
kommt er zu dem Ergebnis, dass sie die Vorgaben der
Lissabon-Konvention konterkariert (indem sie eine
Anerkennung nur für zulässig erklärt, wenn die zu ersetzende
Leistung “in der Sache erbracht” wurde bzw. beide
Leistungen “in Bezug auf Prüfungsstoff und Prüfungsbedingungen
übereinstimmen”) und sich außerdem in
ihrer konkreten Begründung zu einschlägigem Unionsrecht
in Widerspruch setzt.
Renate Penßel ist Wissenschaftliche Mitarbeiterin am
Lehrstuhl von Prof. Dr. Heinrich de Wall für
Kirchenrecht, Staats- und Verwaltungsrecht an der
Friedrich-Alexander-Universität Erlangen-Nürnberg.
Ihre Arbeits- und Interessenschwerpunkte liegen im
geltenden und historischen Kirchen- und
Religionsverfassungsrecht und im Hochschulrecht